Prisoners Rights in Islam vs. Modern Law
The scenes of Palestinian prisoners being released as part of the exchange deal between Hamas and
the Israeli occupation have brought back into focus the plight of those still
held in inhumane conditions by “Israel.” The emotional footage of freed prisoners reuniting with their families revealed the extent of their
deprivation—especially their denial of the right to contact their loved ones
and the dire deterioration of health services inside prisons. Since the Al-Aqsa Flood operation, the occupation halted all family visits and cut
off any communication between prisoners and the outside world, turning their
captivity into total isolation and unbearable anxiety, as described by one of
the released detainees.
This scene raises profound
questions about the difference between the Islamic perspective on captivity and
prisoners’ rights and the modern legal framework represented by the Human
Rights Convention and the Geneva Conventions.
The Islamic Perspective on Captivity
The issue of taking captives
dates back to ancient civilizations. When Islam came, it permitted the
principle of captivity during war with the enemy, affirming this through divine
texts:
{So when you meet
the disbelievers ˹in battle˺, strike ˹their˺ necks until you have thoroughly subdued them, then bind them
firmly. Later ˹free them either as˺ an act of grace or by ransom until
the war comes to an end. So will it be.} [Muhammad 47:4] And: {And He brought down those from the People of the
Book who supported the enemy alliance from their own strongholds, and cast
horror into their hearts. You ˹believers˺ killed some, and took others captive.} [Al-Ahzab 33:26]
`Aziz Ibn `Umayr reported: I was
among the prisoners of war on the day of the battle of Badr. The Messenger of
Allah (peace be upon him) said: “I enjoin you to
treat the captives well.” I was among the Ansar after I accepted
Islam. When lunch or dinner time arrived, they would eat dates and give me
wheat bread, due to the command of the Messenger of Allah.
Conditions for Taking Captives in Islamic Law
These Islamic texts deeply
influenced jurists and scholars of Siyar (law of war and international
relations) and Maghazi (battles), followed by schools of thought. They
agreed that freedom is the original state of human beings, and therefore
captivity should meet strict conditions. Among them:
- The captive must be a combatant or associated
with the enemy forces.
- He must be of sound mind and loyal to the
enemy.
- His capture must serve a legitimate Muslim
interest.
- He should not be under a treaty of peace or
security when captured.
Rights of Prisoners Under Islamic Law
Islamic jurisprudence books are
filled with rulings on the rights of captives, both material and moral. Among these rights are:
1. Food and Water: Jurists
emphasized providing food and drink to captives, following the Quranic command:
{And they food—despite their desire for it—to the
poor, the orphan, and the captive.} [Al-Insan 76:8]
Ibn Abbas narrated that the
Prophet (peace be upon him) instructed his companions on the Day of Badr to
treat the captives honorably, therefore, they would prioritize them over
themselves at mealtime.
Based on this, jurists stated
that starving prisoners and captives is forbidden. They said: whoever imprisons
a person whose life is protected and withholds food, drink, and medical
care until he dies is a killer who must be held accountable. Abu Yusuf and
Muhammad even held that blood-money (diyah) is due
from anyone who causes such a death; because he is “a quasi-intentional killer,
since food, drink and warmth are among the necessities of a human being and
life depends on them, so whoever deprives him of them destroys him by that
deprivation,” (Ad-Durr Al-Mukhtar)
2. Clothing: Clothing
is an essential human necessity, hence a necessity for captives. The Prophet
(peace be upon him) clothed two captives on the Day of Badr, and Imam Al-Bukhari
even dedicated a chapter in his Sahih titled “Clothing for Captives.”
3. Shelter: A proper
living space is another right of prisoners. Scholars defined it as a suitable
place with adequate space, bedding, and basic needs.
4. Religious
Freedom: Islam strictly forbids forcing captives to abandon their
faith. They are allowed to practice their religious rituals freely, as coercion
in religion is prohibited.
