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The Qur’an and the Sunnah
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Rules framed by the Jurists in the Light of the Text
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Rule 1
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Beheading of Prisoners
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Release with Ransom
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Exchange of Prisoners
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Gratis Release
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Enslavement
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Treatment of Enslaved Prisoners
I- The Qur’an and the Sunnah
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In this chapter we
shall study the treatment given by Islam to the prisoners of war
which, by any standard, has been the most humane, most kind and
impressively ideal. But before we highlight the rules and
regulations regarding prisoners of war, it would be most
appropriate if we glance through the relevant verses of al-Qur’an,
the revealed book of Islam, and Ahadith and practice of Muhammad,
the Prophet of Islam.
The Verses of
Holy Qur’an
1. It is not for
any Prophet to have captives until he hath made slaughter in the
land. Ye desire the lure of this world and Allah desireth (for
you) the Hereafter, and Allah is Mighty, Wise. Had it not been for
an ordinance of Allah which had gone before, an awful doom had
come upon you on account of what ye took. Now enjoy what ye have
won as lawful and good, and keep your duty to Allah. Lo! Allah is
Forgiving, Merciful”.
–––(8:67-69)
2.
Now when ye meet in battle those who disbelieve,
then it is smiting of the necks until, when ye have routed them,
then making fast of bonds; and afterward either grace or ransom
till the war lay down its burdens.
–––(47:4)
3.
And feed with food the needy wretch, the orphan and
the prisoner, for love of Him (saying) : We feed you, for the sake
of Allah only. We wish for no reward nor thanks from you……
–––(76:8-9)
In the above
verses, following instructions regarding prisoners of war have
been given :
1.
The enemy should be completely defeated and his
fighting power should be completely crushed before the enemy
soldiers are taken as war prisoners.
Since the above
mentioned principle was not fully acted upon by the followers of
Islam in the Battle of Badr, God has disapproved their action
and reprimanded them. The Battle of Badr was the first major
clash between the forces of Islam and forces of disbelief and in
this battle the Muslims proceeded to take the enemy soldiers as
prisoners before crushing the fighting power of the enemy and
later on decided to release these prisoners against ransom. Had
the Muslims pursued the enemy when it fled and crushed it
completely, they might have been spared future hardships which
the enemy created for them. As it was not done, their action
regarding taking of prisoners and releasing them on ransom,
which was otherwise permitted by verse 4 of chapter 47 of Al-Qur’an,
has been severely condemned being unwanted on the occasion of
first encounter between Islam and Disbelief.
2.
The prisoners should be taken in the actual battle
filed before the hostilities cease and war terminates.
3.
They should be accorded kind and humane treatment.
They should be properly fed. The Qur’an considers it an act of
virtue and goodness to feed prisoners for love of Allah without
wishing any reward or thanks.
4.
Regarding release of the prisoners of war, the
Qur’an prescribes two options, namely : they should be set free
either as a favour and grace, or they should be released for a
ransom. Release of prisoners for ransom includes : that they
should be set free after accepting ransom money; that they should
be set free after taking some service from them or that they can
be exchanged for the Muslim prisoners of war who are in the
possession of the enemy.
Ahadith of
Prophet Muhammad (PBUH)
1. Ibn Omar
reported that the Apostle of Allah sent Khalid-b-Walid to Banu
Jizimah and invited them to Islam but they were not good enough to
say : We accepted Islam. They began to say : We are Sabeans, we
are Sabeans. Then Khalid began to put them to death and make them
captives. He allotted one captive to every one of us till one day
Khalid passed order to put to every captive under us to death. I
said : By Allah, I shall not kill my captive, and none of my
companions will kill his captive till we approach the Prophet and
mention it to him. He raised up his hands and said : O Allah, I am
innocent to Thee of what Khalid did twice.
–––(Bukhari)
2.
Ayesha reported that when the Apostle of Allah took
captives of those who joined at Badr, he killed Oqbah-b-Abi Muait
and Nazr-b-Hares and he showed favour to Abu Garrah al-Juhamiy.
–––(sharhi Sunnat)
3.
Jubair-d-Mut’em reported that the Apostle of Allah
said about the captives of Badar : Had there been Mut’em-b-Adi
alive and then interceded to me for these impure captives, I would
have set them free on his account.
–––(Bukhari)
4.
