Chapter 71

2 - The second category: Operations which require detailed legal ruling based on the specific circumstances in which they occur—whether it is a situation of necessity where there is no alternative, or otherwise. This type of operation is exemplified by a fighter placing explosives or bombs in his vehicle, or wrapping an explosive belt around his body, then storming the enemy's headquarters, or feigning surrender to them... and then detonating those materials or bombs with the intention of eliminating the enemy in front of him, even if it entails the inevitable sacrifice of his own life. ¶

It is observed in such operations that the death of the fighter is caused by his own hands and his own weapon, through intention and not by mistake. Although the primary goal of these operations is to eliminate the enemy or inflict harm upon them. ¶

It appears that what applies to these operations is the same as what applies to fighting an enemy that uses Muslims as human shields (tatarrus)—as previously discussed—except that in the operations we are addressing, the 'shield' is the fighter himself. Furthermore, in the case of the enemy using Muslims as shields, it is the enemy who exposes this human shield to danger, whereas in our current case—the fighter wrapping himself in an explosive belt and the like—it is the Muslim fighter himself who exposes his own self to danger. However, the important point in both cases is that reaching the goal of killing the enemy is achieved through the killing of the Muslim 'shield'—in the first case, at the hands of the Muslim fighters and with their own weapons; and in the second case, through the Muslim fighter killing himself with his own hand and his own weapon—i.e., the state of the fighter wrapping his body in an explosive belt and so on. ¶

Since the second case takes the ruling of the first, the summary of this ruling—as presented in the discussion on tatarrus—is as follows: (a) If there is a necessity to fight the enemy, such that the Muslims would suffer severe damages by refraining from fighting, greater than the damages they would suffer from initiating or continuing the fight—then in this situation: the Muslims who are used as shields are sacrificed for the sake of reaching, fighting, and killing the enemy. ¶

The same is said regarding our current issue, if there is a necessity to fight the enemy and kill them in the manner [described]... ¶

What we have explained can only be achieved through the martyrdom operations (amaliyat istishhadiya) that we are discussing. These operations fulfill the objective, and the Muslims carrying them out are sacrificed in order to reach the enemy and kill him, so as to avert a greater harm that would befall the Muslims if they were not to face the enemy with such operations. ¶

B - As for when there is no necessity to fight the enemy - such as in the case of 'tatarrus' (using Muslims as human shields), as we have learned before - it is not appropriate to strike at the Muslims being used as shields. This means: one should refrain from fighting to protect the blood of the Muslims used as shields from being wasted without necessity or a legitimate interest, as previously detailed in the research on 'tatarrus'. ¶

Similarly, it is said in our case here: when there is no necessity to reach the enemy, kill him, or inflict harm upon him, one should refrain from carrying out martyrdom operations to protect the lives of the fighters from being destroyed by their own hands without necessity or a legitimate interest. ¶

This is the summary of what is said regarding the ruling on martyrdom operations by analogy to the issue of 'tatarrus'. What was said regarding justifying Muslims killing their brothers who are used as shields in cases of necessity is also said here regarding the justification for those carrying out martyrdom operations killing themselves in cases of necessity as well. The true target of the killing in both cases is the disbelieving enemy, and not the Muslim, naturally. ¶

Furthermore, there is no need to repeat what was said in the research on 'tatarrus' regarding the legal evidences (shariah proofs) that permit striking at the Muslims who are used as shields. ¶

It is known that one Muslim killing another Muslim is a greater crime than a Muslim killing himself (1). Therefore, if there is no restriction in taking action in that which is a greater crime—not by way of declaring the killing of a Muslim by another permissible, but by way of the necessity that is inevitable in a state of war to avoid a more severe harm—then it should follow, a fortiori, that there is no restriction in taking action in what is a lesser crime, not by way of... ¶

(1) See: Fath al-Bari: 3/227 - where it is mentioned that al-Bukhari, by including the hadiths on 'killing oneself' in the 'Chapter: What has been said regarding the killer of his own soul', intended to: 'include the killer of another under the ruling of the killer of oneself, by way of analogy (a fortiori); for if the killer of himself, who did not transgress against anyone but his own soul, has a severe warning established for him, then one who transgresses against others by causing their death is even more deserving of it!'. ¶

