The following is stated in summary in the hadith mentioned in the question: “Women and children die during the raids at night against the polytheists. What is the decree about it?” The Prophet (pbuh) said, “They are from the polytheists too.” (see Bukhari, Jihad, 146; Muslim, Jihad, 26/h. no: 1745)
According to Imam Nawawi and Ibn Hajar, “women and children being killed deliberately” is not mentioned in this hadith; “the arrows, spears, etc. thrown at the men of the polytheists hitting women and children by mistake” or “the cases when it is impossible to reach the men without touching them” is mentioned in the hadith. (see Nawawi, Ibn Hajar, the explanation of the relevant hadith)
However, the Prophet (pbuh) absolutely prohibited killing women and children afterwards. (Ibn Hajar, ibid; Bukhari, Jihad, 147,148; Muslim, Jihad, 24,25/h. No: 1744; Abu Dawud, Jihad, 121; Tirmidhi, Sayr,9; Ibn Majah, Jihad, 30; Darimi, Sayr,25; Ahmed b. Hanbal, 2/122,123 ) It is not permissible to kill the women and children who do not take part in the war based on these hadith with the unanimous agreement of four madhhabs. (see W. Zuhayli, al-Fiqhul-Islami, 6/421-423)
According to Imam Malik and Awzai, women and children cannot be killed even if they are used as shields by the enemy. (Ibn Hajar, Fathul-Bari, 6/147)
Samura Ibn Jundab narrates: ''The Messenger of Allah (pbuh) said, 'Kill the old polytheists but do not kill the children.''' (Abu Dawud, Jihad 121, (2670); Tirmidhi, Siyar 28, (1583)
The word “shuyukh (old)” used in hadiths like this is used in the sense of strong and resolute men rather than old men. (see Awnul-Mabud, Tuhfatul-Ahwazi, the explanation of the relevant hadith)
As a matter of fact, it is forbidden to kill very old men. According to what Hz. Anas narrates, the Messenger of Allah (pbuh) addressed the soldiers who were going to war as follows:
“Go in Allah's name, trusting in Allah, and adhering to the religion of the Messenger of Allah. Do not kill a decrepit old man, or a young infant, or a child, or a woman; do not be dishonest about booty, but collect your spoils, do right and act well, for Allah loves those who do well.”(Abu Dawud, Jihad, 90; Naylu’l-Awtar,7/246)
- First of all, we should say that even the Byzantine historians who lived during the conquest did not claim such things. For, Sultan Mehmed the Conqueror conquered Istanbul and other places within the framework of the decrees of Islamic law.
According to the Islamic law,even in the state of actual war, it is forbidden for the Islamic army to do certain things to the enemy and their goods. One of the most important reasons that enabled our ancestors to win victory after victory was their observing those principles. Besides, those victories were directly proportional to observing those principles.
According to Islam, war is not a bloody game in which the army can plunder what it wishes freely and can attack any place it wishes. In Islam, war means to prevent a nation or a group from oppressing and wronging other people.
Therefore, personal interests, racism, material interests, and inhumane feelings like revenge and exploitation are not effective in war. Animals, trees, agricultural fields, civilian and religious places belonging to the enemy are not harmed during the war unless it is necessary.
Hz. Prophet (pbuh) showed with his practices that it was possible to make war without destroying religious and cultural things and demolishing inhabited places, that is, without setting things on fire.
The aim of war in Islam is not to obtain booty and to plunder. The Muslims are warned in a verse not to wrong the enemy who wronged and oppressed them and who prevented them from going to Masjid al-Haram and not to depart from justice, oppressing them in retaliation. (al-Maida, 5/2, 8)
Hz. Prophet prohibited Muslim soldiers from transgressing during war and especially after peace and wanted them to be careful about the security of the elderly, children and women. (Abu Dawud, Jihad, 82)
Therefore, it is not appropriate to transgress while preventing the enemy from transgression in war. As a matter of fact, after a peace treaty was signed as a result of the Battle of Khaybar, some Muslim soldiers transgressed and started plundering. The chief of Jews came to the Prophet and complained about them by saying, "O Muhammad! Is it proper for you to slaughter our donkeys, to eat our fruit, and beat our women?” Thereupon, the Prophet ordered the soldiers to gather and said to them, "Allah has not permitted you to enter the houses of the people of the Book without permission, or beat their women, or eat their fruits when they give you what is imposed on them." (Abu Dawud, Imarah 33) Thus, he warned them that what they did was not appropriate.
When the Prophet (pbuh) heard during a military expedition that one of the soldiers grabbed a lamb and was about to eat it, he overturned the plate and said,
"Plunder is no less haram than carrion." (Abu Dawud, Jihad 128)
Thus, he showed his reaction.
