Chapter 78

- We have previously discussed that the Prophet ﷺ showed grace (mann) to Thumamah ibn Uthal, the leader of the people of Yamamah (1). - It is also narrated in Sahih Muslim that he ﷺ granted grace to eighty prisoners of war from the polytheists who were captured while they were seeking an opportunity of the Prophet's ﷺ and the Muslims' inattentiveness to betray and attack them (2). ¶

This is what is said regarding showing grace to prisoners and releasing them without ransom. 2 - Fida' (Ransom): This is the second ruling regarding prisoners of war. The evidence for this is the Almighty’s saying regarding the ruling on prisoners after the cessation of war: ﴿Then either favor (conferment of) release or ransom﴾ (3). The majority of jurists (fuqaha), including the Malikis, Shafi'is, Hanbalis, Hasan al-Basri, Ata ibn Abi Rabah, and Sa'id ibn Jubayr, have adopted this ruling (4). Fida' can be through monetary payment or through an exchange of prisoners between the two sides. - Al-Shawkani states: "Fida' is broader than just being through wealth; it includes freeing prisoners in exchange for our prisoners, for all of that is Fida'" (5). I add: Fida' can also be through work or services performed by the prisoners themselves. This is based on what was narrated regarding the prisoners of Badr, that the Prophet ﷺ: "Accepted the ransom of some of them by having them teach a group of Muslims how to write" (6)... Likewise, Fida' can be in the form of specific benefits—whether scientific, industrial, economic, or similar—performed by the state or the entity to which the prisoners belong. ¶

Regarding them [the prisoners] — for the benefit of the Islamic State. This is the stance of the Hanafis regarding the 'ransom of prisoners' (fida' al-asra), as stated in Hashiyat Ibn Abidin: ¶

'It is prohibited to ransom them... meaning, to release their prisoner in exchange for compensation, whether it be wealth or a Muslim prisoner.' ¶

The first case: [i.e., ransoming for wealth] is not permissible according to the famous view, though there is no harm in it in times of necessity. As for the second case: [i.e., ransoming in exchange for releasing Muslim prisoners] it is not permissible according to him [Abu Hanifa], but it is permissible according to both of them (1), i.e., Abu Yusuf and Muhammad, the students of Abu Hanifa. ¶

The argument for the impermissibility of ransoming prisoners for wealth is their claim: so that these prisoners do not return to fight against the Muslims (2); and because Allah the Almighty rebuked the taking of ransom from the prisoners of 'Badr' in His saying: 'It is not for a prophet to have captives [of war] until he inflicts a massacre [or dominance] upon the land' (3). ¶

Al-Shawkani responded to the use of this verse as evidence by saying: 'The utmost that this verse implies is prioritizing the infliction of dominance (ithkhan) over ransoming, and it does not state that ransoming is not permissible!' (4). ¶

Moreover, the ransoming of disbelieving prisoners for wealth, and in exchange for Muslim prisoners held by them, is proven during the time of the Prophet (ﷺ), which indicates the permissibility of ransom even if the disbelievers return to their lands to fight the Muslims. Furthermore, the return of these prisoners to fight the Muslims is also a possibility in the case of 'releasing them as a favor' (mann), and the majority (jumhur) have deemed it permissible and not abrogated; therefore, if it is permissible through ransom, it is even more appropriate. ¶

These are some of the documented instances regarding the legitimacy of ransoming prisoners of war (ahl al-harb): - It is mentioned in Sahih al-Bukhari, regarding the ransoming of the Quraish prisoners in the Battle of Badr, from Anas bin Malik (may Allah be pleased with him): 'Some men from the Ansar requested permission from the Messenger of Allah (ﷺ), and they said...' ¶

Let us have permission to waive the ransom for our nephew (Abbas), to which he [the Prophet ﷺ] said: 'Do not remit even a dirham of it.' - It is also in Sahih al-Bukhari that Al-Abbas (may Allah be pleased with him) said: 'I ransomed myself and I ransomed Aqil,' meaning, from their captivity at the Battle of Badr. - It is stated in Sunan Abi Dawud: 'From Ibn Abbas, that the Prophet ﷺ set the ransom for the people of Jahiliyyah on the day of Badr at four hundred.' - It is also mentioned in Sirat Ibn Hisham that the Prophet ﷺ accepted the ransom for the two captives taken by the expedition of Abdullah bin Jahsh. This concerns the ransoming of captives with wealth. As for exchanging them with Muslim captives held by the disbelievers, it is established in Sahih Muslim—as previously mentioned in the hadith regarding the Sahaba capturing the Uqayli man, an ally of Thaqif—that the Prophet ﷺ exchanged him for the two companions of his who had been captured by Thaqif. (Footnote summary: Regarding the term 'our nephew' used for Abbas, the scholars note it was a display of intelligence to establish an obligation of gratitude upon the Prophet ﷺ, yet the Prophet ﷺ refused to grant any concession to avoid any perception of bias in the religion. Other footnotes provide the scholarly citations for the hadiths and details from Ibn Hajar and others regarding the amounts of ransom and the identities of those involved.) ¶

