Ayatollah Abolqasem Alidoust, member of the Board of Trustees of the Research Institute of Contemporary Jurisprudence, analyzed the doubt regarding the effect of the “Rule of Action” (Qa’idat al-Iqdam) on the discharge of liability (daman) as well as civil and criminal liabilities during wartime in a scientific session titled “Liability and Compensation in War,” examining the jurisprudential dimensions of the responsibilities of governments and combatants regarding damages incurred during war.
This professor of advanced jurisprudence (Bahth al-Kharij) and principles of jurisprudence in the Islamic Seminary of Qom, reviewing the jurisprudential views presented in the book Dirasat fi Wilayat al-Faqih, stated: “The subject of the contextual departure (insiraf) of the proofs of liability (daman) and retribution (qisas) under wartime conditions must be examined.”
Ayatollah Alidoust, critiquing the viewpoint holding that the issue of liability and compensation in war is rendered void due to the combatants’ and warring parties’ act of accepting risks (the Rule of Action), emphasized: “Even accepting the precedence of the Rule of Action over liability (daman), this cannot justify discharging the aggressor’s responsibility, and separating the establishment of liability (subut al-daman) from the manner of exacting compensation based on Sharia expediency (maslahah) is essential.”
Referring to the words of the late Ayatollah Montazeri in the book Dirasat fi Wilayat al-Faqih, which considers the proofs of liability and retribution to be contextually departed (munsarif) under conditions of army confronting army (jaish fi muqabil jaish) and system confronting system, he specified: “Proponents of this view believe that since both warring parties entered the battlefield based on the Rule of Action, Sharia liability cannot be conceived regarding either the aggressor or the defender. This argument is even posed regarding the believing combatant who strove in the cause of God with his life and property, asserting that he has received his otherworldly reward.”
Critiquing this viewpoint, he added: “Although the Rule of Action in its proper place eliminates responsibility and takes precedence over liability, this rule by no means eliminates the aggressor’s responsibility toward the defender. In Islamic jurisprudence and international law, the aggressor is liable (damin) for the damages incurred. Furthermore, one must separate jurisprudential discussions from the issue of the Hereafter, because jurisprudence is the science of regulating worldly relations, and introducing otherworldly components into discussions of civil liability confronts the foundation of jurisprudence with challenges.”
The member of the Board of Trustees of the Research Institute of Contemporary Jurisprudence further emphasized that the discussion of establishing liability is a reality-level (subuti) discussion while the discussion of the manner of exacting compensation is an evidentiary (isbati) and executive discussion, stating: “Even if there is no doubt regarding the establishment of liability and responsibility of the aggressor, the decisive element in the manner of collecting compensation is genuine (non-illusory) Sharia expediency (maslahah). At times, the expediency of the Islamic system may lie in insisting on receiving compensation and damages to the extent that it becomes necessary to inflict damage on the enemy so that they are compelled under pressure to pay compensation; at other times, due to macro-strategic reasons, expediency may lie in not pursuing the collection of compensation, a matter falling within the jurisdiction of the Islamic ruler (hakim al-shar’) in consultation with expert advisors.”
Concluding his remarks, Ayatollah Alidoust, referring to similar cases in practical biography (sirah) as well as the state’s responsibility toward citizens in economic policies, stated: “We conclude that the public treasury (Bayt al-Mal) must not be managed in a way that civil liabilities are ignored; rather, through an approach based on assessing the expediency of the Islamic system, the rights of victims in various wartime and non-wartime spheres must be elucidated within jurisprudential frameworks.”