By Sheikh Fayal Mawlawi - Iumsonline.net – July 24, 2007

Many oppressed Muslims battle today against their occupiers, such as in Palestine, Kashmir and Afghanistan. In addition, others are being subjected to malicious campaigns, such as the campaign that the US pro-Zionism Christian Right is launching everywhere against Islam and Muslims under the pretext of fighting terrorism.    

Due to the absolute imbalance between Muslims and their enemies, at first glance, it seems that the enemies will gain victory. Consequently, Muslim youth who are full of enthusiasm to defend their religion and nation, develop new methods to manage the conflict, aiming at breaking the wall of imbalance and applying pressure on the enemies to stop their aggression, and to make them recognize the rights of those who are oppressed. The excessive enthusiasm of some young men may drive them to carry out operations without verifying their permissibility; and in so doing, they distort the image of Islam that the Almighty made a mercy to the worlds and a guide toward absolute morality. Almighty Allah says: “Say: Lo! As for me, my Lord hath guided me unto a straight path, a right religion, the community of Abraham, the upright, who was no idolater.” (Al-An`am 6: 161)

The operation that took place at a theater in Moscow on October 23, 2002 is an example of these operations. A large number of Chechens entered a theater and took the audience hostage. They demanded that the Russian government withdraw from Chechnya; otherwise, they would blow up the theater and everyone who was inside it. After that, they released foreign hostages and children. After a two-and-a-half day siege, Russian OSNAZ pumped gas into the building's ventilation system and raided it. Officially, 39 of the Chechens were killed, along with at least 120 hostages, while the rest suffered serious injuries.

Political Analysis: Fiqhul Waqi`ah (Jurisprudence of the Incident)

In our political analysis of this incident, we consider it a terrible mistake for two reasons:

First: Any state, even if it is small or weak, cannot change its policies by applying this kind of pressure; therefore, what if it is related to Russia, which is one of the two superpowers of the world? What actually happened was that due to the difficult economic circumstances and the collapse of the Soviet Union, Russia was forced to leave the field for the United States to lead the world alone. However, it still enjoys its previous glory and considers itself a world superpower.  

Second: The United States made the decision to invade Iraq under the pretext of toppling the tyrannical regime of Saddam Hussein. Hence, it applied pressure on the Security Council to issue an international resolution allowing it to do so and it also removed the objections of the many Arab countries that did not agree to allow the Americans to use the American bases on their land without the authorization of the Security Council. It is well-known that Russia and France opposed the decision to invade Iraq in the Security Council; thus, it was supposed to thank Russia for this position and to ask it to continue applying pressure and to use its veto; not to carry out such an operation in the heart of the Russian capital.

Issuing a resolution from the Security Council allowing the invasion of Iraq was a serious matter and caused a great deal of harm to Iraq; however, what is even more serious was the way in which some Arab countries participated in this invasion by allowing American forces to use their land. Of course, this situation reminds us of the second Gulf War, where Arab countries fought against each other. As a result, ties of brotherhood among nations were destroyed, and our nation has failed up till the present time to end the state of disagreement and to restore the minimum degree of Arab solidarity despite all the efforts that have been exerted in this regard.

In the light of this introduction, the importance of studying such operations from the Shar`i perspective increases in order to show the Muslim youth the right way.

Description of the Issue

1.             There is a declared state of war between Russia and Chechnya.

2.              It is well-known that Russia is superior to Chechnya at all levels. The Russian forces use their deadly weapons to kill Chechen children, women and the elderly and to cause massive destruction in the places where fighting is taking place.

3.             In order to create a kind of equality and balance, Chechen fighters resort to some exceptional methods, such as kidnapping some Russians and taking them hostages, and threatening to kill them if their specific demands are not met.