After this, that which is said regarding the ransom of prisoners, we now move to another of their rulings, which is: ¶

3- Killing: It is permissible for the authority (sovereign) to pass a death sentence upon the disbelieving prisoners of the enemy—all of them, or some of them—when the public interest (maslahah) necessitates this ruling. This is the position held by the majority of the Hanafi, Maliki, Shafi'i, and Hanbali schools. ¶

There is an opposing opinion, which Ibn Kathir mentioned in his Tafsir, stating: "Some have said: The Imam (leader) is only given the choice between showing favor (releasing without ransom) to the prisoner or ransoming him; killing him is not permissible." ¶

In 'Al-Siyar al-Kabir', it is stated: "Al-Hasan (may Allah be pleased with him) used to dislike killing a prisoner, except during battle, to intimidate the enemy. Hammad ibn Abi Sulayman (may Allah have mercy on him) used to dislike killing a prisoner after the war had laid down its burdens... They used evidence for this from the report that 'Abdullah ibn 'Amir sent a prisoner to Ibn 'Umar (may Allah be pleased with them both) to be killed. He said, 'By Allah, I will not kill him while he is 'masruran' (bound/tied up).' Meaning: After you have restrained and captured him, I will not kill him. - He then adds -: The interpretation of Ibn 'Umar's hadith is that he disliked killing him while his hands were tied, not that it is said he avoided killing him after capture. We say the same: It is better not to kill him while his hands are tied if there is no fear that he will escape or kill any of the Muslims." ¶

Al-Jassas cited in his Tafsir narrations from Al-Hasan, 'Ata, and Ibn Sirin regarding the dislike of killing a prisoner, and said: "It was narrated from Ibn 'Umar that a prominent leader from Istakhr was brought to him to be killed, but he refused to kill him and recited the verse: 'Then either grace or ransom' (Quran 47:4)." ¶

In Bidayat al-Mujtahid, it states: 'A group has said: It is not permissible to kill a prisoner of war. Al-Hasan ibn Muhammad al-Tamimi reported this as the consensus of the Sahabah.' In the Tafsir of Al-Alusi, it states: 'The apparent meaning of the verse... is the prohibition of killing after capture. Al-Hasan (al-Basri) also held this view.' ¶

Many contemporary Islamic writers have inclined towards the view of prohibiting the killing of prisoners, except in special circumstances and cases of necessity. ¶

The argument for not killing a prisoner is that the verse regarding 'mann' (bestowing favor/release) or 'fida' (ransom) restricts the ruling on prisoners to these two options. ¶

I say: The reality is that the word 'imma' (either/or)—as linguists state—carries many meanings, and it does not necessarily imply restriction (hasr) to the options provided in every context it appears. Here, in the Almighty’s statement regarding the ruling on prisoners: 'Then either grace [afterwards] or ransom' (Qur'an 47:4), the word 'imma' does not signify an exclusive choice between only release or ransom. This is due to the existence of other evidences that indicate the permissibility of killing prisoners, enslaving them, or designating them as Dhimmis, alongside the options of bestowing grace upon them or accepting ransom. The function of the word 'imma' in this text regarding its restrictive implication is similar to what is mentioned in Sahih al-Bukhari and Muslim regarding the choice given to the guardian of a murder victim—the ruling on the killer—which is the Prophet's (ﷺ) statement: 'Whoever has a person killed, he is given the choice of two best things: either blood money (diyah) or retaliation (qisas).' That is, either the blood money is paid to the guardian if he wishes, or he is empowered over the killer to enact qisas if he likes. It is well known that although the word 'imma' appears in this Hadith to restrict the guardian's choice—as is apparent—between the right to accept diyah and the right to qisas, other evidence establishes that the guardian also possesses the right to pardon. ¶

The killer, in addition to the right to blood money (diyah) and the right to retaliation (qisas), these evidences strip the word 'imma' (either/or) of its restrictive connotation. ¶

Similarly, regarding the verse on showing favor and ransoming captives: 'Then either favor [bestowed] afterwards or ransom [accepted],' it is said that the word 'imma' here does not restrict the ruling concerning captives solely to showing favor or ransoming, as long as there are other evidences that establish the permissibility of execution or enslavement. ¶