Declaring suicide, or a Muslim taking his own life, permissible [is not intended here]; rather, it is only under the ruling of necessity—which is unavoidable in a state of war—in order to avoid a greater harm. ¶

With this, we conclude the second type of martyrdom operations (istishhadi operations), and we move to the third type. ¶

3 - The Third Type: Operations that fall under the category of prohibited suicide. This type is exemplified by combatants resorting to suicide so as not to fall into enemy captivity, or to escape torture being inflicted upon them or expected, or to find relief from the pains of their wounds, and so on. ¶

The ruling on suicide under such circumstances and conditions is prohibition, because the many Hadiths regarding the stern warning against killing oneself apply to it. Among these is what is narrated in Sahih al-Bukhari and Muslim, on the authority of Jundub (may Allah be pleased with him), from the Prophet (peace be upon him): 'A man had a wound, so he killed himself. Allah said: 'My servant has hastened his end before I willed it; I have forbidden Paradise to him.'' ¶

In a narration by al-Bukhari: 'Among those before you, there was a man who had a wound, and he became impatient. He took a knife and cut his hand with it, and the bleeding did not stop until he died. Allah Almighty said: 'My servant has hastened his end before I willed it; I have forbidden Paradise to him.'' ¶

It is stated in Fath al-Bari, in commentary on this Hadith: 'In the Hadith is the prohibition of killing oneself.' ¶

the self... and in it: the narration regarding past nations, the merit of patience during calamities, and the abandonment of distress caused by pain, so that it does not lead to something more severe. And in it: the prohibition of engaging in causes that lead to the killing of the self (1). ¶

I say: From the above, it becomes clear that suicide caused by impatience—meaning the lack of patience and hastening death to escape pain—has been explicitly prohibited in the aforementioned Hadith. Consequently, the argument suggesting the possibility of the permissibility of committing suicide in circumstances like the one we are discussing contradicts the Shar'i text, as is evident. By this argument, I mean what is stated in the book 'Jihad and Fedayeen in Islam' in the context of discussing the enemy's capture of a Muslim fighter and subjecting him to torture until death. The author says: 'If the suicide is due to the fact that he is certain they will kill him, but they will torture him before that as an exemplary punishment and to provoke the Muslims—then if he commits suicide in this state, his suicide is haram (forbidden), but it is not one of the major sins (kaba'ir), and its permissibility is not far-fetched!!' (2). The author of the aforementioned book then indicates his inclination toward the opinion of permissibility, saying: 'The reality is that in such situations, a Muslim is not considered the killer of his own self. Rather, his killer is his enemy; because it is his enemy who overpowered him, who is torturing him, and who will not leave him until he kills him.' Then he says: 'This is my opinion on the subject; because there is no text regarding it, and I have not seen a fatwa from any scholar on it; perhaps there is a fatwa that I have not seen' (2). ¶

I say: Indeed, the aforementioned Shar'i text, which appeared in the Sahihayn and established the prohibition of a Muslim killing himself with the aim of escaping the pain, wounds, and torture he is suffering—this text, in its absolute form, indicates the prohibition of suicide, whether the motive is the agony of an illness over which the person has no control, or the agony inflicted upon him by the enemy. ¶

Furthermore, there may be a shubha (doubt/ambiguity) in the argument for the potential permissibility of suicide to escape pain. This doubt lies in the claim that suicide in this situation fulfills an interest for the person who has no hope of survival, whether he is sick, wounded, or a prisoner in the hands of the enemy, and is certain that he will die sooner or later under torture. This interest is, in appearance, the cessation of his pain through suicide. ¶

I say: It may be that this misconception is what lies behind the assertion of the permissibility of suicide to escape pain, based on the assumption that Islam came to realize public interests (maslahah). ¶

However, scholars of Usul al-Fiqh (principles of Islamic jurisprudence), when discussing 'maslahah' and utilizing it as an argument in Shariah rulings, have unanimously agreed that if there are specific Shariah texts that address a certain interest which is not a legitimate (mashru') interest, then in such a case, it is considered among the 'masalih mulghah' (nullified interests). It is not permissible to rely upon them to justify actions or behaviors that lead to their realization. ¶

In the issue at hand, there is a clear Shariah text prohibiting the killing of oneself to escape torture and pain. This means that the Shariah has invalidated the notion that escaping pain and suffering is a legitimate interest for which taking one's own life would be permissible. ¶