Anas reported that eighty men from the inhabitants
of Makkah with full arms suddenly fell upon the Prophet from the
hill of Tan’eem intending thereby to attack the Prophet and his
companions unawares. He arrested them suddenly and gave them life,
and in a narration : “He set them free”. Then the Almighty Allah
revealed : And He it is who withheld their hands from you and your
hands from them in the valley of
Makkah (48 : 24)
–––(Muslim)
5.
Merwan and Meswr-b-Makhramah reported that the
Apostle of Allah stood when a deputation of Hawazin waited on him
to accept Islam. They begged him to return their properties and
captives. He said: Choose one of the two measures–either captives
or properties. They said: We prefer our captives. The Messenger of
Allah then got up, praised Allah with what is due to Him and then
he said: As for next, your brethren have come quite repentant, and
indeed I now consider that I should return them their captives. So
whoso of you likes that it would be pleasing, let him do, and
whoso of you likes that he should get his share, till we give it
to him out of what Allah gives us as Fai, let him do so. The
people said: O Messenger of Allah! We are willing to release
(captives). We don’t know who are among you who will give
permission and who will not give permission. So return till your
leaders come to us over your affairs. Then the people returned and
so the leaders talked with them. Afterwards they returned to the
Messenger of Allah. They informed him that they were glad and so
gave permission.
—–(Bukhari)
6.
Imran-b-Hussain reported that Saqif was an
ally to Banu Oqail. Saqif took two persons out of the companions
of the Holy Prophet as captives, and the companions of the Prophet
took captive of a man of Banu Oqail. They tied him firm and threw
him in heat. The Messenger of Allah passed by him, and he called
him: O Muhammad, O Muhammad, for what have I been overtaken? He
said: For faults of your ally Saqif. Then he left him and
departed. He called out to him: O Muhammad, O Muhammad. The
Prophet then took compassion on him and returned. He asked: what
is the matter with you? He said: verily I am a Muslim. He said: if
you tell this and control your own affair, you will attain full
success. He said that the Holy Prophet had ransomed him in
exchange of two men whom Saqif made captives.
–––(Muslim)
7.
Ayesha reported that when the Makkans went for the
ransom of their captives, Zainab sent a property to ransom Abul
A’s. She also sent therein her necklace which was with Khadijah
who gave it to her as dower of marriage with Abul A’s. When the
Holy Prophet saw it, his compassion was greatly moved and he said:
Inform me whether you would set her captive free for her and
return her what belongs to her. ‘Yes’ said they. The Prophet then
asked him to let free the way of Jainab to come to him. The Holy
Prophet sent Zaid-b-Haresah and a man from the Ansars and said:
Stay at the
valley of
Najeh till Zainab passes by you. Then accompany her till you can
bring her back.
–––(Ahmad, Abu Daud)
8.
Ibn Mass’ud reported that when the messenger of
Allah wished to kill Oqbah-b-Abi Muait, the latter said: Who is
for the children? He replied: the fire.
–––(Abu Daud)
From the traditions
reported above and from the battles fought by the Prophet and his
companions which have been recorded in Islamic history, we get the
following information regarding the treatment of the Prophet with
prisoners of war.
1.
Seventy prisoners fell into the hands of the
Muslims in the battle of Badar. The question arose how to treat
these prisoners. The Prophet consulted his companions on this
vital issue. The opinion of Abu Bakr was that the prisoners should
be released on ransom, while Umar suggested that the prisoners
should be put to sword. The Prophet (PBUH) agreed with the views
of Abu Bakr and decided to release the prisoners on receipt of
ransom. Those prisoners who were poor were required to teach ten
Muslim children each and, thus, get their liberty. The rich among
the prisoners were obliged to pay ransom (generally four thousand
Dirhams per head) for securing their freedom. The Prophet’s uncle
Abbas and son-in-law Abu’al A’s had to pay ransom for their
release. Those prisoners who were poor and also illiterate being
unable to pay ransom or teach children were set free without
ransom.
2.
During their detention, the prisoners of Badr were
distributed among the companions by the Prophet (PBUH) as there
were no state prisons in Madinah in those days. Each companion got
one or two prisoners with instructions that they should be treated
kindly and food, clothing and lodging should be provided to them
according to means. The companions of the Prophet treated the
prisoners so kindly that one of the prisoners is reported to have
remarked : “Blessings be on the people of Madinah! They made us
ride while they themselves walked, they gave us bread to eat when
there was little of it contenting themselves with dates”.