As for the evidences for the permissibility of executing captives: One of these is the account regarding the Prophet’s (PBUH) consultation concerning the captives of Badr from the army of the polytheists. This story was narrated in full by Abdullah ibn Abbas from Umar ibn al-Khattab, as found in Sahih Muslim. Among what was stated therein: 'Seventy were killed that day, and seventy were taken captive... Ibn Abbas said: When the captives were taken, the Messenger of Allah (PBUH) asked Abu Bakr and Umar, "What is your opinion regarding these captives?" Abu Bakr said, "O Prophet of Allah! They are our cousins and kin. I suggest that you take ransom from them, so it may become a strength for us against the disbelievers, and perhaps Allah will guide them to Islam." The Messenger of Allah (PBUH) said, "What do you think, O Ibn al-Khattab?" I said, "No, by Allah, O Messenger of Allah! I do not hold the same view as Abu Bakr. I suggest that you give us authority so that we may strike their necks! You give Ali authority over Aqil to strike his neck, and give me authority over so-and-so (a relative of Umar) so I may strike his neck! For these are the leaders of disbelief and its chieftains." The Messenger of Allah (PBUH) favored what Abu Bakr said and did not favor what I said...' ¶

I say: This hadith, which appears in Sahih Muslim, indicates—among other things—the permissibility of executing all captives, not just some. This is because the Prophet (PBUH) did not rebuke Umar for his opinion regarding their execution. And had the execution of captives, or at least the execution of some of them who had not previously... ¶

If they pose no harm to the Muslims, and no harm or danger is expected from them, then killing them all—or killing these specific individuals—is not legitimate (mashru'), otherwise the Prophet (peace be upon him) would have rebuked (Umar ibn al-Khattab) for his opinion. ¶

- Among the evidences for the permissibility of killing prisoners from among the kuffar (disbelievers) is what is narrated by al-Tabarani: "Ibn Abbas said: The Messenger of Allah (peace be upon him) ransomed the prisoners of Badr. The ransom for each of them was four thousand, and he killed (Uqbah ibn Abi Mu'ayt) before the ransom. Ali ibn Abi Talib stood up to him and killed him sabran (by keeping him restrained)." ¶

"From Ibn Abbas, who said: On the day of Badr, the Messenger of Allah (peace be upon him) killed three people sabran. He killed al-Nadr ibn al-Harith of Banu Abd al-Dar, he killed Tu'aymah ibn Adi of Banu Nawfal, and he killed Uqbah ibn Abi Mu'ayt." ¶

- Also, it is mentioned in Sunan al-Tirmidhi, from Abdullah ibn Mas'ud, that the Prophet (peace be upon him) said—regarding the prisoners of Badr from among the mushrikin (polytheists): 'None of them shall escape except by paying a ransom or being beheaded!' ¶

This hadith indicates that killing prisoners is a legitimate ruling regarding all those who are captured from among the kuffar, and it is not limited—as some claim—only to special cases involving those who have displayed severe hostility and grave harm toward Islam and the Muslims, such as those we label today as 'war criminals.' For not all of the prisoners of Badr from among the mushrikin were of this description. ¶

Furthermore, as previously stated, the ruling regarding prisoners is fundamentally tied to maslaha (public interest). If the interest dictates that they should not be killed, then it is not permissible in such a case to order their execution. Moreover, it is possible to reach an agreement to refrain from killing prisoners through treaties and agreements with other states regarding this issue. Thus, if the Islamic State is bound by a treaty with other states not to kill prisoners... ¶

In this situation, it is not permissible to breach that treaty as long as the other parties remain committed to fulfilling it, as previously explained in the discussion on treaties. In summary: Shariah evidence permits the killing of prisoners as one of the legitimate options for sentencing them, unless public interest (maslaha) dictates otherwise, or the Muslims are bound by a treaty that obligates them not to kill prisoners. We now move to the fourth ruling regarding prisoners, which is: 4 - Enslavement (Istirqaq): The ruling of enslaving prisoners means imposing slavery upon them—that is, they are made slaves, and subsequently, the same rulings applied to owned persons are applied to them, such as distribution, sale, manumission, and so forth, as is done with captured women and children. This ruling regarding the permissibility of enslaving prisoners, when public interest requires it, is the position held by the majority of the Hanafi, Maliki, Shafi'i, and Hanbali schools of thought (1). We have previously mentioned that some jurists hold the view that the only rulings regarding a prisoner are manumission (mann) or ransom (fida'). Among them are al-Hasan, Ata, and Sa'id ibn Jubayr (2). We have clarified elsewhere that the verse 'Then either favor [afterward] or ransom [them]' (Quran 47:4) does not restrict the ruling on a prisoner to these two options alone, due to other evidences that added to the rulings of manumission and ransom other rulings such as execution and enslavement. As for the evidence regarding the permissibility of enslaving adult male prisoners, it is the consensus (ijma') of the Companions. It is stated in Bidayat al-Mujtahid, in the context of discussing prisoners: 'The Companions reached a consensus after him [the Prophet ﷺ] on the enslavement of the People of the Scripture, both their males and females' (3). ¶