Professor Dr. Wahbah al-Zuhayli, in 'Usul al-Fiqh al-Islami', provided several examples of 'masalih mulghah', including the one we are discussing. He stated: 'There are many examples of this, such as: dealing in riba (usury), placing the authority of divorce in the hands of a judge or the wife, and a patient who is hopeless of recovery killing themselves.' ¶

Clarifying the meaning of 'masalih mulghah', Dr. Muhammad al-Zuhayli says: 'Masalih mulghah are those interests that have been nullified by rulings, and are not to be taken into consideration, because although they appear to be interests, they conceal behind them harms, corruptions, and religious and social dangers. For example, riba: it has an apparent benefit for the lender through interest, and for the borrower by utilizing the money. Similarly, killing a patient who is hopeless of recovery...' ¶

Furthermore, there is a text in some Fiqh books regarding the prohibition of killing a patient who is not expected to survive, as in the statement: 'For one upon whom an action has been committed from which he cannot survive, it is not permissible to give him anything that would hasten his death.' ¶

Based on the preceding discussion, the suicidal act committed by a Muslim combatant with the aim of escaping torture when surrounded is among the forbidden acts. ¶

Yes, a combatant may perform acts that lead to certain death by his own hands, and the ruling on these varies—is it considered forbidden suicide or not? This depends on the perspective from which it is viewed. This is what we are examining in the fourth and final category of suicidal or martyrdom operations. ¶

4 - The Fourth Category: Suicidal or martyrdom operations regarding which scholarly opinions differ. Jurists have exemplified this category with a ship set on fire by the enemy, containing Muslims who are forced into one of two options: either to die by burning in the fire, or to cast themselves from the ship to die by drowning in the water. ¶

It is stated in Al-Mudawwanah by Imam Malik: "I asked (the speaker is Sahnun asking his teacher Ibn al-Qasim, a student of Imam Malik): 'What is your view on a ship when the enemy sets it on fire while Muslims are on board; did Imam Malik dislike for them to cast themselves overboard? Did he consider them to have assisted in their own destruction?' He said: 'It has reached me that Imam Malik was asked about this, and he said: I see no harm in it. They are merely fleeing from one death to another!' Ibn Wahb said: Rabia said: 'Any man who flees from fire toward something he knows will lead to his death—he should not do so, for if he is only fleeing from one death to an easier one, he has committed what is not permissible for him. But if he was striving in that with the hope of salvation... then for whoever strives in a matter hoping for salvation, there is no sin upon him, even if he perishes in it.' He said: 'And it reached me from Rabia that he said: If he remains patient, it is more honorable, if Allah wills.'" ¶

- In 'Qawanin al-Ahkam al-Fiqhiyya', the expression of this issue is as follows: "There is a difference of opinion regarding a ship upon which fire is cast—does a man cast himself to drown or not? However, if he is being fought, he should not drown himself; rather, he should stand and fight until he dies." ¶

- In 'Al-Sharh al-Kabir' by Al-Dardir, there is some detail on this issue: "It is permissible to transition from one cause of death to another, such as when they burn a ship—if he remains in it, he will perish, but if he casts himself..." ¶

“If he casts himself into the sea, he will perish.” (1) And it is mandatory to move if he hopes for life, or for its extension, even if he encounters something more severe than death in the process! Because the preservation of life is mandatory as long as it is possible. (2) Al-Dasuqi commented on the above, stating: “The premise of the issue is the equivalence of both states: i.e., he knows that if he remains (on the burning ship), he will die immediately, and if he casts himself into the sea, he will die immediately. But if he knows that by entering the sea he will remain alive, even for a moment, or suspects it, or is in doubt about it, while if he remains (on the burning ship) he will die immediately, then it is mandatory for him to enter the sea!” (3) ¶

- It is stated in ‘Al-Mughni’ by Ibn Qudamah regarding this issue: “When the disbelievers set fire to a ship carrying Muslims, and it ignites, then whatever they deem more likely to lead to their safety—either staying on their vessel or throwing themselves into the water—they should do. If both options are equal to them, Ahmad said: He may do as he wishes. Al-Awza’i said: Both are deaths, so choose the easier of the two! Abu al-Khattab said: There is another narration that it is obligatory for them to remain, because if they throw themselves into the water, their death is by their own act, whereas if they remain, their death is by the act of others.” (4) ¶