A black slave of a Khaybar Jew was working as a shepherd; he became a Muslim and came to the Prophet. He asked the Prophet what he should do about the sheep that he was herding and that belonged to his master. The Prophet ordered him to drive the herd of sheep to the castle where his master was and leave them. He did so and the herd entered the castle. (Ibn Hisham, Sirah, 3/344–345) Hz. Prophet did not think of confiscating or harming the herd.
There are other hadiths stating that Hz. Prophet prohibited plundering and grabbing things by force. (see Bukhari, Mazalim 30; Abu Dawud, Jihad, 128)
When Hz. Umar was in Jabiya, a dhimmi came to him and said that the Muslims were plundering his vineyard. Hz. Umar investigated the issue and found out that the Muslims took his grapes due to hunger. Thereupon, he ordered the price of the grapes to be paid to the dhimmi.(Abu Ubayd, Amwal, Translated Cemaleddin Saylık, Istanbul 1981, p. 187)
Abu Hurayra advised a person who wanted to make jihad the following: “Do not trample on crops in the field and do not ascend a hill without the permission of your commander. Do not get any grass from the property of dhimmis saying that I am a warrior.” Then, the man met Ibn Abbas, who also told him the same thing. (Abu Ubayd, Kitabul-Amwal, p. 186)
In that case, war is not a bloody game in which the army can kill any people it wishes freely, plunder anything it wishes freely and attack any people it wishes. After conquering a region, the warriors cannot plunder and grab the wealth of anybody. They cannot do anything they regard appropriate in order to eliminate the enemy. A soldier does not have the right to pick fruits from a tree that is in the land of the enemy without the permission of his commander. (1)
Sultan Mehmed the Conqueror, who acted in accordance with these decrees of Islam, never plundered anything. As a matter of fact, the prohibitions written in the book of Mulla Khusraw, who was the judge of the army, show this clearly:
“It is forbidden to kill with oppression and torture, to kill women, children, slaves that came to war to serve their masters, disabled people, ill people, and clerics who retired into seclusion. However, if any of them takes part in the war with their body, idea and wealth, they can be killed. It is forbidden to cut off the rogans of people and animals. It is also forbidden to act contrarily to the promises that were made or to the treaties. It is forbidden to burn crops, forests and trees unless it is necessary for the war. Fornication and illegitimate intercourses are forbidden. Hostages cannot be killed; the heads and other organs of the dead people cannot be cut off. Massacre is forbidden. Close relatives, especially fathers, the shopkeepers and merchants that have nothing to do with war cannot be killed…”
To accuse a statesman who accepted and applied those decrees as official decrees of burning and demolishing Istanbul and the things in it is only a bad example of talking without any evidence.
- According to the decrees of Islamic law of states, the temples belonging to the People of the Book in the countries that are conquered through peace are not touched. Just the opposite is valid in the countries that are conquered through war. That is, if the Islamic sultan wants, he can eliminate all of the temples and deport all non-Muslims.
Istanbul was conquered through war. This decree is the reason why St Sophia and some other churches were transformed into mosques. If that decree had been applied throughout Istanbul, all of the churches and synagogues in Istanbul would have been demolished.
Sultan Mehmed II (the Conqueror), who conquered Istanbul with the help of Allah and the strength of his sword, accepted a committee consisting of priests and rabbis into his presence after transforming St Sophia into a mosque. The committee of priests and rabbis told Mehmed the Conqueror that he conquered Istanbul through war and that it was his right originating from the law of states not to leave any churches and synagogues in Istanbul if he wished. However, they asked him to treat them and their temples as if Istanbul had been conquered by peace and wanted their late entrance into his presence to be accepted as a means of this request.
Consulting the religious scholars around him, Sultan Mehmed the Conqueror accepted their requests and though he had the right, he did not intervene in the churches and synagogues that had not been transformed into mosques. A fatwa issued by the famous sheikhulislam Ebussuud Efendi of the Ottoman state shows that the real secret of the existence of the churches and synagogues that have survived up to now is Mehmed the Conqueror’s understanding of the freedom of religion and conscience. The fatwa is as follows:
- Did Sultan Muhammed II conquer Istanbul and the towns around it by force?
The answer: It is known that he conquered Istanbul by force. However, old churches indicate conquest through peace. This issue was searched in 945. A person aged 130 years old and another person aged 110 years old were found; they witnessed that the group of Jews and Christians formed an alliance with Sultan Mehmed II secretly that they would not help the Byzantine rulers and that Sultan Mehmed II would not enslave them, and that Istanbul was conquered like that. Due to this witnessing, the old churches remained as they were. Written by Ebussuud.”