In this context, the word 'dhikran' (males) applies to adult men as well as to minors who, along with women, are referred to as 'sabiy' (captives). This is a matter upon which there was consensus during the era of the Companions. As for the era of the Prophet (ﷺ), we have previously discussed that enslaving captives was a common practice during his time and in his seerah (biography), and that is not the subject of discussion here. Regarding the enslavement of adult male prisoners, Ibn al-Qayyim mentioned that it did not occur during the Prophet’s time. He states in 'Zad al-Ma'ad': 'It is established from him (ﷺ) regarding captives that he executed some, showed grace to some, ransomed some for wealth, exchanged some for Muslim captives, and enslaved some; however, it is well-known that he never enslaved an adult male.' ¶

Ibn al-Qayyim’s statement—that the Prophet (ﷺ) enslaved some captives while simultaneously stating he did not enslave an adult male—means that those he enslaved were only the children and women among the captives. ¶

However, Imam al-San'ani asserts otherwise when he says: 'Enslavement was carried out by him (ﷺ) against the people of Mecca, and then he emancipated them.' It seems that the ruling of enslaving the people of Mecca is merely an inference drawn from the Prophet’s (ﷺ) statement to them following the Conquest of Mecca, while standing at the door of the Kaaba: 'O assembly of Quraish! What do you think I am about to do with you? They replied: Good, you are a noble brother and the son of a noble brother! He said: Go, for you are the freed ones!' ¶

Yet this text, even if we assume its authenticity, does not necessarily mean that the 'freeing' of the people of Mecca refers to emancipating them from a state of slavery previously decreed upon them after they had fallen into the Prophet’s (ﷺ) custody, as is understood from al-San'ani’s words. ¶

It is apparent that after the Conquest of Makkah, if the disbelievers among them are considered to be under the ruling of captives, then the meaning of the Prophet's (ﷺ) statement to them, 'You are the freed ones' (Antum al-Tulaqa), is an act of grace (mann) towards them without the requirement of a ransom. Abu Ubaid, while enumerating the incidents of grace shown to captives during the time of the Prophet (ﷺ), states: 'Among the instances of grace is his conduct with the people of Makkah. We have already recounted the narrative of how its conquest took place; he did not cause harm to any of its people, neither in person nor in property. Then his herald proclaimed: 'Beware, do not finish off a wounded person, do not pursue one who is fleeing, do not kill a captive, and whoever shuts his door is safe.'' ¶

In any case, it appears there is no evidence to support the claim that the phrase 'You are the freed ones' implies that the Prophet (ﷺ) had subjected the people of Makkah to enslavement and subsequently granted them manumission from servitude thereafter. ¶

What remains is that the evidence for the enslavement of captives is the consensus (ijma) of the Companions. However, there is a hadith reported in Sahih al-Bukhari that indicates the legitimacy of gaining dominion over the lives (necks) of the disbelievers, and it is likely the evidence that served as the basis for the consensus reached during the era of the Companions regarding the permissibility of enslaving captives. ¶

It is stated in Sahih al-Bukhari, on the authority of al-Mughirah ibn Shu'bah, that he said to the agent of Khosrow (Kisra): 'Our Prophet, the Messenger of our Lord (ﷺ), commanded us to fight you until you worship Allah alone, or pay the Jizya. And our Prophet informed us of the message of our Lord that whoever among us is killed shall go to Paradise, the likes of which he has never seen, and whoever among us remains shall become the master of your necks (i.e., take you as captives)!' ¶

What is meant by 'milk al-riqab' (ownership of necks/persons) here is the enslavement of those among the ahl al-harb (people of war) who were not killed during the fighting and subsequently fell into the captivity and control of the Muslims. ¶