I say: It is observed from the aforementioned opinions of the jurists that the notion of a fighter resorting to suicide by killing himself with his weapon to escape the fire consuming him and his surroundings is an invalid matter, even if his condition entails prolonged pain and suffering until he dies. On the other hand, it appears from the argument permitting the transition from a state of death imposed on a Muslim by enemies to another state of death chosen by him, if he is able to do so when the two states are equal, that throwing oneself into the water is an act of suicide by drowning in the event that one does not know how to swim. Hence, the author of the book 'Jihad and Fidaiyyah (Self-Sacrifice) in Islam' suggested the possibility that a fighter subjected to torture may resort to suicide by killing himself to escape his plight, for there is no difference. ¶

Apparent differences exist between suicide by drowning—which some jurists have permitted—and suicide by weapon, which jurists have not addressed in this context (1). I say: This is how it appears on the surface. However, I am of the opinion that the jurists who permitted leaping into water in the aforementioned case did not have in mind the concept of suicide—neither by water nor by any other means. Rather, what they had in mind was the concept of fleeing from a situation of certain death imposed by the enemy upon the Muslims. Such flight is permissible according to them, regardless of whether the place they flee to offers salvation or leads to destruction. The act that formed the basis of their inquiry was fleeing from the situation imposed by the enemy, evidenced by the fact that they discussed this issue under the subject of fleeing from combat in the face of the enemy—when it is permissible and when it is not. Based on this, if a person’s ship catches fire and they are certain of destruction, it is permissible for them—according to these jurists—to flee from the fire, even if there is no path for escape except the water, despite the fact that this flight may result in certain death. However, it is not considered 'fleeing from fire' in an absolute sense for one who is surrounded by fire to deliberately kill oneself with a weapon, hanging, or slitting veins and the like. This, in reality, is not fleeing from the situation one is in such that it would be given the ruling of 'flight'; rather, it is a deliberate act of suicide, which is condemned in Islam in the strongest possible terms. Therefore, those jurists who focused on the aspect of 'flight' in the case at hand permitted the transition from fire to water with the intention of fleeing the fire. Those who focused on the aspect of a fighter casting himself into destruction by his own hand and action prohibited moving from fire to water. I say: My view here is that if a fighter’s intention in his action, in the type of situation we are discussing, is to flee from the destruction he is facing, then there is no blame on him, even if he does not hope for salvation in the situation to which he has fled. ¶

As for when his intention behind his action is suicide and hastening death, then it falls under the category of suicide. The combatant in such cases is the judge of his own self, and 'Indeed, actions are by intentions, and for every person is what he intended,' and his reckoning in that regard is with Allah. As for the apparent ruling, the perpetrators of such actions are not considered among the suicides as long as it appears outwardly that the action is of the nature of fleeing from destruction. With this, we conclude the discussion on this subject and move on to another. ¶

(152) There has certainly been for you in the Messenger of Allah an excellent pattern for anyone whose hope is in Allah and the Last Day and [who] remembers Allah often. And when the believers saw the companies, they said, "This is what Allah and His Messenger had promised us, and Allah and His Messenger spoke the truth." And it increased them only in faith and acceptance. Among the believers are men true to what they promised Allah. Among them is he who has fulfilled his vow [to the death], and among them is he who awaits [his chance], and they did not alter [the terms of their commitment] by any alteration. That Allah may reward the truthful for their truth and punish the hypocrites if He wills or accept their repentance. Indeed, Allah is ever Forgiving and Merciful. And Allah drove back those who disbelieved, in their rage, not having obtained any good. And sufficient was Allah for the believers in battle, and ever is Allah Powerful and Exalted in Might. And He brought down those who supported them among the People of the Scripture from their fortresses and cast terror into their hearts [so that] a party you killed, and you took captive a party. And He caused you to inherit their land and their homes and their properties and a land which you have not trodden. And ever is Allah, over all things, competent. O Prophet, say to your wives, "If you should desire the worldly life and its adornment, then come, I will provide for you and give you a gracious release. But if you should desire Allah and His Messenger and the home of the Hereafter – then indeed, Allah has prepared for the doers of good among you a great reward." O wives of the Prophet, whoever of you should commit a clear immorality – for her the punishment would be doubled two-fold, and ever is that, for Allah, easy. And whoever of you is devoutly obedient to Allah and His Messenger and does righteousness – We will give her her reward twice, and We have prepared for her a noble provision. O wives of the Prophet, you are not like anyone among women. If you fear Allah, then do not be soft in speech [to men], lest he in whose heart is disease should covet, but speak with appropriate speech. And abide in your houses and do not display yourselves as [was] the display of the former times of ignorance. And establish prayer and give zakah and obey Allah and His Messenger. Allah intends only to remove from you the impurity [of sin], O people of the [Prophet's] household, and to purify you with [extensive] purification. And remember what is recited in your houses of the verses of Allah and wisdom. Indeed, Allah is ever Subtle and Acquainted [with all things]. ¶