Based on this description, we will deal with the Shar`i matters that have been raised in the following points:

1.             Studying the most important incidents of kidnapping and detention during the time of Prophet Muhammad (peace and blessings be upon him):

If we examine the biography of Prophet Muhammad (peace and blessings be upon him), we find a limited number of the incidents of kidnapping and detaining enemies. We can classify them into two groups:

The first group: Operations for kidnapping enemies that were carried out on the order of Prophet Muhammad (peace and blessings be upon him). We did not find any example except the incident of kidnapping Thumamah ibn Uthal Al-Hanafi. It is related that the Messenger of Allah (peace and blessings be upon him) sent Al-`Alaa’ ibn Al-Hadrami to the king of Bahrain Al-Mundhir ibn Thawa to call him to Islam. After he (Al-Mundhir) converted to Islam, Al-`Alaa’ came back to the Prophet (peace and blessings be upon him) and said to him, “I passed by Thumama ibn Uthal Al-Hanafi and he asked, ‘Are you the messenger of Allah?’ I replied, ‘Yes.’ He said, ‘By Allah, you will never reach Muhammad again.’ And he tried to kill me but his uncle `Amir ibn Salamah prevented him.” Upon that the Prophet (peace and blessings be upon him) said, "O Allah, guide `Amir to Islam and let me capture Thumamah.' `Amir embraced Islam and the Prophet (peace and blessings be upon him) used to order any one who was setting out on any direction, saying, “Should you meet Thumamah, you should capture him.” The Prophet (peace and blessings be upon him) gave this order to Muhammad ibn Maslamah who set out with some cavalry towards Najd. When he reached Najd he met some people who were preparing food, and one of them was Thumamah ibn Uthal. Muhammah ibn Maslamah arrested him and fastened him to one of the pillars of the mosque and then he sent him to the Prophet (peace and blessings be upon him) guarded by Abu Na’ilah and other four persons. When Abu Na’ilah reached the Prophet (peace and blessings be upon him) with Thumamah, he (the Prophet) ordered to have Thumamah fastened to one of the pillars of the mosque. The Messenger of Allah (peace and blessings be upon him) went to him and said, "What have you got, O Thumamah?" He replied," I have got a good thought, O Muhammad! If you should kill me, you would kill a person who has already killed somebody, and if you should set me free, you would be doing a favor to one who is grateful, and if you want property, then ask me for whatever wealth you want." He was left till the next day, when the Prophet said to him, "What have you got, Thumamah?" He said, "What I told you, meaning, if you set me free, you would be doing a favor to one who is grateful." On that the Prophet (peace and blessings be upon him) said, "Release Thumamah." So he (Thumamah) went to a garden of date-palm trees near to the mosque, took a bath and then entered the mosque, and said, "I bear testimony that there is no god but Allah, and I also testify that Muhammad is the Messenger of Allah! By Allah, O Muhammad! There was no face on the surface of the earth most disliked by me than yours, but now your face has become the most beloved face to me. By Allah, there was no religion most disliked by me than yours, but now it is the most beloved religion to me. By Allah, there was no town most disliked by me than your town, but now it is the most beloved town to me. Your cavalry arrested me (at a time) when I was intending to perform `Umrah. And now what do you think?" The Messenger of Allah (peace and blessings be upon him) gave him good tidings (congratulated him) and ordered him to perform `Umrah. So when he came to Mecca, someone said to him, "You have become a Sabian?" Thumamah replied, "No! By Allah, I have embraced Islam with Muhammad, the Messenger of Allah. By Allah, you will not get a single grain of wheat from Yamama until it is permitted by the Messenger of Allah (may peace be upon him)." (This incident was related in various narrations in the Sahihs of Al-Bukhari and Muslim and Sirat Ibn Hisham).

What can be concluded from this story?

1.             There was a declared state of war. Thumamah ibn Uthal wanted to kill Al-`Ala' ibn Al-Hadrami the messenger of Prophet Muhammad (peace and blessings be upon him), even though messengers are not to be killed, even in the state of war.

2.             The Prophet (peace and blessings be upon him) ordered that Thumamah be kidnapped as he was one of the leaders of the enemy. It was Thumamah who wanted to kill one of the Muslims outside the battlefield. Thus, he also deserved to be killed outside the battlefield.

3.             The one who kidnapped Thumamah did not kill him; but, he handed him to the ruler; the Messenger of Allah (peace and blessings be upon him). In spite of the seriousness of his action and the fact that he deserved to be killed, the Prophet (peace and blessings be upon him) released him for nothing, hoping that he would embrace Islam. This asserts one of the important objectives of the Islamic Shari`ah: calling people to Islam, and not killing them.