While jurists have cited several evidences for the legitimacy of enslaving prisoners, we have not found them to be strong in their indication for the issue at hand, and thus there is no need to present them. Among these is what they understood from the words of the Almighty: "...until when you have slaughtered them, then bind them fast..." (Quran 47:4) – where 'bind them fast' (shadd al-wathaq) has been interpreted as enslavement. However, the apparent meaning of 'shadd al-wathaq' here, as it seems, is to secure a firm grip on those who fall into captivity from the ahl al-harb or those who surrender, so that they are not able to escape if the guarding becomes weak. Ibn al-Arabi says regarding this verse: "The meaning is: kill them, and when that occurs extensively and you have taken those who remain, bind them securely. Then, you may either show grace to them and release them without compensation, or ransom them." ¶

However, many contemporary Islamic writers determine that the enslavement of prisoners during the era of the Sahaba was based solely on the principle of reciprocity (mu'amala bil-mithl). Regarding this, Sheikh Muhammad Abu Zahra states: "Why did slavery exist during the era of the Rashidun? ... The answer is that the texts of the Quran did not explicitly prohibit it, although they lean towards prohibition. The Prophet (ﷺ) did not establish it as a permanent practice, even if he did not explicitly forbid it. The matter remained subject to the law of reciprocity. If the enemies enslaved, it was permissible for the Muslims to enslave as a matter of reciprocity. And if they did not enslave, it was not permissible for the Muslims to do so." ¶

Similarly, Sayyid Sabiq states: "It is established that the Rightly-Guided Caliphs (may Allah be pleased with them) enslaved some prisoners based on the principle of reciprocity." ¶

I say: We mentioned in a previous discussion regarding the enslavement of captives (al-saby) that there is no evidence to link the legitimacy of enslavement to the principle of reciprocity. ¶

In any case, the enslavement of prisoners is not a mandatory ruling in this matter; rather, it is one of the legitimate options available. When the public interest (maslahah) lies in not resorting to the option of enslavement when judging prisoners, it is not permissible for the authority in such a case to order their enslavement merely out of desire, as previously established. If Islamic thinkers believe that the enslavement of prisoners in our current era serves no interest, then Islam rules for its lack of legitimacy based on this very foundation—that is, the basis of maslahah, which jurists have made the criterion for choosing between the various rulings brought by Islam regarding prisoners. There is no need, thereafter, to strain to invalidate the legitimacy of slavery from its roots, as long as we can reach the desired objective through a legitimate path that is beyond reproach. ¶

Furthermore, it is possible—as we have pointed out before—to reach the prohibition of slavery by the ruling of Islam through another legitimate path, which is for the Islamic State to reach an agreement with other states to refrain from the enslavement of prisoners. Thus, slavery becomes forbidden in such a case as long as the agreement remains intact and is not subject to anything that would annul it from a Shariah perspective. ¶

Now, we proceed to the final ruling regarding prisoners... ¶

5 - The Pact of Protection (Aqd al-Dhimmah): Providing 'Aqd al-Dhimmah' to prisoners from the hostile disbelievers (kuffar ahl al-harb) means making them citizens of the state. ¶

Islamic, meaning they become part of the Ahl al-Dhimmah (protected people) who are subjects of the state, just like the Muslims within it. They enjoy the same rights as Muslims and bear the same obligations as Muslims. ¶

Furthermore, the legitimacy of concluding the dhimmah contract for non-Muslims among enemy captives is a matter upon which the schools of jurisprudence have reached a consensus, as follows: ¶

- In Tanwir al-Absar and its commentary Al-Durr al-Mukhtar (from the Hanafi texts), regarding what an Imam is entitled to do with captives, it states: "He may kill the captives if they do not convert to Islam, or enslave them, or set them free as dhimmis under our protection..."(1). ¶

- In Qawanin al-Ahkam al-Shar'iyya (from the Maliki texts), it is stated in this regard: "As for the men, the Imam is given a choice among five options: killing, granting favor (man), ransom, jizya, and enslavement; he acts upon that which is most beneficial"(2). The meaning of his statement (jizya) is concluding a dhimmah contract with the male captives, which naturally entails the payment of jizya and compliance with the Islamic rulings they are obligated to follow. ¶

- In Al-Muhadhdhab (from the Shafi'i texts), it is stated: "The Imam does not choose among killing, enslaving, granting favor, or ransom for a captive except that which holds benefit for Islam and the Muslims, because he considers their interests [i.e., he observes their welfare]. Thus, he does not act except in a way that serves them. If the captive offers jizya and requests a dhimmah contract, and he is of those for whom a dhimmah contract is permissible, there are two views: One is that it is mandatory to accept it, just as it is mandatory if offered while not in captivity... The second is that it is not mandatory, because it nullifies the established options of killing, enslavement, favor, and ransom"(3). In Mughni al-Muhtaj: "There is no disagreement regarding the permissibility of accepting it from him. The two views only pertain to the obligation. Al-Shamil(4) states: If he offers jizya, it becomes prohibited to kill him, and the Imam is given a choice..." ¶

