Sensual_Healing Posted September 22, 2004 Under the supervision of Shaykh Salman bin Fahd al-Oadah Islamic Law and Prisoners of War http://www.islamtoday.net/english/d...?content_id=522 Allah has set down laws dealing with prisoners of war. He says in the Qur'ân: "If you meet in battle those who disbelieve, smite their necks. Then, if you have thoroughly subdued them, bind them firmly, so there will be a time for either generosity or ransom for them until cessation of the war." [sûrah Muhammad: 4] Just and legitimate warfare is a necessity in order to resist aggression and oppression, to defend against enemies, and to overcome those who repress the truth and forcibly keep people from it. War captives follow as a necessary consequence of war. This is why Allah says: "If you meet in battle those who disbelieve, smite their necks." This is quite sensible, since no one would expect anyone to say: "If you meet in battle those who disbelieve, shower them with roses and aromatic herbs." The situation at hand is one of severity and hostility. War is a part of life. If a war is just, not for the purpose of brute conquest and imperial expansion, nor for aggression and hatred, then such a war has a positive role to play in preserving civilization and removing from it the blights that seek to bring it down. In the Qur'ân, there are two verses that discuss prisoners of war: The first is: "It is not for a prophet to have prisoners of war until he has thoroughly subdued the land." [sûrah al-Anfâl: 67] This verse was revealed after the battle of Badr when the Muslims had captured a number of the enemy. The second verse we have already mentioned: "If you meet in battle those who disbelieve, smite their necks. Then, if you have thoroughly subdued them, the bind them firmly, so there will be a time for either generosity or ransom for them until cessation of the war." [sûrah Muhammad: 4] Scholars differ whether this second verse abrogates the ruling of the first. The strongest view is that it does not, since both convey essentially the same meaning. In the first verse, Allah says that there should be no prisoners of war until the Muslims have "thoroughly subdued the land." The second verse states that when they have "thoroughly subdued" the enemy so that they are full of fear and dread, then it is permissible to take prisoners. All this means is that prisoners of war should not be taken before or while subduing the land. There is no categorical prohibition in either of these verses to taking prisoners of war. The enemy must be subdued in order to break their strength and resolve. After that, prisoners can be taken. The wisdom behind this is obvious. Putting an end to enemy aggression is the primary goal of war. This is why Sheikh Rashîd Ridâ says in his commentary of the Qur'ân entitled Tafsîr al-Manâr: "The gist of these verses is that it is not the tradition of the prophets nor of those who follow them to have prisoners of war whom he ransoms or releases except after gaining some ascendancy over the enemies of Allah." The Rights of Prisoners of War in Islam 1. A prisoner of war has the right to remain on his religion and cannot be compelled to give it up. Today this principle is referred to as freedom of religion. He should merely be called to Islam without any pressure being placed upon him. Allah says: "O Prophet! Say to those who are captives in your hands: 'If Allah finds any good in your hearts, He will give you something better than what has been taken from you and He will forgive you. For Allah is Oft Forgiving, Most Merciful." [sûrah al-Anfâl: 70] We can see in this verse how prisoners of war are to be endeared to Islam and how they should be invited to accept the faith. The verse opens to them the doors of repentance. It entices them with a promise of rewards far greater than the ransom that they have had to spend on themselves. It promises them that if they embrace Islam willingly, Allah will bless them from His bounty in this world and the next and grant them forgiveness for all the wrong they had committed in the past. This verse is clear proof that they are not to be compelled to accept Islam. The Prophet (peace be upon him) and those who followed him never once forced a prisoner of war to embrace Islam. This can clearly be seen in the story of Thamâmah b. Athâl al-Hanafi, an idolater who was captured by the Muslim army in battle and then brought to the mosque where he was restrained. The Prophet approached him respectfully and said: "What have you, O Thamâmah?" Thamâmah replied: "Actually I have a lot going for me. If you kill me, you kill a man whose blood will surely be avenged. If you are generous, then you are generous to a man who knows how to be grateful. If you are after