Suhail-b-Amr, a prisoner of war, was a good orator who used to
deliver speeches against Islam. Umar suggested that two of his
teeth should be broken, but the suggestion was turned down by the
Prophet who said: “I have not been sent to mutilate men”.
3.
Out of the Seventy prisoners taken at Badr, only
two were put to sword, namely, Oqbah bin Abi Muait and Nazr bin
Hares. They were put to death not for their participation in
Battle of Badr against the Muslims, but for their unparalleled
enmity against Islam and for their oppression, tyranny and
persecution to which they had been subjecting the innocent Muslims
at Makkah.
It is reported
that when Oqbah bin Abi Muait was being put to death for his war
crimes, he cried: who will care for his children? The Prophet
replied: Fire. This reply of the Prophet has been unfortunately
subjected to very harsh criticism by the enemies of Islam
particularly by some of the non-Muslim scholars of modern times
whose enmity against Islam is otherwise an open secret. They
assail the conduct of the Prophet on human and compassionate
grounds. Research, however, reveals that Oqbah belonged to tribe
called Bani-An-Nar (children of fire) and the reply of the
Prophet in fact referred to that fact which would mean that
people of his tribe shall take care of them. Otherwise the man
who has been referred to in the Qur’an as Mercy for both the
worlds, who was a champion and a great protector of the rights
of orphans and widows, and whose love for children was
proverbial, would not give such an inhuman reply.
Even otherwise
the refusal of the Prophet to release Oqbah on the pretext of
“who will look after his children” can be defended on the
principle of justice. If this pretext is to govern the
dispensation of justice, then no criminal on earth who is guilty
of war crimes, robbery, adultery, murder, rebellion, etc. can
ever be punished as in case of his conviction his children may
face hardships.
Only one person,
the poet Abu Azzah from the prisoners of Uhud was beheaded. From
the prisoners taken at Khaiber only Kinanah bin Abi al-Huqaiq
was put to death because of his violating the agreement.
At the conquest of Makkah, the Prophet declared general amnesty,
but in respect of only a few persons (not more than half a
dozen) the orders were issued that wherever they were found they
should be put to death. However, these orders were withdrawn in
respect of more of them and only two or three were put to death
who had committed unforgivable crimes against the Muslims and
Islam.
It would be fair
if we describe here the fate of Jewish tribe of Banu Quraizah as
that has invited very harsh criticism against the Prophet from
hostile quarters. In the fifth year of the Hegira, the Makkans
along with their allies again invaded Madinah with a large army
of ten thousand. Against this formidable host the Muslims could
muster only three thousand men. So they dug a trench round the
unprotected quarter of the city and relied for the safety of the
other parts on Banu Quraizah who were allied to the Muslims by
Charter of Madinah and were bound to support them in case
Madinah is invaded. These Jews, however, broke their pledge and
joined the invaders. As soon as the enemy raised the siege and
left the place, the Muslims under the Prophet decided to expel
the Jews as their presence in the city might lead in future to
the destruction of the city. Since the Jews refused to leave,
they were besieged and forced to surrender at discretion. They
made only one condition that their punishment should be left to
the judgement of Saad bin Muaz the chief of Banu Aus whose
clients they were. The arbitrator gave the award that their
fighting men should be put to death and their women and children
should be made slaves. The award was implemented. This may be
severe punishment according to modern thinking but it was
customary according to the rules of war then prevalent.
Moreover, the punishment was announced by the arbitrator
appointed by the Jews themselves, the Prophet was not
responsible for this punishment.
4.
About the prisoners taken at Badr, the Prophet is
reported to have said: “If Mutem bin Adi were alive and had
interceded for the release of the prisoners, I would have set them
free on his account”. From this Hadith it can be inferred that
prisoners of war can be set free as a matter of grace, ransom is
not essential.
5.
Six thousand persons were taken prisoners by the
victorious Islamic army in the Battle of Hunain. When a deputation
from the tribe of Hawazin approached the Prophet to secure release
of these prisoners, the prisoners had already been distributed
among the Muslim soldiers. The Prophet called upon the soldiers to
release their prisoners without ransom but if anyone of them
wanted ransom that would be paid out of the first receipt of
income in the public treasury. He himself freed his share
immediately without any ransom. Following his example almost all
the Muslims freed the prisoners of their shares without any
ransom. This example sets the principle that the government is not
authorized to release the prisoners after their distribution among
the Muslims except the willingness of the holders of the
prisoners. The holders may free them gratis or by accepting ransom
which may be paid by the Islamic state out of public treasury.