The Imam has the discretion in matters other than execution, such as if they embrace Islam, which Al-Rafi'i validated in the 'Chapter of Jizya' (1). ¶

Ibn Qudamah of the Hanbali school stated in 'Al-Mughni': 'If the captives from the People of the Scripture ask for their release in exchange for paying the Jizya, it is not permitted regarding their women and children, because they have become spoils of war upon their capture. As for the men, this is permissible, and the Imam's discretion regarding them does not cease. The Shafi'i scholars said: Their execution is forbidden, just as it would be if they were to embrace Islam' (2). ¶

In summary: ¶

The contract of Dhimma for captives is either a right belonging to the authority (Imam) to exercise at his discretion based on public interest (Maslaha), as held by the Hanafis, Malikis, and Hanbalis; or it is a right belonging to the enemy captives themselves to request, in which case their execution becomes forbidden, as held by the Shafi'is, as previously stated. ¶

Regarding the rationale for the permissibility of this ruling for captives, it has been said: 'If it is permissible to show grace (Mann) to them without compensation, or with a one-time payment, then it is even more appropriate to do so in exchange for a payment taken annually' (3). This is also evidenced by the actions of Umar ibn al-Khattab (may Allah be pleased with him) regarding the belligerents (ahl al-harb) who fell under the status of captives in lands conquered by force during his reign. He left them free and designated them as People of Dhimma, paying Jizya for themselves and Kharaj on the agricultural lands under their possession (4). ¶

Abu Yusuf stated in 'Kitab al-Kharaj': 'As for the villages, lands, cities, their inhabitants, and what is within them—the Imam has the choice: if he wishes, he may leave them in their lands, homes, and dwellings, confirm their property for them, and impose upon them Jizya and Kharaj' (5). ¶

Thus, we conclude our discussion on this topic and move to the second matter. ¶

The Second Topic: Rulings Regarding the Enemy’s Surrender ¶

In this topic, we shall discuss two issues: (A) Is it permissible to kill the enemy if they surrender during battle and submit themselves for captivity? (B) Regarding the enemy’s army, or the 'ahl al-harb' (people of war) in general, who are resisting from within their fortresses or by their strength—what is the ruling if they surrender to the Muslims unconditionally? ¶

(A) Is it permissible to kill the enemy if they surrender during battle and submit themselves for captivity? In answering this question, we state that there are several situations: First: If an individual from the enemy forces surrenders during the war—that is, submits himself for captivity—and the Muslims have not yet reached the stage of 'ithkhan' (inflicting heavy casualties and subduing the enemy’s ranks), he should be killed. This is because the time before 'ithkhan' is the time for killing, not for taking prisoners, provided that the situation naturally necessitates inflicting heavy casualties upon the enemy, in accordance with the saying of the Almighty: "It is not for a Prophet to have captives until he has inflicted a great massacre [athkhana] upon the earth." Al-Shawkani says regarding this verse: "It is not for a Prophet to have captives until he exerts himself in killing the disbelievers and performs a great deal of it." ¶

Hence, Sa’d ibn Mu’adh (may Allah be pleased with him) disliked the action of the Companions at the Battle of Badr in their haste to take the polytheists captive, as the defeat was already evident, but before they had sufficiently weakened the enemy through heavy slaughter (ithkhan). ¶

It is narrated in the Sirah of Ibn Hisham: “The Messenger of Allah ﷺ said to him, ‘By Allah, O Sa’d, it seems you dislike what these people are doing?’ He replied, ‘Yes, by Allah, O Messenger of Allah. This was the first battle that Allah ordained against the people of Shirk, so causing heavy slaughter among the people of Shirk was more beloved to me than preserving the lives of men.’ (1) ¶

Following this, the verse was revealed: ‘It is not for a prophet to have captives until he has inflicted a great massacre [upon Allah's enemies] in the land...’ (2) ¶

Therefore, one should not take captives before inflicting sufficient defeat upon the enemy, as previously mentioned. This applies equally whether they are taken by force or if they surrender for captivity. This is evidenced by the action of the Ansar at the Battle of Badr in killing Umayyah ibn Khalaf and his son ‘Ali, even though they had surrendered for captivity. ¶

