Re: Rights of POWs According to the Qur'an

Date: April 19, 2004

With recent news disclosures that American captives and POWs would be treated in accordance to the rights of Prisoners of War according to the Qur'an, the following should be of interest.

NOTE: This article is based on a talk by Syed Abul A'la Maudoodi and has been translated into English by Prof Ahmed Said Khan and Prof Khurshid Ahmad. It was published by the Islamic Foundation, UK.

"Rights Of Enemies In War

Before the advent of Islam the world was ignorant of the concept of humane and decent rules of war. The West first began to develop this concept through the works of the seventeenth century thinker, Grotius. But the nineteenth century. Prior to this all forms of barbarism and savagery were perpetrated in war, and the rights of those in a war were not even recognized, let alone respected.

The 'laws' which were framed in this field during the nineteenth century or over the following period up to the present day cannot be called agreements, because nations do not regard them as bindings unless, of civilized laws imply that if our enemies respect them, we shall also respect them but if they ignore them then we shall ignore them, too. Arrangements which depend on mutual acceptability cannot be called 'laws'. This is the reason why so-called 'international law' has been constantly flouted and ignored.

Law Of War And Peace In Islam

The rules which have been framed by Islam to make war civilized and humane are in the nature of law, because they are the injunctions of Allah and His prophet (blessings of Allah and peace be upon him) which are followed by Muslims in all circumstances, irrespective of the behavior of the enemy. It would be instructive to research into how well the West has adopted the laws of war given by Islam fourteen hundred years ago; and, even after their adoption, how well the West has managed to attain those heights of civilized and human warfare behaviour which Muslims have reached through the blessings of Islam.

Western writers have often asserted that the Prophet (blessings of Allah and peace be upon him) borrowed his teachings from the Jews and the Christians. It is sufficient here to recommend the reader to refer to the Bible* so that he can see what methods of ware are recommended by the sacred Book of these Western claimants to civilization and culture.

We have examined in some detail the basic human rights that Islam has conferred on man. Let us now look at the rights and obligations Islam recognizes for any enemy.

The Rights Of Non-Combatants

Islam has drawn a clear distinction between combatants and non-combatants in any enemy country. As far as the non-combatant population it concerned ? women, children, the old and the infirm ? the instructions of the Prophet are as follows: "Do not kill any old person, any child or any woman" (AbuDawood). "Do not kill the monks in monasteries" and "Do not kill the people who are sitting in places of worship" (Musnad of Ibn Hanbal).

During a war, the prophet saw the corpse of a woman lying on the ground and observed: "She was not fighting. How then came she to be killed?" From this statement of the Prophet the exegetists and jurists have drawn the principle that those who are non-combatants should not be killed during or after a war.

The Rights Of Combatants

Now let us see what rights Islam has conferred on the combatants.

1. Torture by fire

In the Hadith there is a saying of the Prophet that: "Punishment by fire does not behoove anyone except the Master of the Fire" (AbuDawood). The injunction deduced from this saying is that the adversary should not be burnt alive.

2. Protection of the wounded

"Do not attack a wounded person" said the Prophet. This means that wounded soldiers who are not fit to fight, nor actually fighting, should not be attacked.

"Do not attack a wounded person" said the Prophet. This means that wounded soldiers who are not fit to fight, nor actually fighting, should not be attacked.

3. Prisoners of war should not be slain

"No prisoner should be put to the sword" ? a very clear and unequivocal instruction given by the Prophet.

4. No-one should be tied to be killed

"The Prophet has prohibited the killing of anyone who is tied or is in captivity."

5. No looting and destruction in the enemy's country

Muslims have been instructed by the Prophet not to pillage or plunder or destroy residential areas, nor harm the property of anyone not fighting. It has been narrated in the Hadith: "The Prophet has prohibited the Believers from loot and plunder" (Bukhari, AbuDawood). His injunction is: "The loot is no more lawful than the carrion" (AbuDawood). AbuBakr Siddeeq used to tell soldiers on their way to war: "Do not destroy the villages and towns, do not spoil the cultivated fields and gardens, and do not slaughter the cattle."

Booty of war from the battleground is altogether different. It consists of the wealth, provisions and equipment captured from the camps and military headquarters of the combatant armies and may legitimately be appropriated.

6. Sanctity of property

Muslims have been prohibited from taking anything from the general public of a conquered country without paying for it. If the Muslim army occupies an area of the enemy country, it does not have the right to use the things belonging to the people without their consent. If the army needs anything, it should purchase it from the local population or should obtain permission from the owners. AbuBakr Siddeeq used to tell Muslim armies being dispatched to the battle-from that they should not even use the milk of the cattle without the permission of the owners.