The second group: Operations were carried out by Muslims without the orders of the Prophet (peace and blessings be upon him).

The first incident: When the Prophet (peace and blessings be upon him) came to Makkah to perform `Umrah his Companions arrested some local people, taking them unaware. The Prophet (peace and blessings be upon him) ordered them to be released as reported by At-Tabari in his Tafsir. Mujahid said, “The Prophet (peace and blessings be upon him) came to Makkah to perform `Umrah. His Companions arrested some local people, taking them unaware. The Prophet (peace and blessings be upon him) ordered them to be released and sent them back to Makkah.”

We see that the Prophet (peace and blessings be upon him) did this; releasing unbelievers who were taken prisoner, because he did not consider himself in a state of war with the unbelievers, as his purpose was to perform `Umrah.

The second incident: Kidnapping four unbelievers at the hands of Salamah ibn Al-Akwa`. Also, the incident of his uncle kidnapping a son of `Ablah ibn `Ubaid after the Truce of Al-Hudaibiyah. The Prophet (peace and blessings be upon him) released them all. This incident was related in Sahih Muslim when relating the Battle of Dhi Qird. Salamah ibn Al-Aqwa` is reported to have said, “When we and the people of Makkah had concluded a peace treaty and the people of one side began to mix with those of the other, I came to a tree, swept away its thorns and lay down (to rest) at its base; (while I lay there), four Makkan polytheists came to me and began to speak ill of the Messenger of Allah (peace and blessings be upon him). I became enraged with them and moved to another tree. They hung their weapons (to the branches of the tree) and lay down (to rest). (While they lay there), somebody from the lower part of the valley cried out: ‘Run! O Muhajirs (the emigrants)! Ibn Zunaim has been murdered.’ I drew my sword and attacked these four men while they were asleep. I seized their weapons and collected them up in my hand, and said: ‘By the Being Who has conferred honor upon Muhammad, none of you shall raise his head, or I will strike his face.’ (Then) I drove them along to the Prophet (peace and blessings be upon him). (At the same time) my uncle `Amir came (to him) with a man from `Abalat called Mikraz. `Amir was dragging him on a horse with a thick covering over its back along with seventy polytheists. The Messenger of Allah (peace and blessings be upon him) cast a glance at them, and said: ‘Leave them so that they will be the ones who initiate evil and repeat it (before we take action against them).’…”

We can conclude from this incident that there was a peace treaty between the Messenger of Allah (peace and blessings be upon him) and the polytheists. Therefore, Salamah remained patient when the four unbelievers were speaking ill of the Messenger of Allah (peace and blessings be upon him). However, when Salamah heard about the murder of Ibn Zaynam he did so (kidnapped them) thinking that the unbelievers had already violated the peace treaty. His Uncle `Amir did the same. However, we notice that Salamah and `Amir did not kill any of the people who had been kidnapped. Rather, they handed them over to the Messenger of Allah (peace and blessings be upon him) who was the ruler. The Prophet (peace and blessings be upon him) released them, and said this wonderful phrase, “Leave them so that they will be the ones who initiate evil and repeat it (before we take action against them).”

This means that initiating evil is a characteristic of unbelievers. It must never be a characteristic of Muslims. Muslims may repel evil by using a similar measure, but their purpose in doing so is not to retaliate; rather, it is to prevent any repeat of the evil that has been committed against them, and to totally remove it from the domain of human relations. Therefore, Islam calls for pardon and patience, as it (pardon) has a better effect in preventing evil from being repeated.

The third incident: Thaqif took two of the Prophet's Companions (may Allah be pleased with him). Thus, some of the Prophet's Companions captured a man from the tribe of Banu `Uqail who was the ally of the tribe of Thaqif. The man of Banu `Uqail asked the Prophet (peace and blessings be upon him), "Why have you taken me as a prisoner?" The Prophet (peace and blessings be upon him) answered him, "I (my Companions) have caught hold of you for the crime of your allies, Banu Thaqif." The man of Banu `Uqail said, "I am hungry, feed me, and I am thirsty, so provide me with drink." The Prophet (peace and blessings be upon him) said, "That is (to satisfy) your want."