This fact is also confirmed by the information given by historians. Sultan Mehmed the Conqueror sent İsfendiyar oğlu Damad Kasım Bey as an envoy to Byzantine on May 23 and sent with him the following message:
The city will fall in the first general attack. The Empire, who is a real soldier, must accept this fact. If they surrender through peace, their lives and wealth will not be harmed; if it is conquered by war, blood will be shed and no responsibility will be accepted by Mehmed the Conqueror. Unfortunately, the Empire did not accept peace despite this message and Istanbul was conquered by force. However, Mehmed treated them as it is mentioned above. That Mehmed the Conqueror did not destroy all mosaics in St Sophia and that he did not burn the walls around Istanbul show his attitude regarding the issue.
As it is seen, the promise of Sultan Mehmed the Conqueror “to permit the construction of a church near each mosque” practiced in Serbia was also applied in Istanbul. Does the existence of the Byzantine Patriarchate and the church next to the mosque in Abdi Subaşı District, Fener not show the freedom of religion and conscience in the real sense? Is it not one of the material evidences of this freedom to permit the construction of a Byzantine church opposite Mihrimah Sultan Mosque in Edirnekapı?
The claim that Istanbul was destroyed is not true. Instead of answering it in detail, we will quote a sentence from the determination made by CNN, Time and similar media companies mentioning the conquest of Istanbul among the most important hundred incidents of the last millennium:
"Before Istanbul was conquered by Mehmed the Conqueror, it was a dead city of ruins. After the conquest, it became the trade center of both Europe and Muslim countries and a prosperous world city. As a matter of fact, even the Russian historian Ouspensky said, 'In 1453, Turks treated people much more humanely and tolerantly than the Crusaders in 1204.'" (2)
What are rules of war According to Islamic law?
Muslim warriors are brought under certain legal and moral conditions even in the war environment, where the psychological tension is predominant since belief, worship, law and moral rules in Islam are regarded as a whole in terms of source and target. The verses that command not to exceed the limits, the statements of the Prophet (pbuh) that list the acts that are free and forbidden during the war and the practices of the Companions form the basic foundations of this approach.
If the attitude of Muslims is excepted, it is seen that wars have been brutally made without limitations in the personal initiatives of the commanders and the soldiers for a long time. Hugo Grotius, known as the founder of the Law of States in the West, said in the preface to his book published in 1625 that he had to write such a work because Christian nations applied crazy methods that would embarrass even the barbarians during wars and because they trampled on all kinds of laws, whether divine or human. (On the Law of War and Peace Law, p. 11)
The imposition of decrees that aim to prevent torture and transgression contrary to human dignity in wars, to prevent killing of those who did not participate in the war and to limit the destruction of war could be accepted only in 1864 Geneva and 1907 Hague conventions, which was very late compared to the Islamic world. However, the decrees of these conventions and those of the later international agreements were not applied sufficiently because the strong states regarded their interests to be superior to law and because the warriors did not have moral virtues at a sufficient level as they were deprived of material and spiritual sanctions.
The basic rules adopted in Islamic law in this framework can be listed as follows:
1. There are some exceptions required by the state of war, but in general, what is regarded as halal and haram for Muslims in Muslim countries are also regarded as halal and haram in the country of the enemy where the war is carried out. (Shafii, al-Umm, 7/322)
2. The main target of the war is to render things and people harmless, not to eliminate; therefore, the use of weapons with limited destructive properties is essential. However, it is understood from a verse (al-Anfal 8/60) it is necessary to keep up-to-date with the current battle technology and possess the weapons of the current day in order to be deterrent. This verse demands armament in order to deter the enemy who nurtures bad intentions, not in order to use the weapons unnecessarily and unjustly; therefore, Muslims are obliged to try not to be the first to use the weapons of mass destruction even if they possess them.
Although the legitimacy of using chemical, nuclear and biological weapons has been discussed by contemporary lawyers and international treaties have been signed concerning the use of such weapons, they are constantly being violated by the great western states.(Documents on The Laws of War, s. 29, 35, 137, 377; Yaman, İslâm Devletler Hukukunda Savaş, p. 117-120)
3. It is legitimate to resort to war tricks for military purposes or to deceive the enemy. The statement of the Prophet “War is deception” (Bukhari, Jihad, 157, Muslim, Jihad, 18) shows that it is necessary to be alert in battle, to be cautious and to be able to benefit from tricks that will astonish the enemy. Islamic scholars agree unanimously that it is possible to resort to any possible tricks provided that the treaty with the enemy is not breached and the security that is given is not violated. This issue is acknowledged in Article 24 of the Hague Regulation. (Meray, II, 456)
4. It is forbidden to kill people who did not take part in the war personally or indirectly like women, children, people with disabilities, people with disabilities, ill people, elderly people, clerics who retired into seclusion, and farmers, workers and businessmen who deal with their own business. The advice of the Messenger of Allah to reduce deaths to a minimum during the wars (Sarakhsi, Sharhus-Siyaril-Kabir, I, 78-79), and his statement “The most forgiving people regarding killing are Muslims” (Musnad, 1/393) show that the view ‘everybody except women and children can be killed’ (Mawardi, p. 50) is disputable.