7. Sanctity of a dead body

Islam has categorically prohibited its followers from mutilating the corpses of their enemies, as was practised in Arabia before the advent of Islam. It is said in the Hadith: "The Prophet has prohibited us from mutilating the corpses of the enemies" (Bukhari, AbuDawood). The occasion on which this order was given is highly instructive. In the battle of Uhud the disbelievers mutilated the bodies of the Muslims who had fallen on the battlefield by cutting off their ears and noses and threading them together to put round their necks as trophies of war. The stomach of Hamza, the uncle of the Prophet, was ripped open by the Quraysh and his liver was taken out and chewed by Hinda, the wife of AbuSufyan, the leader of the Makkan army. The Muslims were naturally enraged by this horrible sight. But the Prophet asked his followers not to mete out similar treatment to the dead bodies of the enemies.

This great example of forbearance and restraint should be sufficient to convince any reasonable man that Islam really is the religion sent down by the Creator of the universe; if Islam allowed human emotions free rein, this horrible sight on the battlefield of Uhud would have provoked the Prophet to order his followers to mutilate the bodies of their enemy in the same manner.

8. Return of corpses of the enemy

In the battle of Ahzab a renowned enemy warrior was killed and his body fell into the trench which the Muslims had dug for the defence of Madina. The unbelievers presented ten thousand Dinars to the Prophet and requested that the dead body of their fallen warrior be handed over to them. The Prophet replied: "I do not sell dead bodies. You can take away the corpse of your fallen comrade."

9. Prohibition of breach of treaties

Islam has strictly prohibited treachery. One of the instructions that the Prophet used to give to Muslim warrior when sending them to the battlefront was: "Do not be guilty of breach of faith. "This order has been repeated in the Holy Qur’an and the Hadith again and again. there is a famous incident in the peace treaty of Hudaybiya when, after the settlement of the terms of the treaty, AbuJandal, the son of the emissary of the unbelievers who had negotiated the treaty with the Muslims, came bound and blood-stained to the Muslim camp crying for help. The Prophet told him: "Since the terms of the treaty have been settled, we are not in a position to help you. You should go back with your father. God will provide you with some other opportunity to escape this persecution."

The entire Muslim army was deeply touched and grieved at the plight of AbuJandal and many of them were moved to tears. But when the Prophet declared "we cannot break the agreement," not a single person came forward to help the unfortunate prisoner; so the unbelievers forcibly dragged him back to Makkah. This is an unparalleled example of the observance of the terms of agreement by Muslims; Islamic history can show many similar examples.

10. Rules about declaration of war

It has been laid down in the Holy Qur’an: "If you apprehend breach of treaty from a people, then openly throw the treaty at their faces" (8:58). In this verse, Muslims have been prohibited from opening hostilities against their enemies without properly declaring war against them, unless, of course, the adversary has already started the aggression. Present-day 'international law' has also laid down that hostilities should not be started without declaration of war, but since this is a man-made rule, it is often disregarded. Muslim laws, on the other hand, have been framed by Allah and may not be disregarded.

This article is based on a talk by Syed Abul A'la Maudoodi and has been translated
into English by Prof Ahmed Said Khan and Prof Khurshid Ahmad. It was published by the Islamic Foundation, UK."

ALSO

"
 


 

Treatment of Prisoners of War
by Dr. Muhammad Hamidullah
Reproduced from Ch. XV of The Muslim Conduct of State 7th edition, Sh. Muhammad Ashraf, Lahore, Pakistan by Dr. Muhammad Hamidullah
(435) This subject naturally falls into two parts, viz. Muslim soldiers or other soldiers made captive by the enemy, and the subjects and soldiers of the non-Muslim power taken prisoners by the Muslims (see also infra, 538) 