6.
In the expedition against Tayy, many prisoners of
war were captured including the daughter of famous Hatim Tai. The
prisoners were released for ransom. However, daughter of Hatim had
no one to pay for her ransom, so she was set free by the Prophet
without ransom and was provided conveyance for her journey.
7.
In the Battle of Bani al-Mustaliq, many prisoners
were taken and among them was Juwairiyah whom the Prophet married.
Because of this marriage, all the prisoners were released gratis
by the Muslims, saying : Now they are relatives of the Prophet.
8.
On the occasion of the Treaty of Hudaibiyah, some
eighty persons attacked the Muslim camp at the dawn. However, they
were captured and later on released gratis.
9.
Hadith No.6 given above shows that exchange of
Non-Muslim prisoners captured by Muslims for Muslim prisoners
captured by others was also ordered by the Prophet of Islam. The
Prophet ordered exchange of one person of Bani Oqail who had been
captured by the Muslims for two Muslims who had been captured by
Bani Saqif an ally of Bani Oqail. Thus mutual exchange became a
rule and is still followed.
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II- Rules Framed by the Jurists in the Light of the Text
The jurists of
Islam have framed the following rules regarding the prisoners in
the light of the Qur’anic instructions and traditions of the
Prophet of Islam :
1.
Rule 1:
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Commenting upon verse 4 of Chapter 47 of the Holy Qur’an which is
the main source of Islamic law regarding captives of war, Syed
Abul ‘Ala Maududi writes :
“The general
command that has been given about the prisoners of war is :
“Show them favour, or accept ransom from them”.
“Favour includes
four things : (a) That they should be treated well as prisoners;
(b) That instead of killing them or keeping them in captivity
for lifetime, they should be handed over to the individual
Muslims as slaves; (c) That they should be put under Jizyah
and made dhimmis; and (d) That they should be set free
without ransom.
“There are three
ways of ransoming them: (a) That they should be set free on
payment of a ransom; (b) that they should be set free after
taking some special service from them; and (c) that they should
be exchanged for the Muslim prisoners of war who are in the
possession of the enemy.”
How to deal with
the prisoners of war, the discretion to decide has been left
with the commander. The commander of the forces or in certain
important cases the caliph would decide whether war captives are
to be beheaded, enslaved, released on paying ransom, exchanged
with Muslim prisoners, or released gratis.
The Holy Prophet
and the Companions at different times acted in one or the other
way as the occasion demanded. The Divine Law has not bound the
Islamic government to act in only one particular way. The
government can take any action it deems appropriate on a
particular occasion.
2.
Beheading
of Prisoners:
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The general
principle of law which has been enshrined in chapter 47 verse 4 of
the Qur’an is “either grace or ransom” which means that the war
prisoners may be released gratis or after ransom. From this the
jurists hold that the prisoners should not be put to death. This
is the general rule upon which almost consensus exists among the
jurists of every age. However, possibilities of exceptions to this
general rule also exist as the above mentioned verse of the Holy
Qur’an does not clearly forbid to kill a prisoner. The Prophet of
Islam is also reported to have ordered capital punishment for
certain particular prisoners on some occasions in exceptional
circumstances.
Hence the general
rule is that prisoners of war should not be put to death. But in
extreme cases of necessity and in the higher interests of Islam
and Islamic state, some particular prisoner of war can be killed
for war crimes, for his persecution of Muslims and for his
enmity against Islam. However, no prisoner can be killed for
mere acts of belligerency. And even for war crimes, none can
order, not even the commander of Muslims forces, for the death
penalty. Only the head of state can do so.
If a prisoner
accepts Islam, he cannot be killed. A prisoner can be killed
only when he is in government custody. If he has been given in
custody of someone, he cannot be put to death. In case of
capital punishment, he would be killed in the customary manner
in which the persons found guilty of crimes are killed; he shall
not be tortured to death.
3.