Fourth Topic: Violation of the Honor of the People of War (Ahl al-Harb) - Is it under the umbrella of the general permissibility regarding their lives, honor, and wealth? ¶

The violation of honor here refers to the permissibility of committing adultery with the women of the combatant non-believers (Ahl al-Harb). The intent behind the permissibility of their honor within the scope of the general permissibility of combatant non-believers is the taking of their women as captives (sabaya) and the fighters engaging with them as one engages with wives. ¶

This is the subject matter that this topic addresses... and what necessitated including this as a topic within our current research—that is, 'the practices of combatants and the position of Shariah jurisprudence regarding them'—is that what we have defined as the intent of this topic has been discussed, and practices within its scope have been reported among combatants in our current day. Hence, it became necessary to know the Shariah ruling on this subject. ¶

It is known that what concerns the topic we wish to address is part of the issue of (prisoners and captives) and the related issue of (slavery). However, we will not delve into this issue in all its aspects here; we will limit ourselves only to what is closely related to our current subject. ¶

Accordingly, we will address the topic before us through the following points: ¶

1. First point: Is it permissible to commit adultery with the women of combatant non-believers? 2. Second point: What is meant by capturing (saby) from the people of war? And what is the position of the jurists (Fuqaha) on enslaving captives? 3. Third point: What are the implications of the ruling on enslaving captives, specifically regarding our context here? And is capturing and enslaving permissible in our modern era? ¶

Point One: Is it permissible to commit adultery (zina) with the women of the people of war (ahl al-harb) among the disbelievers? ¶

We address this point through a discussion of the following matters: First: The Shariah ruling on zina. Second: Is there any ambiguity regarding the permissibility of zina with the women of the people of war among the disbelievers? Third: The truth concerning this issue. ¶

First: The Shariah ruling on zina: - Among the Shariah rulings known necessarily as part of the religion is that zina is haram and a major sin (kabeera), due to the many proofs that condemn it and denounce those who commit it. Such as the words of the Almighty: "And do not approach zina. Indeed, it is ever an immorality and is evil as a way" (Surah Al-Isra: 32). And His saying, the Almighty and Majestic: "The woman and the man guilty of zina - flog each of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you believe in Allah and the Last Day. And let a group of the believers witness their punishment" (Surah An-Nur: 2). ¶

- And when this immorality is committed by a person who has been married (muhsan), the prescribed punishment is rajm (stoning) until death, as stated in Sahih Muslim and others regarding the stoning of 'Ma'iz al-Aslami', 'al-Ghamidiyyah', and others. ¶

- In Sahih al-Bukhari and Muslim, there is a warning against this immorality; narrated from Abu Hurairah that the Prophet (peace be upon him) said: "A person who commits zina is not a believer at the time he is committing it." And in Al-Mustadrak by Al-Hakim, from Abu [Hurairah]... ¶

Abu Hurairah narrated: 'The Messenger of Allah ﷺ said: When a slave commits zina (adultery/fornication), faith exits him and hangs over him like a cloud; but when he desists, faith returns to him.' ¶

These and many other Shariah texts indicate that zina is absolutely prohibited, including zina with non-Muslim women from among the belligerent enemies (al-a'da' al-muharibin) during a state of war and in enemy territory (dar al-harb) — as is the requirement of the absolute and general nature of Shariah texts. ¶

Secondly: Is there a misconception regarding the permissibility of zina with the women of the belligerent disbelievers (ahl al-harb)? ¶