It is narrated in the Sirah of Ibn Hisham: ‘From Abd al-Rahman ibn ‘Awf, he said: Umayyah ibn Khalaf was a friend of mine in Mecca... When the day of Badr came, I passed by him while he was standing with his son, ‘Ali ibn Umayyah, holding his hand, and I had some coats of mail (3) that I had taken as spoils of war. When he saw me, he said: ...Do you have any use for me? I am better for you than these coats of mail you have! He said: I said: Yes... So I threw the coats of mail from my hands, and took his hand and the hand of his son... By Allah, I was leading them when Bilal saw him with me! He was the one who used to torture Bilal in Mecca to force him to abandon Islam, taking him out to the scorching sand (4) of Mecca when it became hot, laying him on his back, then ordering a great rock to be placed on his chest, then saying: You will remain like this, or you will forsake the religion of Muhammad! Bilal would say: Ahad, Ahad (One, One) (5). He said: When Bilal saw the head of disbelief, Umayyah ibn Khalaf, he shouted: If he survives, then I shall not survive! I said: O Bilal! My captive?! He said: If he survives, then I shall not survive! Then he cried out at the top of his voice.’” ¶

He raised his voice: 'O Helpers of Allah! This is the head of disbelief (Umayyah ibn Khalaf); may I not be saved if he is saved!' So they surrounded us... I said to him: 'Save yourself, for there is no salvation for you! By Allah, I can be of no help to you.' The narrator said: 'They struck them both with their swords until they finished them off.' (2) ¶

In Sahih al-Bukhari, regarding this same story, (Abdur-Rahman ibn Awf) says: '...A group of the Ansar went out with him [i.e., with Bilal] on our trail. When I feared they would catch us, I left his son behind to distract them. They killed him, but still refused [to stop] until they pursued us! [Umayyah] was a heavy man, and when they caught up to us, I said to him: 'Sit!' So he sat, and I threw myself over him to protect him, but they struck him with their swords from beneath me until they killed him, and one of them struck my leg with his sword.' (4) ¶

I say: The story of the surrender of (Umayyah ibn Khalaf) and his son, and their death at the hands of the Ansar—without them being taken as prisoners—indicates, among other things, that if an individual enemy soldier surrenders during war before the Muslims have reached the stage of 'ithkhan' (overwhelming the enemy), then killing him in that situation is permissible, because it is a time of combat, not a time of capture, in accordance with the dictates of public interest (maslahah). ¶

Secondly: If the Muslims have reached the stage of 'ithkhan' against the enemy, and then one of them surrenders and offers himself for capture, it is still permissible for a Muslim to kill him rather than take him prisoner. This is because, until he is actually taken into custody, he is not considered a captive; he remains a 'harbi' (enemy combatant), and the blood of a harbi is permissible to shed, even if he surrenders. 'Because immunity from killing is only established through aman (a pledge of security) or through iman (faith),' as stated in Sharh al-Siyar al-Kabir (5). Therefore, surrender does not protect one's life because aman has not been established for him, and consequently, killing him remains legitimate. ¶

Thirdly: As for the situation where an enemy who has surrendered is taken captive and the status of 'prisoner' (asir) is established, is it permissible in this state for the Muslim fighters to kill him before the Imam or the authority makes a ruling regarding him? ¶

- Imam al-Shafi'i says regarding the issue of a captive and his killing: 'If a man kills a captive before reaching the Imam, or after, while in the Abode of War (dar al-harb), or after departing from it, without the Imam's order, he has committed an evil act...' (1) ¶

- In 'Al-Siyar al-Kabir' and its commentary, it states: 'Any Muslim who kills a captive before he is handed over, sold, or divided, bears no liability; because he has shed blood that was permissible, he is like someone who kills an apostate or someone sentenced to rajm (stoning). However, it is disliked (makruh) for him to do so; for if the captive belongs to another, he forfeits the owner's possession of him through the killing. This is forbidden by the hadith of Jabir (may Allah be pleased with him) that the Prophet (ﷺ) said: "Let no one of you take the captive of his companion if he captured him before him, then kill him..."' (2) ¶

- 'And if he is the one who captured him, he is still acting prematurely (iftiyat) upon the Imam's opinion by killing him, nullifying the choice inherent to the Imam. This is disliked... unless the captive attacks him and intends to escape from his grasp, making it impossible to bring him to the Imam; in that case, there is no harm in killing him. More than one of the Sahaba have done this' (4). ¶

Ibn Qudamah says in 'Al-Mughni': 'Whoever captures a prisoner is not permitted to kill him until he brings him to the Imam, so that he may exercise his judgment regarding him; for he has become a captive, and the choice regarding him rests with the Imam' (5). ¶

This is the summary of the conclusion on this issue: ¶

As for those of the enemies who surrender and are captured—meaning, the status of a prisoner of war (asir) is established for them—the matter is left to the discretion of the authority. Therefore, it is not permissible to execute them before issuing one of the rulings previously explained, unless military necessity dictates their execution prior to that. ¶