money, then ask of me whatever amount you like." The Prophet (peace be upon him) left him at this point. On the second day when he approached him, Thamâmah said basically the same thing. On the third day, the Prophet (peace be upon him) said: "Let Thamâmah go." [Al-Bukhârî (4372) and Muslim (1764)] They unbound him and let him go. He went on his way, quickly took a bath, and returned, declaring: "I bear witness that there is no God but Allah and I bear witness that you are the Messenger of Allah. O Muhammad! I swear to Allah that there was no man on the face of the Earth who I hated more than you. Now you have become to me the dearest of men. And I swear by Allah that there was no religion on Earth more loathsome to me than your religion, but now it is the most beloved to me of all religions. There was no country on Earth more despised by me than your country, yet now I love it more than any other country in the world." This is the effect that kindness and good conduct can have. Look at the effect it had on this man who was far from being a simpleton. He was a man of distinction, the leader of his people. Moreover, his acceptance of Islam was not an act of deception, nor did it take place under any pressure or compulsion. 2. He has the right to nourishment, enough to maintain his health. Allah says in the Qur'ân: "And they feed from what they love for themselves the indigent, the orphan, and the prisoner of war, saying: 'We feed you for the sake of Allah. No reward do we desire from you nor thanks." [sûrah al-Insân: 8-9] Allah has made taking care of enemy prisoners of war an act of worship that can bring the believer closer to Allah. When Allah says: "from what they love for themselves", He is showing us that it is not sufficient just to give them our surplus food, but to prefer them over ourselves and give them the best, even if we have a need for it ourselves. Conversely, denying nourishment to the prisoners of war is counted as a major sin in Islam. The Prophet (peace be upon him) alluded to this when he said: "A woman was punished on account of a cat. She kept it in confinement until it died, and on account of it entered the Fire. She confined it without feeding it or giving it anything to drink. She did not let it out to eat on its own." [Al-Bukhârî (3482) and Muslim (2242)] Since a prisoner is unable to provide for himself, it is incumbent upon his captor to provide for him. If the punishment for abusing a cat is so great, then imagine what the punishment must be when a human being is concerned. Allah has vested the human being with a special honor. He says: "We have honored the children of Adam." [sûrah al-Isrâ': 70] It is enough for us that Allah has placed the needs of enemy prisoners of war on the same level as the needs of the poor and the orphans when He says: "…the indigent, the orphan, and the prisoner of war…", encouraging us to spend on them and treat them kindly. Such good conduct can be the cause of their being guided, as was the case with Thamâmah. 3. He has a right to be clothed in dignity in a manner that is appropriate to his social status. Jâbir relates: "After the Battle of Badr, prisoners of war were brought. Among them was al-`Abbâs. He did not have a shirt on, so the Prophet (peace be upon him) looked for a shirt for him. It turned out that a shirt of `Abd Allah b. `Ubayy was the right size, so the Prophet gave it to al-`Abbâs to wear and compensated `Abdullah with his own shirt." [Al-Bukhârî (3008)] From this, we can see how Islam guarantees prisoners of war the right to decent clothes. 4. He has a right to decent lodgings, whether they are in a prison cell, a mosque, or even a private home. During the time of the Prophet (peace be upon him) there were no formal prisons. Sometimes a prisoner would be kept in the mosque, and sometimes they would be distributed among the believers to be kept in their homes. Once the Prophet (peace be upon him) brought a prisoner of war to his own home and left that prisoner under the supervision of `Â'ishah. There were women with her who distracted her attention and the prisoner got up and left. When the Prophet (peace be upon him) returned home and asked her where the prisoner was, she replied that the women who were with her kept her distracted. The Prophet (peace be upon him) said to her: "May Allah smite your hand!" and left to dispatch someone to pursue the prisoner. When the prisoner was apprehended, the Prophet (peace be upon him) returned home with him and saw `Â'ishah sitting with her hands out. He asked her why she was doing that, and she said: "You invoked Allah to smite my hands, so I am waiting for it to happen." The Prophet said: "Have you gone mad?" Then he raised his hand and prayed to Allah, saying: "Turn my invocation against this one into a form of expiation for her and a purification." [sunan al-Bayhaqî: 9/89; al-Dhahabî declared its chain of transmission to be good.] Ibn Kathir, in his historical work al-Bidâyah wa al-Nihâyah, mentions that the Prophet (peace be upon him) distributed the prisoners from the Battle of Badr between his Companions (5/191). The Prophet (peace be upon him) would free the prisoners of war who knew how to read and write in exchange for their teaching the children of Madinah how to do so. Such a prisoner would obviously have to be free to move about and not tied up. The only reason for restraining a prisoner is to keep him from running away. If preventing him from fleeing can be achieved without tying him up, then there is no need to bind him. 5. When families are taken together as prisoners of war, they have a right not to be separated. A mother should not be separated from her child, nor should that child be separated from its father. Brothers should not be separated either. The Prophet (peace be upon him) said regarding captives: "Whoever separates a mother from her child will be separated from his own loved ones on the Day of Judgment." [Ahmad (23499), al-Tirmidhî (1283), Ibn Mâjah (2250) and Abû Dâwûd (2696). Al-Tirmidhî declares it good but unusual.] For this reason, the Companions and the people of knowledge who came after them loathed separating parents from children among the war captives. Al-Dârimî relates that Abû Ayyûb al-Ansârî was in an army and inadvertently separated a mother from her two children. When he saw them crying, he quickly returned them to their mother, declaring: "The Prophet (peace be upon him) said: 'Whoever separates a mother from her child will be separated from his own loved ones on the Day of Judgment.'" Look at how much mercy, compassion, and justice was employed by the Muslims during war in keeping family members together whom they taken captive. 6. Prisoners of war have a right not to be subjected to any abuse or torture. They cannot be abused on account of the fact that they were fighting against us. Islamic Law does not command us to punish them for this reason. Prisoners of war were never subjected to punishments by the Muslims during the early generations of Muslims when Islam was strong and put into practice. This follows logically from the fact that Muslims are commanded to treat prisoners of war kindly and hospitably. They must feed them, clothe them, and keep their family members together. Abuse is diametrically opposed to what is demanded of us. An exception is made where it is known that a prisoner is hiding something. Then it is permissible to punish him in a restrained matter to extract information from him. Such punishment, however, should never reach the level of outright torture and must not have any affect on his health. The Prophet (peace be upon him) fought against the people of Khaybar until they were forced to retreat to their castle. The Muslims had total control of their land and their farms, and their plantations. The Muslims arrived at a settlement with the people of Khaybar that they would be allowed to depart from their land taking with them whatever they could carry but leaving behind all their gold and silver for Allah's Messenger (peace be upon him). A condition was placed upon them that they could not hide anything or try to smuggle out any gold or silver. If they did so, then their covenant would be broken. They concealed a purse containing wealth and jewelry belonging to Hayy b. Akhtab which he had brought to Khaybar when the tribe of al-Nadîr was driven out. The Prophet (peace be upon him) asked Hayy's uncle what happened to Hayy's purse that he brought with him from al-Nadîr. His uncle replied that all the wealth was used up in personal expenses and the war effort. The Prophet (peace be upon him) said: "The time was too short and the money was much more than that." The Prophet then handed him over to al-Zubayr who began to inflict punishment upon him in a non-serious manner until he said: "I saw Hayy going about in the ruins." They searched through the ruins and found the purse. [sunan al-Bayhaqî (9/137). Ibn Hajar, in Fath al-Bârî, says that its narrators are reliable.] The only prisoners of war who were ever executed by the Prophet (peace be upon him) were people who already had a sentence of death passed upon them for crimes they had previously committed against the Muslims. When the great jurist, Mâlik, was asked whether it was permissible to torture a prisoner of war to extract from him information about the enemy's weaknesses, he said that he had never heard of such a thing. Many of the scholars of the past loathed the idea of killing prisoners of war. Throughout