To answer this question, we present the verse that is thought to constitute a misconception regarding the matter at hand, present what has been stated in its exegesis, and then clarify the nature of the misconception. ¶

- Allah the Almighty, in the context of encouraging Jihad and explaining the abundant reward awaiting the Mujahideen for the hardships they endure and the severe punishment they inflict upon the enemy, says in this regard: '...That is because they do not suffer thirst, nor fatigue (2), nor hunger (3) in the way of Allah. Nor do they tread any ground (4) that enrages the disbelievers, nor do they inflict any injury (5) upon an enemy, but it is recorded for them as a righteous deed. Indeed, Allah does not allow to be lost the reward of the doers of good' (Surah At-Tawbah: 120). ¶

Al-Tabari says in his exegesis of the verse: 'Nor do they tread any ground: meaning land. He says: Nor do they tread...' ¶

A land whose trampling enrages the disbelievers. They do not attain anything from the enemy of Allah and their own enemy—whether it be their wealth, their lives, or their children—but that a reward for a righteous deed is written for them as a result. (1) Al-Qurtubi says: 'Making the trampling of the lands of the disbelievers equivalent to attaining their wealth and expelling them from their homes—which is what enrages them and brings humiliation upon them—is tantamount to acquiring spoils of war, killing, and capturing.' (2) This is what the noble verse indicates regarding treading upon the lands of the disbelievers and inflicting damage upon them, as mentioned in the exegeses. That is, what is meant by that treading upon the disbelievers and inflicting damage upon them is killing the enemies, taking them captive, invading their lands, seizing their wealth and properties, and the like. However, Al-Alusi mentions in his interpretation of the verse under consideration the following: 'It was used as evidence—as transmitted by Jalal al-Suyuti—by Abu Hanifah (may Allah be pleased with him) for the permissibility of adultery with the women of the people of war (Ahl al-Harb) in the Abode of War (Dar al-Harb)!' Furthermore, Al-Alusi did not offer any commentary on this statement! It appears that the generalization in permitting any treading that enrages the disbelievers, and the permissibility of any gain the Muslim fighter attains from them—I say, this generalization in permitting the treading and the gain is the suspicion that lies behind what has been said in this regard, assuming the transmission is authentic. In any case, does this suspicion have any merit in considering its reliance on the general wording that appeared in the verse, as previously pointed out? This is what we shall address in the third point of this section: Third: The truth regarding this issue. The truth in this matter is that adultery with the women of the people of war in the lands of the disbelievers is forbidden in the Shariah, due to the aforementioned legal texts that prohibit adultery absolutely. ¶

As for the doubt previously alluded to, it is a doubt that holds no weight in terms of sound scrutiny, for the following reasons: ¶

A- Every word in the language has its concept defined by the context in which it occurs. For instance, the words 'wat' (to tread/intercourse) and 'nayl' (to reach/attain), even if they may, when used absolutely, denote the specific connection between a man and a woman, the context in which they appeared here relates to war and fighting the enemy. Therefore, the meaning of 'wat' here must be restricted to what relates to war and combat. Thus, in this situation, it either means 'to strike/oppress' (batsh), or it means 'treading upon the enemy's lands' by invading and conquering them, as previously mentioned. ¶

Similarly, the word 'nayl' from the enemies—by virtue of appearing in a context discussing war and fighting—means everything related to inflicting harm upon the enemies, whether in their persons through fighting, wounding, and capturing, or in their wealth through seizing and plundering. All of this falls under the category of war, in the light of which the two words 'wat' and 'nayl' must be interpreted. ¶

Furthermore, committing adultery (zina) with the women of the warring unbelievers is not an act of war, such that we would say the words 'wat' and 'nayl' imply everything they could linguistically cover, including adultery with the people of war. Therefore, any such connection between a combatant and any captive woman from the people of war—before a ruling of slavery (riqq) is passed upon her, before the combatant possesses her as a slave, and before she is considered equivalent to a wife regarding care, intimacy, and the lineage of children potentially born from that union—I say, any such connection between the combatant and that woman from the people of war, prior to what we have mentioned, falls under the category of forbidden adultery (zina). ¶

B- It is linguistically valid to apply the words 'wat' and 'nayl' to sexual misconduct (fisq) with males... ¶