With this, we conclude this issue and move to the second issue. ¶

B - The enemy army, or the people of war (ahl al-harb) in general, who are resisting within their fortress or by their power—what is the ruling concerning them if they surrender to the Muslims without any restrictions or conditions? ¶

This issue is governed by the incident of Banu Qurayza after the Battle of the Trench (al-Ahzab). When they breached their treaty with the Prophet (peace be upon him) while he was occupied fighting the Quraysh and their allies, they effectively became people of war. Therefore, when the Prophet (peace be upon him) finished the Battle of the Trench (or al-Ahzab), he turned toward the territory of Banu Qurayza and besieged them for twenty-five nights. They were fortifying themselves within their citadel and possessed the strength to continue fighting. Then, Allah cast terror into their hearts, and they surrendered to the Prophet (peace be upon him) so that he might rule upon them, without setting any conditions. ¶

The Jews of Banu Qurayza were allies of the Aws from among the Ansar in the pre-Islamic period. It is stated in Sirat Ibn Hisham: 'The Aws stood up and said: O Messenger of Allah, they are our allies (mawālīnā), not the Khazraj's... When the Aws spoke to him about this, the Messenger of Allah (peace be upon him) said: O assembly of the Aws, will you not be pleased if a man from among yourselves rules upon them? They replied: Yes! He said: Then it is for Sa'd ibn Mu'adh [to decide]. Sa'd said: I rule that their men should be killed, their property distributed, and their children and women taken captive.' ¶

It is stated in Sahih al-Bukhari and Sahih Muslim that the Prophet (peace be upon him) said in affirmation of the judgment passed by Sa'd: 'You have judged them with the judgment of Allah, the Almighty.' ¶

In conclusion, those who have surrendered to the Muslims are to be treated according to the rules governing prisoners of war. ¶

upon them. We have known before that there are five options regarding the judgment of male prisoners: showing them favor (releasing them), ransoming them, executing them, enslaving them, or entering into a treaty of protection (dhimma) with them, making them citizens of the Islamic state. This is based on the details provided by the jurists, provided that the basis for selecting a particular ruling among these is 'maslaha' (public interest), not mere whim or desire. It is clear that the choice of Sa'd ibn Mu'adh (may Allah be pleased with him) to judge the Jews of Banu Qurayza by executing their men and enslaving their women and children—rather than opting for the other permissible rulings—was because these Jews had a treaty of peace and good neighborliness with the Prophet (peace be upon him) and the Muslims. They breached this treaty during the darkest circumstances the Muslims were facing, demonstrated treachery and betrayal, and resolved to join the Quraysh and their allies from the 'Ahzab' (Confederates) in surrounding Medina and eliminating the Muslims within it. Thus, the just judgment that the interest demanded in this situation, according to the assessment of Sa'd, was the ruling he issued against them, which also happened to align with the judgment of heaven, as the Prophet (peace be upon him) reported. These are excerpts from the books of the schools of jurisprudence on this issue—the issue of the 'ahl al-harb' (people of war) surrendering to the Muslims without terms or conditions, so that they may be judged according to the rulings of the Shariah. It is stated in 'Al-Siyar al-Kabir' and its commentary, among the books of the Hanafi school: 'If the people of a fortress surrender upon the judgment of a man from the Muslims, it is permissible, due to the saying of the Prophet (peace be upon him): "But bring them down upon your judgment, then judge them as you wish"(1). Also, because the reports differ regarding the surrender of Banu Qurayza; some historians mentioned they initially surrendered to the judgment of Sa'd ibn Mu'adh (may Allah be pleased with him)... while the most famous account is that they surrendered to the judgment of the Messenger of Allah (peace be upon him), and then the Messenger of Allah (peace be upon him) entrusted the judgment regarding them to Sa'd ibn Mu'adh with their consent. Therefore, the judgment of the appointed arbiter that the combatants be killed, or that they be made dhimmis, or that they be taken as fay' (spoils of war)—is all permissible and binding, citing the ruling of Sa'd as evidence.' He then adds: 'It is mentioned that Umar (may Allah be pleased with him) wrote to the commanders of the armies: Kill those...' (1) The wording in Sunan Abi Dawud is: 'But bring them down upon your judgment, then decide regarding them as you wish!' No. (2612) Vol. 3/51. Al-Albani said: Sahih. See: (Sahih Sunan Abi Dawud by Al-Albani: No. (2276) Vol. 2/495). In Sahih Muslim, from the hadith of Buraydah, the wording is: 'But bring them down upon your judgment.' No. (1731) Vol. 3/1358. ¶