all of the wars and battles that the Prophet (peace be upon him) waged, he killed very few prisoners of war. These were all among the worst criminals among the enemy who had previously engaged in atrocities against the Muslims. Many of them would today be called war criminals. When word of the advance of Abû Sufyân's forces reached Allah's Messenger (peace be upon him), his Companions captured a slave belonging to the enemy. They asked him the whereabouts of Abû Sufyân and his forces. The slave replied: "I know nothing about Abu Sufyân, but Abu Jahl, `Utbah, Shayibah, and Umayyah b. Khalaf are there." When he said this, they beat him until he said: " I will tell you about Abu Sufyan." However, when they stopped beating him, he again said: " I know nothing about Abu Sufyân, but Abu Jahl, `Utbah, Shayibah, and Umayyah b. Khalaf are there." When he said this, they beat to beat him again. The Messenger of Allah (may peace be upon him) had been praying. When he saw what they were doing, he stopped praying and said: "I swear by Allah in whose hand is my soul! You beat him when he tells you the truth and let him go when he lies to you!" This is clear proof that it is wrong to aggress against prisoners of war. They should not be punished except for crimes that they commit. In consideration of the rights that we have mentioned, it follows that they should have appropriate medical care and have all their needs taken care of that falls under the idea of good treatment. None of them should ever be treated unjustly with respect to his person, his family, or his wealth. Some Islamic Injunctions Concerning Prisoners of War 1. It is permissible for a Muslim if he is unable to repel the enemy during a war to allow himself to be taken prisoner. We have the story of Khubayb b. `Adî and his comrades. They surrendered to the unbelievers who then took them and sold them as slaves in Mecca. Khubayb was bought by the sons of a man he had killed during the Battle of Badr and they resolved to crucify him. Before he was executed, he recited these very famous lines of poetry: What should I worry when I die a Muslim, As to the manner in which I'm to die. I go to my death for the sake of my Maker, Who at His wish can bless limbs torn awry. 2. Paying the ransom to free Muslim prisoners of war is a preferred act of worship. The Prophet (peace be upon him) said: "Ransom the war prisoners, feed the hungry, and visit the sick." [Al-Bukhârî (3406)] Abû Juhayfah asked `Ali about any revelation that he knew about from the Prophet (peace be upon him) that was not to be found in Allah's Book. Alî replied: "By He who splits the seeds in the Earth and creates life, I know nothing of the sort except the understanding that Allah gives one who knows the Qur'ân and what is written in this document." Abû Juhfah asked him what was written therein, and he said: "It contains the blood money that must be paid for killing someone, the order to pay ransom to free prisoners of war, and that a Muslim must not be killed on account of an unbeliever." [Al-Bukhârî (3047) and Muslim (1370)] Securing the freedom of prisoners of war is an act of worship that Muslims should hasten to fulfill if they are able to. They should expend every effort and use all means at their disposal to secure the freedom of these prisoners or at least get their conditions to improve. They should use all modern means of communication, negotiation, and applying pressure that they can muster to achieve this goal. 3. Al-Zuhrî said: "As long as the whereabouts of a prisoner of war is known, then his wife cannot get remarried and his inheritors cannot divide up his wealth. If, however, no one knows anything about his situation, then the waiting period is the same as for any individual who has disappeared." [Mentioned with a partial chain of narrators in Sahîh al-Bukhârî] 4. Al-Bukhârî mentions that the judge Shurayh used to allot to prisoners of war in enemy captivity their share of inheritance, saying: "He needs the money more than anyone else." The Caliph `Umar b. `Abd al-`Azîz used to say: "I permit the giving of bequests to prisoners of war and to securing their emancipation. As long as he does not become an apostate, then he still has the right to dispose of his wealth as he sees fit." 5. With respect to the proclaimed conversion of an unbelieving prisoner of war, `Imrân b. Husayn relates the following: The tribe of Thaqîf was allied to tribe of `Uqayl. Two Muslims were captured and imprisoned by Thaqîf. The Muslims, in turn, took a member of the tribe of `Uqayl as a prisoner. They also captured al-`Udbâ', a she-camel The Prophet (peace be upon him) went to see the prisoner who was tied and bound. The prisoner said: "O Muhammad!" The Prophet (peace be