Enemy Prisoners Captured by Muslims

 (439) As regards taking prisoners, there are two Quranic verses: 
(i)"Now when ye meet in battle those who disbelieve, then it is the smiting of the necks until ye have routed them; then making fast of bonds; and afterwards either grace or ransom till the way lay down its burdens."
(ii) "It is not for any Prophet to have captives until he hath routed (the enemy) in the country." In both of these verses the verb occurs which means "to route," "to dominate," "to subjugate". Al-Mathurdi commenting on the latter verses gives it similar meaning:  Until he makes ithkhan in the country, that is, he dominates, it. So that when he has received the ransom and lets them go free after having dominated the country in order that they return to a place where there is no utility and no association (for them). (440) According to Muslim law, a prisoner qua prisoner cannot be killed. Ibn Rushd even records a consensus of the Companions of the Prophet to the same effect. This does not preclude the trial and punishment of prisoners for crimes beyond the rights of belligerency. For this, we possess the high authority of the practice of the Prophet when two prisoners of the Battle of Badr were beheaded by his order. Muslim jurists clearly recognise that a prisoner cannot be held responsible for mere acts of belligerency:  Similarly there is unanimity that belligerents would not be held responsible for damage they inflicted on Muslims regarding life and property. This would be so even when they embrace Islam or become Muslim Dhimmis, i.e. subjects. For they did that conscientiously and in accordance with the dictates of their religion and at a time when they were authorised to do that, possessing as they did a resisting power. So they were on the same footing as Muslims. The same is true regarding the capture of property. (441) Treatment during captivity has been the subject of liberal provisions. As regards the prisoners of Badr, the Prophet ordered: "Take heed of the recommendations to treat the prisoners fairly." The consequence was that many Muslim soldiers contented themselves with dates and fed the prisoners in their charge with bread. Abu Yusuf remarks that prisoners must be fed and well treated until a decision is reached regarding them. They are not to be charged for their food, the cost of which is to borne by the capturing Muslim State. The Qu'ran lays down:  "Lo, the righteous shall ... [go to Paradise] ... (because) they perform the vow and fear a day whereof the evil is wide spreading, and feed with food the needy wretch, the orphan and the prisoner, for love of Him, (saying): we feed you, for the sake of God only, we wish for no reward not thanks from you." Prisoners are to be protected from heat and cold, and the like. If they have no clothes, these might be provided, as was the practice of the Prophet. If they are in any trouble or discomfiture, this is to be done away with as far as possible, for which there is authority of the practice of the Prophet. He has the right to draw up [a] will for the property at home. Obviously these would be communicated to the enemy authorities through a proper channel. Among prisoners, a mother is not to be separated from her child, nor other near relatives from each other. The position and dignity of prisoners are to be respected according to individual cases. A tradition is also attributed to the Prophet: "Pay respect to the dignitary of a nation who is brought low." There is no evidence in early Muslim history of exacting labour from prisoners. It they tried to escape or otherwise violate discipline, they might be punished. If they succeeded in their attempt to escape. and reach safety, and are again captured, their previous offense of escaping might not be ground for punishment, except perhaps the breach of parole. 

(442) Muslim law leaves to the discretion of the commander to decide whether prisoners of war are to be (a) beheaded, (b) enslaved, (c) released [up]on paying ransom, (d) exchanged with Muslim prisoners, or (e) released gratis. We shall treat them separately. 

Beheading of Prisoners

(443) We have already seen that the prisoners surrendering on conditions are treated according to the terms of their capitulation. On unconditional surrender, mere past acts of belligerency constitute no grounds for inflicting capital punishment. No doubt, crimes other than these might bring punishment on the prisoner. According to Abu Yusuf, a prisoner might be beheaded only in the interest of Islam, though he also records many opinions of high authority that their beheading was disliked (makruh). According to Sarakhsi, even the commander-in-chief cannot do that; only the head of the State can decide to put to death some particular prisoner. We have seen that unanimity was reached among the Companions of the Prophet not be behead prisoners of war. In short, capital punishment for prisoners of war is permissible only in extreme cases of necessity and in the interests of the State. 

Enslavement

(444) There is no verse in the Qu'ran directly permitting enslavement, yet some indirect mention is found in the following: 
"O Prophet! lo! We have made lawful unto thee they wives unto whom thou hast paid their bride-money, and those who they right hand possesseth, of those whom God have given the spoils of war...." (445) In the practice of the Prophet, however, though few, there are instances of it. The females and children of the Jewish tribe of Banu Quraizah were, by the decision of the arbitrator nominated by themselves, enslaved and distributed as booty. 

This arbitral award was in conformity with the Jewish personal law. The captives of the Arab tribe of Hawazin, in the year 8H., were distributed among the troops, but later on all of them were set free in answer to the supplication of the Hawazinites after their conversion to Islam. This manumission was not decreed as a right, but the Muslim soldiers were prompted by the personal example of the Prophet; and those who would liberate their share were yet ordered to do that and were compensated by the State-treasury. A little earlier, the Arabian tribe of Banu;l-Mustaliq had also incurred the same fate of losing females and children to the Muslim army. This time the Prophet married a girl from among the captives, who happened to be the daughter of the chieftain of the tribe, after liberating her. And Muslim soldiery was persuaded to free all the enslaved persons who had now become near relatives of the Prophet. The prisoners of Banu'l-'Anbar were set free either gratuitously or on ransom. 