Thus, we can conclude from this incident that the Prophet (peace and blessings be upon him) did not object to capturing the man of the tribe of `Uqail; as his tribe was the ally of the Muslims' enemy. However, he (peace and blessings be upon him) satisfied his need for food and drink; this means that it is impermissible to harm or starve anyone who has been kidnapped.

Shari`ah Rules Related to Taking Hostages

First, in general, taking hostages is not lawful in Islam. However, it may be practiced against the enemy in a state of war. This is supported by the fact that all the cases in which the Prophet (peace and blessing be upon him) allowed holding hostages took place during wartime. Moreover, he (peace and blessings be upon him) did not approve of such cases in which the Muslims took hostages at times when there was a peace treaty in place between the Muslims and the polytheists; on the contrary he (peace and blessing be upon him) ordered that hostages be set free [unconditionally].

Second, even during a state of war, it is not lawful to take ambassadors, messengers, delegates, those given pledges of security, or the residents who belong to foreign countries as hostages. This is based on the following:

a) The Prophet (peace and blessings be upon him) said, “I do not imprison messengers.” (Reported by Abu Dawud) Also, Ibn Mas`ud (may Allah be pleased with him) also said, “It is an act of the Sunnah that messengers are not to be killed” (Reported by Al-Bayhaqi).

b) It is not lawful to hold as hostages or kill those who have been given pledges of security and the residents who belong to foreign countries. Doing such a thing is a kind of breach [of trust] and Almighty Allah does not like those who breach their trusts. Besides, the Prophet (peace and blessings be upon him) forbade breaching trusts.

3. As long as taking hostages is an act that may be regarded as lawful only in a state of war, it is not to be directed at those against whom war has not been launched principally. That is to say, it is not to be directed at non-combatants—women, children, the elderly, monks [and nuns, priests, and so on]—since those people do not participate in war. Should a non-combatant be held as a hostage [by a Muslim person or group], he or she is to be set free immediately.

4. It is lawful to take enemy warriors as hostages, if the Muslim leader has so ordered during the war as was the case when the Prophet (peace and blessings be upon him) asked the Muslims to hold Thumamah ibn Uthal in captivity when they found him. [Keep in mind that Thumamah tried to kill the messenger that the Prophet (peace and blessings be upon him) sent to the king of Bahrain.]

However, if the Muslim soldiers hold in captivity an enemy warrior without having been given an order previously from their leader to that effect, they are to hand over this warrior to the leader so that he can decide what to do with him.

5. Those who have been kidnapped and detained as well as hostages have the same rulings as captives as follows:

a) It is an important Islamic duty to treat prisoners of war kindly and gently, be hospitable to them, and provide them with food and clothing. After the Battle of Badr, the Prophet (peace and blessings be upon him) ordered that the unbelievers who had been taken captive should be treated kindly. Complying with his order, his Companions gave the captives their food before they themselves ate. The Prophet (peace and blessings be upon him) gave this general order: “Be sure to treat captives kindly.” (Reported by At-Tabarani) They must never be subjected to ill-treatment or torture. They are not to be hit unless there is a legitimate reason and upon the request of the ruler.

b. The majority of jurists agreed that the Imam is free to choose from four things concerning captives:

·                    Releasing captives as an act of grace that requires nothing in return.

·                    Releasing captives in return for a ransom which could be monetary, or through prisoner exchange, or in the form of a service they render to the Muslim community. The Prophet (peace and blessings be upon him) asked some of those who had been taken prisoner at the Battle of Badr to teach some Muslims to read and write in return for their release. All these forms of ransom are well-proved in authentic hadiths on the authority of the Prophet (peace and blessings be upon him).