Has anyone ever claimed that war with the disbelievers in their own lands makes such immorality (sodomy) with their men permissible? If it is argued that sodomy is among the major sins, and that the lands of disbelief and the state of war do not make it permissible, then the same must be said here: Zina (adultery/fornication) with women is absolutely among the major sins, and the lands of disbelief and the state of war do not render it permissible. ¶

C - Yes, there is a scholarly dispute regarding this issue; namely, the issue of committing Zina with the women of the harbis (those at war with Muslims) in the lands of war. However, this dispute does not concern whether such Zina is haram (forbidden) or mubah (permissible). There is a consensus on its prohibition. The dispute is merely over whether the hadd (prescribed legal punishment) should be enforced upon the perpetrator of this indecency if it occurred outside the realm of the Islamic State, or whether the enforcement of the hadd is not required, even though what he did was haram in any case (1). ¶

Having said that, it is not our intent here to delve into this specific issue. What concerns us is that the position of prohibition regarding the matter at hand is one about which there is no disagreement. ¶

Evidence for this is found in Musannaf Abd al-Razzaq—with an isnad consisting entirely of reliable (thiqat) narrators—that Sharhabil ibn al-Simt was in command of an army and said to his troops: 'You have descended upon a land with abundant women and wine. Whoever among you commits an act requiring a hadd, let him come to us so we may purify him.' Some people came to him! When this reached Umar ibn al-Khattab, he wrote to him: 'May your mother be bereaved of you! Are you the one who orders people to tear the veil of God that He has placed over them!' (2). ¶

Drinking wine is among the forbidden acts that necessitate the hadd punishment. Although Umar ibn al-Khattab (may Allah be pleased with him) rebuked an army commander for asking those who succumbed to the temptations of such prohibitions to come forward and confess their sins so that he could implement the hadd upon them. He held the view that as long as no one else had witnessed the sin, it was better for the perpetrator to limit himself to repentance between him and his Lord. ¶

D - Furthermore, the Almighty’s saying: “And they who guard their private parts except from their wives or those their right hands possess, for indeed, they are not to be blamed. But whoever seeks beyond that, then those are the transgressors” (Surah Al-Mu'minun, 5-7) explicitly indicates that the permissibility of sexual relations for men is restricted to wives and owned slave women. It mandates that whoever seeks relations with someone other than a wife or a slave woman has crossed the boundaries of what is lawful and violated the sacred limits set by Allah. ¶

Based on this, it is not permissible to have sexual relations with women of the people of war before they are captured, judged to be enslaved, and distributed among the combatants such that one or more are assigned to a single man—prior to this, relations without a valid Shariah marriage are not permitted. ¶

Moreover, it is an established Shariah principle that: “The original ruling regarding private parts is prohibition.” Therefore, all sexual relations are haram except for those excluded by this principle through marriage or right of possession (milk al-yamin). It is not valid to cite the verse “And they do not tread any ground that enrages the disbelievers...” to justify adultery with the women of the disbelievers in the lands of disbelief, because adultery is absolutely haram. Regarding this verse, Ibn Hazm says: “Allah the Almighty has only commanded us to enrage them with things He has not forbidden, not with things He has forbidden us to do!” ¶

With this, we conclude the first point of this section and move to the second point. ¶

2 - The second point: What is meant by captives (sabaya) from the people of war? And what is the stance of the jurists on enslaving captives? ¶

First: What is meant by Saby (captivity)? ¶

- In 'Mukhtar al-Sahah': 'Al-Saby and al-Siba' mean: taking captive. I have 'sabaytu' the enemy, meaning I have taken them captive. 'Al-Sabiyyah' is the female captive.' (1) ¶

In 'Al-Misbah al-Munir': 'A boy is called 'sabiy' or 'masbiy'. A girl is called 'sabiyyah' or 'masbiyyah'. Their plural is 'sabaya', like 'atiyyah' and 'ataya'. A group of people as 'sabiy' is used as an adjective by the root noun.' (2) ¶