Release with Ransom:
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The Holy
Qur’an has legalised releasing prisoners of war on receipt of
ransom in verse No.4 of Surah 47. Hence there are some instances
of release of prisoners on various kinds of ransom in the reign of
the Prophet. Sometimes the prisoners were required to pay ransom
in gold and silver as the prisoners of Badr were required to pay
one thousand to four thousand dirhams each; sometimes they were
required to render some valuable service as some of the prisoners
of Badr were required to teach a number of Muslim boys how to
read and write; sometimes arms of war were accepted from them as
compensation.
4. Exchange
of Prisoners:
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Release of
prisoners on ransom, as already explained, also includes release
in exchange. Several instances of the exchange of prisoners are
found in the life of the Prophet; sometimes one for one, at others
one for more. We have already related a Hadith according to which
the Prophet exchanged one prisoner of Banu Oqail whom Muslims had
captured with two Muslim prisoners who had been captured by Banu
Saqif an ally of Banu Oqail. On another occasion one female
captive who had been taken prisoner in an expedition led by Abu
Bakr was exchanged with Quraish of Makkah for several Muslims whom
Quraish detained. Hence the exchange of prisoners became a rule
and is still followed, although in later times it developed into a
complicated institution involving exchange of thousands of
prisoners. However, there is consensus that if a non-Muslim
prisoner embraces Islam of his own free will, he may not be handed
over to disbelievers for the purpose of exchange.
5.
Gratis Release:
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This means
release of prisoners without any ransom or compensation. This is
approved rather recommended as one of the options for release of
prisoners by Verse 4 of Chapter 47 of al-Qur’an which recommends
“either grace or ransom” as courses of action for setting free the
captives of war when hostilities have ceased. There are many
instances of gratuitous release of prisoners by the Prophet from
the Battle of Badr until his death. There are also instances of
release on parole with the condition that the released persons
would not take part in hostilities against Muslims. However, order
for such type of release can be issued by the Islamic state or the
commander before the distribution of war captives among the
soldiers, because when they are distributed then they cannot be
released without the consent of the holders. The captives of
Hawazin provide a good example when the Prophet had to pay
compensation from the public treasury to all those who possessed
these captives and who were not willing to part with their share
without ransom.
6.
Enslavement:
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The
recommendation of the Qur’an in its verse 4 of chapter 47 is that
prisoners would be freed either gratuitously or with ransom. Thus
this verse does not directly permit nor does it prohibit
enslavement of war captives. In the practice of the Prophet,
however, there are some instances of enslavement of the prisoners
of war. The females and children of the Jewish tribe of Banu
Quraizah in accordance with award of the arbitrator, were enslaved
and distributed among the Muslims. The captives of Battle of
Hunain were distributed among the Muslim troops, but later on
released when a delegation of Banu Hawazin, who had embraced
Islam, approached the Prophet for their release. Captives of Arab
tribe of Bani-al-Mustaliq were also distributed among the Muslim
troops but later on released voluntarily when the Prophet married
a girl from among the captives after liberating her.
Later on the
Prophet declared that no Arab could be enslaved. Caliph Umar
issued orders that peasants, artisans and professionals of
belligerent states should not be enslaved.
It has been held by the jurists that Muslims captured in war
cannot be made slaves and similarly those who embrace Islam
before being taken as prisoners could not be enslaved. However,
those who accept Islam after being taken prisoners cannot escape
slavery. Caliph Umar is reported to have said : “When a prisoner
embraces Islam after falling into the hands of the Muslims as
captive, he will not be killed, but will remain as a slave”.
7.
Treatment of
Enslaved Prisoners:
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As stated
earlier, those captives of war who are not released gratis or on
ransom or not exchanged are distributed among their capturers or
among the ordinary Muslims as slaves. Before distribution the
Islamic government is responsible for their food, clothing,
lodgement and in case of illness for their treatment. But as soon
as they are distributed, those in whose custody they are given
become responsible for their food, clothing, lodgement, medical
care, etc.
General
instructions issued by the Prophet to his followers about the
prisoners were that they should be accorded very kind treatment
and provided food, clothes and accommodation according to means.
The prisoners cannot be killed or mutilated by those in whose
custody they are given. The Prophet also issued instructions:
“If there is a woman with a child among the prisoners, she is
not to be separated from her child, nor near relatives from one
another. And prisoners are to be treated according to their
status in their society”.
We would
deal with Islam’s treatment of slaves in a separate chapter and
will see how Islam made the slaves brothers of the Muslims and
assigned a very respectable status to them in Islamic society.
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