Protection of Non-Combatants During War from the Perspective of Imam Sarakhsi: A Comparative Study of Sharh al-Siyar al-Kabir and IHL

امام سرخسیؒ کے نزدیک دورانِ جنگ غیر مقاتلین کا تحفظ: شرحِ سیر الکبیر اور بین الاقوامی قانونِ انسانیت کا تقابلی مطالعہ

Abstract

This article examines the concept of the protection of non-combatants during armed conflict in the jurisprudence of Imām Shams al-Aʾimmah al-Sarakhsī (d. 483 AH), as articulated in Sharḥ al-Siyar al-Kabīr, and offers a comparative analysis with the principles and provisions of International Humanitarian Law (IHL). The study highlights that al-Sarakhsī’s approach is fundamentally based on the distinction between combatants and non-combatants, rather than on factors such as gender, age, profession, or social status alone. According to al-Sarakhsī, women, children, the elderly, religious leaders, laborers, farmers, the sick, the wounded, persons with disabilities, and the mentally incapacitated are entitled to protection during war so long as they do not directly or functionally participate in hostilities. The article demonstrates that once such protected persons engage in actual fighting, incitement, strategic counsel, or other forms of effective participation in warfare, they lose their protected status. This criterion closely corresponds to the modern IHL concept of direct or functional participation in hostilities. Furthermore, al-Sarakhsī’s discussions on hors de combat persons—such as the wounded, severely ill, and incapacitated—reflect a strong emphasis on humanitarian considerations, restraint, and the prevention of unnecessary violence. By comparing these classical Islamic legal principles with the Geneva Conventions and their Additional Protocols, the study finds a remarkable convergence between Islamic jurisprudence and contemporary international norms regarding the protection of civilians and other non-combatants. The article concludes that al-Sarakhsī’s legal thought offers a coherent, principled, and ethically grounded framework for regulating conduct during war, which remains relevant and compatible with modern International Humanitarian Law.