upon him) said: "What is the matter?" The prisoner replied: "Why did you take me captive along with this camel?" The Prophet (peace be upon him) answered: "I took you captive in response to what your ally Thaqîf did." The Prophet (peace be upon him) then turned to leave. The man said: "Muhammad! Muhammad!" The Prophet (peace be upon him) was very merciful and soft-hearted, so he went back to him and said: "What is the matter?" He said: "I am a Muslim." The Prophet (peace be upon him) replied: "If you had said that when you were in control of your own affairs, you would have found every possible success." He then turned to leave again. The Prophet (peace be upon him) then ransomed him for the two Muslims who had been taken prisoner but retained the camel. [Muslim (1641)] There is evidence that the conversion of a non-Muslim prisoner of war is to be accepted. We have the story of Usâmah b. Zayd who killed a man in battle after that man had cried out: "There is no God but Allah and Muhammad is the Messenger of Allah." The Prophet (peace be upon him) admonished him, saying: "You killed him after he said 'There is no God but Allah'? What are you going to do on the Day of Resurrection with this man who said 'There is no God but Allah'?" [al-Bukhârî (4269) and Muslim (96)] If an unbelieving prisoner of war accepts Islam, he acquires inviolable rights. The Prophet (peace be upon him) said this about what happens when an enemy who you are at war with embraces Islam: "I have been commanded to fight them until they say 'There is no God but Allah'. If they do so, then their blood and wealth become forbidden for me." [al-Bukhârî (25) and Muslim (21)] 6. A prisoner of war is a prisoner of the state. He is never a prisoner of the person who had taken him captive. Therefore, it is the political leadership who must determine what to do with the prisoner. This leadership may choose to free the prisoner, like the Prophet (peace be upon him) did with Thamâmah b. Athâl, as well as with 80 men captured during the Battle of Hudaybiyah. They had come with the express purpose of killing the Prophet (peace be upon him) but were captured and then pardoned by the Prophet (peace be upon him). They may decide to charge a ransom for the prisoner's release. The Prophet (peace be upon him) did this with the prisoners captured during a number of battles, including the Battle of Badr. They may also exchange their prisoners for Muslim prisoners of war captured by the enemy, like the Prophet (peace be upon him) did with the man from `Uqayl. The Prophet (peace be upon him) once sent a female prisoner to Mecca in exchange for a number of Muslims whom the Meccans had captured. [Muslim (1755), Ahmad (16502), al-Nasâ'î (8665), and Ibn Mâjah (2846)] 7. The Prophet (peace be upon him) killed a few people after their capture who posed a danger to the Muslims and who had been responsible for heinous deeds. One of these was Ibn Khatl who was killed during the conquest of Mecca. [al-Bukhârî (1846) and Muslim (1357)] The question then arises: Is it permissible for the Muslim government to kill prisoners of war? This is a matter of disagreement in Islamic Law. What is certain, however, is that a prisoner of war cannot be killed for nothing. The prisoner must be guilty of crimes that warrant the death penalty. The two great jurists, al-Hasan and `Atâ', who were among the pious predecessors, loathed the killing of war prisoners. The same can be said for Ibn `Umar. The governor of Iraq, al-Hajjâj, brought a prisoner in irons to Ibn `Umar nad ordered him to come up and kill him. Ibn `Umar refused, saying: "This is not the way we do things. Allah says: 'either generosity or ransom' and He does not say anything about killing them." In another instance, a governor ordered Ibn `Umar to have a prisoner of war killed. Ibn `Umar replied: "Since he is now a captive, he cannot be killed." By saying this, he was implying that the time to kill an enemy soldier is on the battlefield, not after you have captured him. Ibn Muflih, the Hanbalî jurist, writes: "The correct position on the matter is that if an enemy soldier is captured, it becomes unlawful to kill him." This is the official position of the Hanbalî School of Law. Al-Hasan b. Muhammad al-Tamîmî claims that this was a point of consensus among the Companions. This shows us one aspect of Islam's greatness. This is how Islam instructs the Muslims to deal with people who are not only unbelievers, but also enemies, and not merely enemies, but those who actually go forward in battle to attack and kill Muslims Quote Share this post Link to post Share on other sites
sahal Posted September 22, 2004 Thanks Sis for this clarification Quote Share this post Link to post Share on other sites