·                    Killing them: The Prophet (peace and blessings be upon him) killed `Uqbah ibn Ma`it, Tu`aymah ibn `Udayy and An-Nadr ibn Al-Harith on the Day of Badr (See: Majma` Az-Zawa'id, vol. 6, p. 89). On that day, he (peace and blessings be upon him) said, "None will be released without a ransom; otherwise, his neck will be struck." (Reported by At-Tirmidhi)

·                    Enslaving them: The Prophet (peace and blessings be upon him) and the Rightly-guided Caliphs (may Allah be pleased with them) enslaved some captives; as slavery was prevalent at that time and this was based on the rule of equal treatment. In his famous book Zad Al-Ma`ad, Ibn Al-Qayyim (may Allah have mercy upon him) said, "It was narrated that the Prophet (peace and blessings be upon him) killed some captives, ransomed others with money or Muslim captives and enslaved some others. However, it is well-known that he (peace and blessings be upon him) did not enslave an adult man." (See: Zad Al-Ma`ad, vol. 5, p. 65)

6. Mass killing of captives or hostages is impermissible as the Almighty says in the Ever-Glorious Qur'an (what means), "… thereafter (is the time for) either generosity or ransom …" (Muhammad 49: 4) Thus, this honorable verse identified the basic judgment concerning those who had been taken captive, kidnapped or held as hostages. Slavery was an exceptional judgment related to the system that was prevalent at that time; thus, when this system was abolished, this judgment became unjustified. Also, killing was an exceptional judgment as it belonged to some captives who deserved to be killed for reasons other than being captured. Hence, this explains why the Prophet (peace and blessings be upon him) killed some captives but did not kill others.

Indeed, many scholars rule that it is forbidden to kill a captive of war. In his tafsir (exegesis of the Qur’an), Ibn Kathir states: “Scholars say that the Muslim ruler’s only choice is to set captives free, either as an act of grace or against ransom, but it is prohibited to kill a captive.” Al-Hasan and Hammad ibn Abi Sulayman reported in As-Siyar Al-Kabir that it is reprehensible to kill a captive of war. In his tafsir, Al-Jassas reported the reprehensibility of killing a captive of war on the authority of Al-Hasan, `Ataa’, Mujahid and Ibn Sireen. It is also reported that Ibn `Umar refused to kill a captive who was handed over to him by `Abdullah ibn `Amir, and said, “As he came to me fastened after falling into captivity I will not kill him.” Al-Jassas also reported that when a noble of Istakhar (a location in Persia) was handed over to Ibn `Umar after falling into captivity, he (Ibn `Umar) refused to kill him, and recited Almighty Allah’s saying, “Thereafter, set them free, either by an act of grace or against ransom.” (See Ahkam Al-Qur’an, vol. 5, p. 269) Al-Alousi says: “The apparent meaning of the Qur'anic verse: “Thereafter, set them free, either by an act of grace or against ransom” is that it is forbidden to kill a person after taking him prisoner. (See Rawh Al-Ma`ani)

In his priceless book, Bidayat Al-Mujtahid, Ibn Rushd says: “A number of scholars say that it is not permissible to kill a captive. Al-Hasan ibn Muhammad At-Tamimi says that it is the unanimous view of the Companions of the Prophet (peace and blessings be upon him).” However, Dr. Wahbah Az-Zuhailai reported in his book “Al-Fiqh Al-Islami wa Ad-Dillatih” the agreement of Muslim scholars that killing a prisoner of war after taking him captive is not permissible with regard to women and children.

I say that there is consensus among scholars that the original judgment concerning captives is either releasing them for nothing or taking ransom; as the honorable Qur'anic verse indicates this frankly. However, according to what the Prophet (peace and blessings be upon him) and the Rightly-guided Caliphs did, the captive can be killed, if there are legitimate reasons other than him being captured. 

My Opinion Regarding the Issue in Brief

Accordingly, I assert that the mass killing of those who have been captured, hostages or those who have been kidnapped without making any distinction between those who deserve to be killed and those who do not – such as bombing a plane with its passengers or blowing up a place and everyone inside it – is an illegitimate act, according to all schools of Fiqh. The majority of scholars say that killing a captive is impermissible; while those who allowed him to be killed stipulated that the ruler, and not the kidnapper, should implement this judgment in order to be sure that the reason which necessitates this act actually exists, and to prevent Muslims from being involved in killing innocent persons, who may not even be killed during the battle.

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* This article was published for the first time on Nov. 4, 2002