5. It is forbidden to burn the enemy soldiers or to destroy their dead bodies. (Bukhari, Jihad, 149; Muslim, Jihad, 3)
6. It is forbidden to rape the women of the enemy and to have illegitimate sexual intercourse with them; it necessitates haddpunishment according to some madhhabs.
7. Even if the enemy kills Muslim hostages, it is forbidden to kill enemy hostages according to the principle of the individuality of crime. (Abu Ya'la al-Farra, p. 48, Sarakhsi, al-Mabsut, 10/169)
8. It is strictly forbidden to plunder due to the following warnings of the Messenger of Allah: "He who plunders is not from us" (Abu Dawud, Hudud, 14) and "Plunder is haram just like eating carrion." (Abu Dawud, Jihad, 128)
9. According to the majority of the scholars, it is not appropriate to destroy plants and other living things except for meeting the need for nourishment, destroying the enemy's power of fighting, or due to a military operation. (al-Hashr 59/5, Sahnun, 2/8, Sarakhsi, Sharhus-Siyaril-Kabir, 1 / 52-55)
10. It is permissible to destroy, burning and flood the strategic places, castles, fortified places, etc. as a necessity of war.(al-Hashr, 59/2) Similarly, it is permissible to prevent the enemy from using water as seen in the examples of the Battle of Badr and Khaybar.
11. If the enemy uses his own women and children or the Muslim prisoners as shields, all scholars agree that the war should be continued at low intensity lest they should be killed. However, it is disputable what the degree of low density is. Some scholars say it is permissible to shoot those targets so the that the enemy will not use it as a method but the majority states that this way can be used as an obligation only if the Muslims risk being defeated when they do not continue fighting or risk incurring bigger loss.
12. It is accepted by the majority of fiqh scholars that every non-Muslim, regardless of gender and age, can be taken as a prisoner during the war or after the war if he has not signed a contract of dhimmah. (al-Anfal, 8/67-69; Muhammad, 47/4) However, it is forbidden to treat prisoners of war badly and it is necessary to care for their places to live and nourishment, to avoid separating them from their family members and to care for the honor of especially female prisoners.
The war ends with one of the following ways: If the enemy accepts Islam or surrenders, if the place is conquered, if a temporary or permanent peace treaty is signed, if a ceasefire agreement is signed, if Muslims are defeated of if they stop the war.
Islamic jurists determined detailed degrees related to each of these cases and tried not to give decrees contrary to law. (se TDV İslam Ansiklopedisi, Savaş, Sulh, Cihad items.)
1) see Yunus Macit, Savaş Kuralları Açısından Hz. Peygamber’in Sünnetinde Doğal ve Fizikî Yapının Masuniyeti, Dinbilimleri Akademik Araştırma Dergisi V (2005), Issue: 4.
2) Mulla Khusraw, Dhurar and Ghurar, 1/282 ff.; Mawqufati, Multaqa Translation, 1/343; Damad, Majma'ul-Anhur Sharhu Multaqal-Abhur, 1/643 ff.; Ebussuud, Ma'ruzat, Ist. Univ. Library. nd. nr. 1798, vrk. 130/a-b; Ibn Kemal, Tevârih-i Âli Osman, VII. Defter, p. 62 ff.; Baştav, Şerif, "XIV. Asırda yazılmış Grekçe Anonim Osmanlı tarihine göre İstanbul'un muhasarası ve zabtı", p. 51-82; Cin-Akgündüz, Türk Hukuk Tarihi, Vol. I, p. 448 ff.; Ali, Kunhul-Akhbar, Vol. V, 251-260; Solakzâde, 191-201; Âşıkpaşa-zâde, p. 141-143; Clot, Fatih, 60 ff.; For the opposite view, see Aydın, Erdoğan, Fâtih ve Fetih, Mitler ve Gerçekler, 66-67, 94-95, 127-128.
(see Ahmet AKGÜNDÜZ, Bilinmeyen Osmanlı, İstanbul 2000, p. 106-109)