Furthermore, the term 'Saby' may be applied to those who have been taken captive, whether men, women, or children. As stated in some Shariah texts: 'The Messenger of Allah ﷺ returned six thousand captives (saby) from Hawazin, including men, women, and children, when they embraced Islam...' (3). This is because the word (saba) carries the same meaning as (asara - to capture) in the language. Therefore, it is permissible to use it for men just as it is used for women and children. It is mentioned in 'Al-Umm' by Al-Shafi'i: 'The Messenger of Allah ﷺ took men from Hawazin as captives (saba), and we do not know that he inquired about the husbands of the captive women, whether they were captured with them, before them, or after them? Or if they were not captured at all?' (4). ¶

However, in Fiqh terminology, the words (al-asr and al-asra - captivity and captives) are generally reserved for men, while the word (al-saby) and its derivatives are reserved for women and children. ¶

Al-Mawardi, while discussing 'spoils' (al-ghanimah), says: 'They consist of several categories: captives (asra), captives (saby), lands, and wealth. As for the asra: they are the combatant men from the disbelievers if the Muslims capture them alive...' (5) - He then adds -: 'As for the saby: they are the women and children...' (6). ¶

Accordingly, 'Saby' when used absolutely refers to the women and children taken captive from the enemy's population. However, here, in our current discussion, we intend by 'Saby' specifically the women who are taken captive from the people of war (ahl al-harb). This is what pertains to the intended meaning of the word (Saby). ¶

Second: What is the position of the jurists (fuqaha) regarding the issue of enslaving captives? ¶

It is stated among the Hanafis that the Imam has the authority to enslave captives, just as he has the authority to set them free so they may return to their lands by way of ransom (mufada) in times of necessity. ¶

Regarding this, it is stated in Hashiyat Ibn Abidin: 'Women and children are not to be killed; rather, they are to be enslaved for the benefit of the Muslims.' Also, in Radd al-Muhtar it is stated: 'They agreed that there should be no exchange for women and children... except out of necessity.' ¶

As for the Malikis, they leave the decision regarding the fate of the captives to the Imam, as stated by Ibn Juzayy: 'As for women and children, the Imam has the choice between granting them amnesty (mann), ransom, or enslavement.' ¶

Among the Shafi'is, it is stated in Al-Minhaj and its commentary Mughni al-Muhtaj: 'The women and children of the disbelievers, if captured, become slaves. That is, they become slaves simply by the act of capture! The khums (one-fifth) of them belongs to those entitled to the khums, and the remainder belongs to the victors, because the Prophet (peace be upon him) used to distribute captives just as he distributed wealth. By 'captives' (sabi), it is meant women and children.' ¶

Al-Mawardi mentions among the rulings of captives that it is permissible for the Imam to ransom them for wealth or for Muslim captives held by the enemy, provided that he compensates the combatants from the owners of the spoils for their right. ¶

Regarding the compensation for captives equivalent to their value, and that if a person who has acquired spoils refuses to forfeit his share of the captives, he shall not be compelled to relinquish it until he is satisfied. This is the position of the Shafi'is. As for the Hanbalis, it is stated in 'Al-Mughni' by Ibn Qudamah: 'Captives from the Dar al-Harb (territory of war) are of three types: (First) women and children; it is not permissible to kill them, and they become slaves to the Muslims simply by virtue of their capture, because the Prophet (ﷺ) forbade the killing of women and children... and he (ﷺ) would enslave them when he captured them.' Al-Farra mentions among the rulings on captives according to the Hanbalis that it is not permissible to exchange them for wealth or for Muslim captives held by their people, nor is it permissible to show them grace (mann) without compensation. The summary of the aforementioned, which is significant for our study of this issue, is that the enslavement of women who have been taken prisoner from the Dar al-Harb is a matter upon which all schools of jurisprudence (madhahib) are in agreement, as previously stated. Furthermore, this enslavement is an automatic ruling resulting from captivity, with no discretion for anyone in the matter, according to the Shafi'is and Hanbalis. As for the Hanafis, it is the result of a decision by the authority (sahib al-salahiyya), with the possibility that the decision may be to ransom them in cases of necessity. Regarding the Malikis, the enslavement of female captives is not an absolute certainty; rather, the authority has the option to decree their enslavement or their ransom. There is also a view that it is permissible to release them without compensation. Beyond this, what are the consequences of the ruling to enslave female captives from the subjects of the Dar al-Harb? This pertains to the final point of this section. 3 - Third point: What are the consequences of the ruling to enslave captives? And is it permissible to enslave captives in our current era? ¶