(446) The policy of the Prophet reached a climax when, as is said, he decreed that Arabs cannot be enslaved. The Caliph 'Umar issued orders that peasants, artisans, and professional of belligerent countries should not be enslaved. The Qur'an exhorted liberation of slaves, and provided that the income of the Muslim State should every year partly be allotted for the manumission of slaves. Another verse was interpreted by the Caliph 'Umar to mean that if a Muslim slave wanted to work and thus pay off his value to his master, the master was not allowed to refuse the offer. 

(447) Thus it might be inferred that though Islam has done much to minimize slavery, it has not abolished it altogether. Certainly it is not obligatory always to enslave prisoners of war, yet it cannot be denied that the supreme commander of an army has the choice to accord the prisoners either enslavement or any other treatment. A word of caution may not be out of place. The Slave in Islam, does not convey the same idea as in other civilisations. For a slave of a Muslim has a right to equality with his master in food, clothing and dwelling. It cannot be denied that is was an easy method of proselytising non-Muslims, which is the prime policy of a Muslim State. 

(448) As we have just seen, to enslave the prisoners of war, male or female, is not at all obligatory. On the other hand, to free gratuitously or on ransom are the two alternatives, - probably in order of preference,  commanded by the Qu'ran (xlvii. 4) regarding them. Of course, it is not very easy to stop such a practice one-sidedly, if the adversaries are not inclined to do likewise. Ibn Jubair, for instance, has left us in his graphic and heartrending description of captive Muslim women and children sold as slaves, in most abject conditions, in the markets of Italy, where he had encountered them on his way to Mecca. Nevertheless, Islam had done much to improve international treatment of slaves, and Hobhouse (Moral in Evolution) has no hesitation in admitting that the betterment of the treatment meted out o slaves in non-Muslim countries, Christians not excluded, is traceable mostly to Islamic influence. 

(449) Not being an obligatory rule of conduct, if Muslims voluntarily give it up, they commit no sin and no violation of their law. In fact, it is their own ideal. However, it must not be forgotten that waiving the right of enjoyment of a permission given by law, by Muslims of a country or period, does not abrogate the Divine law; and if other Muslims find it necessary, for some reason or other, to reinstate it, they will not be violating their law either. 

(450) In fact, there are circumstances in which it may be in the interest of humanity to have recourse to enslavement. If, for instance, a people religiously believe that all aliens are untouchable, [then] treat human beings worse than animals, and at the same time refuse to listen to the counsel of humanitarianism; or if a people of one complexion have an exaggerated prejudice against those created by God with a skin of another colour, and treat them in a disgusting manner, it is in the interest of humanity to proceed internationally against such inhumane people, enslave them, and to put them under the mandate of a people who have no prejudices of colour or race or tongue. Let us hope such a need will not press. 

(451) For treatment of and laws governing slaves in Islam, I refer to my monograph published by the Law Union of the Osmania University, which contains also a bibliography; see also my article "Slavery in Islam," in the Ramadan Annual of The Muslim Digest, Silver Jubilee Numbar, Durban, March 1960. 

(452) The Qur'an has legalised releasing prisoners of war [up]on ransom (cf. xlvii. 4), and there are many instances in the life of the Prophet of liberating them with various kinds of ransom and compensation. So they were required sometimes to teach a number of Muslim boys reading and writing; sometimes money in gold or silver was demanded; sometimes other goods, for instance, spears and munitions of war, were accepted. It is not our concern whether the ransom was paid by the prisoner from his private purse or he was aided in it by his friends or government. The Caliph 'Umar II released full one hundred thousand prisoners and acquired the city of Malatiya from the Byzantines. 

Exchange of Prisoners

(453) Of exchange, a special kind of ransom, there are many instances in the life of the Prophet: sometimes for one, at other [times] for more. In later times, it developed into a complicated institution involving the release of thousands of prisoners at a time. In certain treaties the value of the ransom of prisoners was fixed in definite sum of money. 

(454) It is natural that vehicles employed for the purpose of conveying exchangeable prisoners - cartels as they are called - should be immune during their journey to and fro. It is also obvious that during the time of this journey they should not take part in hostilities on pain or losing their immunity. 

Gratuitous Release

(455) The Qur'an has recommended this when hostilities have ceased (cf. xlvii. 4). There are not a few instances of it in the life of the Prophet. For the Battle of Badr until his death, one comes across gratuitous releases of prisoners every now and then. There were also cases of release on parole that they would no more take part in hostilities against Muslims. 

(456) Before the booty - in which prisoners according to Muslim law are included - is distributed among the capturers, the commander is free to deal with the prisoners as he likes. But after they are enslaved and distributed, the consent of each recipient is necessary in all those acts of the commander which affect adversely the possessory rights of the owners of the now enslaved prisoners. The prisoners of Hawazin provide a good precedent, when the Prophet allowed compensation from the public treasury to all those who were not willing to part with their booty of slaves. "