5. Prohibition of
Torture: Jurists categorically rejected the principle of torturing or
mutilating captives as a means of exerting pressure on them, even if the
purpose was to extract information about the enemy. In Bada’i` As-Sana’i`,
it is stated that it is impermissible to torture them through hunger, thirst,
or any other forms of torture. Likewise, in At-Taj Wal-Iklil, it is
narrated that Imam Malik was asked: “Is it acceptable to torture a captie if it
is hoped that he would reveal the vulnerability of the enemy?” He replied: “I
have never heard of such a thing.”
The Muslim Captive’s Rights
Just as scholars discussed the
treatment of enemy captives, they also addressed the case of Muslim captives
held by the enemy, affirming their rights and the Muslim community’s duty
toward them. Among these rights are:
- Their salaries remain active to support their
families.
- If they are killed, their heirs are entitled
to well-paid compensations.
- Their property remains protected and does not
transfer to others.
- Their inheritance is preserved. Judge Shurayh
used to allocate inheritance to captives, saying: “They are most in
need of it.” Ibn Battal also reported that the majority of scholars
held that the inheritance of a captive is saved for him until he returns.
- Their marriage remains valid until they
return or confirmed dead.
Jurists unanimously agreed on the
obligation to rescue Muslim captives, whether by combat, ransom, or
negotiation.
Al-Fazari narrated in Kitab As-Siyar:
I asked Al-Awza`i: “Did `Umar Ibn `Abdul `Aziz ransom Muslim captives?” He
said: “Yes, he sent Ibn Abi `Amrah to ransom them, and he did so until death
overtook him.”
When asked whether it was
obligatory upon the ruler to ransom Muslim captives from the public treasury, Al-Awza`i
replied: “Yes, regardless of the cost—even if one Muslim were to be exchanged
for ten non-believers.”
Ibn Rushd wrote in Al-Bayan Wat-Tahsil:
“Malik was asked whether it is obligatory for Muslims to ransom their captives.
He said: Yes. Is it not obligatory for them to fight to free them? Then how
could they not ransom them with their wealth?”
Then Ibn Rushd continued, quoting
`Umar Ibn Al-Khattab (may Allah be pleased with him) who said: “I do not like
to conquer one of their fortresses at the cost of the death of a single Muslim
man.”
Thus, Ibn Rushd deduced that it
is obligatory for the Imam (Muslim ruler) to secure the release of Muslim
captives from the public treasury (Bayt al-Mal); and whatever the treasury
falls short of, becomes a collective obligation upon all Muslims through their
own wealth. Thus, the ransom and liberation of captives became a communal duty
(fard kifayah) according to the consensus of the majority of jurists.
The Legal Perspective on Captives
International law recognized the
rights of prisoners of war centuries after Islam had established them. The Four Geneva Conventions of 1949 laid the legal framework for the humane
treatment of prisoners. Among their key principles are:
- Right to life:
States are prohibited from killing prisoners under any circumstances.
- Safe detention:
Prisoners must be kept away from combat zones.
- Personal belongings:
Prisoners may retain personal items except for weapons.
- Humane treatment: Any
form of torture or cruel treatment is forbidden.
- Equality: Discrimination based
on gender, religion, or race is prohibited.
- Religious freedom:
Prisoners are entitled to practice their religion.
- Healthcare: Prisoners must
receive adequate medical care.
Comparing Captivity in Islam vs. Modern Law
There are clear similarities
between the Islamic and modern legal perspectives regarding prisoners’ rights.
However, key differences remain:
International law lacks effective
enforcement mechanisms or penalties for violations, allowing many states to
ignore these conventions without consequence.
The Islamic framework ties the
protection of captives to faith and divine accountability, making the violation
of these rights a sin with worldly and eternal consequences.
Moreover, Islamic law encourages
the liberation of captives through multiple means—ransom, exchange, and others.
For Further Reading:
- Ruling on Seeking Assistance in Combat: Facts and Objectives
- 9 Rules of War in Islam
- Humanitarian Aspects of Islam
-------------------------------------------------------------
