Chapter 80

Third Section: What is the obligation of Muslims towards their captives—whether they are Muslims or Dhimmis—if they fall into the hands of the enemy? ¶

In answering this question, we shall first present some Shariah texts regarding the liberation of captives from Islamic lands if they fall into the hands of the enemy. Second, we will present the opinions of the schools of jurisprudence (Madhahib) regarding the legal ruling on this issue. Third, we will state our preferred position in this regard. ¶

First: Some Shariah texts regarding the liberation of captives from Islamic lands if they fall into the hands of the enemy. ¶

1. Al-Bukhari records in his Sahih, under the heading 'Chapter: The Liberation (Fakak) of the Captive': 'On the authority of Abu Musa al-Ash'ari, may Allah be pleased with him, who said: The Messenger of Allah (ﷺ) said: Free the captive (al-'ani), feed the hungry, and visit the sick.' ¶

It is stated in Fath al-Bari: 'His statement: Chapter: The Liberation of the Captive, means: [rescuing him] from the hands of the enemy with wealth or otherwise. Al-Fakak means: release... Ibn Battal said: Releasing the captive is a communal obligation (Fard al-Kifayah), and this is the position of the majority. Ishaq ibn Rahwayh said: [It is the responsibility] of the Bayt al-Mal (Public Treasury).' ¶

I say: It is most likely that what is meant by 'al-'ani'—that is, the captive—in this text is one who falls into captivity. ¶

The 'enemy' from the Islamic army or the inhabitants of Islamic lands in general does not include, in this context, prisoners of war from the enemy side who fall into Muslim hands. Regarding these disbelieving prisoners who are from the 'Ahl al-Harb' (people of war), the Shariah provides five options, as previously discussed. Furthermore, the requirement for a prisoner to be ransomed is not restricted to them being Muslim; therefore, this applies to a 'Dhimmi' prisoner just as it applies to a Muslim prisoner. ¶

2. It is recorded in Sahih Muslim and Sunan Abi Dawood, regarding the ransoming of Muslim prisoners from the hands of the enemy, on the authority of Salamah bin al-Akwa’, who said: We fought (the tribe of) Fazara, and Abu Bakr was our commander, appointed over us by the Messenger of Allah (ﷺ). When we were a short distance from the water, Abu Bakr ordered us to camp, then launched a sudden raid. He reached the water, killed those who were there, and took captives. I saw a group of people, among them women and children, and I feared they would reach the mountain before me, so I shot an arrow between them and the mountain. When they saw the arrow, they stopped! I brought them, driving them along. Among them was a woman from (the tribe of) Fazara wearing a leather wrap (al-Qash' is the hide/tanned skin), and with her was her daughter, one of the most beautiful of the Arabs. I drove them until I brought them to Abu Bakr, who gifted me the daughter as a 'nafal' (bounty/prize). We arrived in Madinah, and I had not yet touched her. Then the Messenger of Allah (ﷺ) met me in the market and said: 'O Salamah, give me the woman.' I said: 'O Messenger of Allah, by Allah, I am charmed by her! And I have not yet touched her.' Then the Messenger of Allah (ﷺ) met me again (and I repeated the same). So the Messenger of Allah (ﷺ) sent her to the people of Makkah and exchanged her for a number of Muslims who had been held captive in Makkah. ¶

Imam al-Nawawi says regarding the fiqh of this hadith: 'It contains the permissibility of prisoner exchange (mufadah), and the permissibility of exchanging male captives for female disbelievers'(1). ¶

Furthermore, the incident of the man from Banu 'Uqayl who was captured by the Companions has already been mentioned—as found in Sahih Muslim—in which the Messenger of Allah (ﷺ) exchanged him for two of the Companions who had been captured by the tribe of Thaqif(2). ¶

Second: The positions of the schools of jurisprudence (Madhahib) regarding the liberation of captives from Islamic lands held by the enemy: ¶

A- In 'Al-Siyar al-Kabir' and its commentary, from the Hanafite books, it is stated: 'There is no harm in exchanging Muslim captives for polytheist captives who are in the hands of the Muslims, whether men or women. This is the opinion of Abu Yusuf and Muhammad, and it is the more prominent of the two narrations from Abu Hanifa (may Allah be pleased with him). In another narration, he said: It is not permissible to exchange a captive for a captive. The reasoning for the prominent narration is: Liberating Muslim captives from the hands of the polytheists is mandatory, and this cannot be achieved except through exchange. There is nothing greater in this than abstaining from killing the polytheist captives, which is permissible for the benefit of the Muslims... The reasoning for the other narration from Abu Hanifa (may Allah have mercy on him) is the Almighty’s saying: "Kill the polytheists wherever you find them"(3). The act of exchange involves abstaining from the killing which is obligatory, and it is not permissible to abandon an obligation while one is capable of fulfilling it'(4). ¶

B- In 'Qawanin al-Ahkam al-Shar'iyya', from the Maliki books, regarding the liberation of Muslims from captivity, it states: 'It is mandatory to rescue them from the hands of the disbelievers through combat. If the Muslims are unable to do so, it becomes obligatory upon them to pay a ransom with wealth. Therefore, a wealthy person must ransom himself, and the Imam must ransom the poor from the public treasury (Bayt al-Mal). If there is still a shortfall, it becomes binding upon all the wealth of the Muslims, even if it exhausts it entirely!'(5). ¶

In 'Al-Sharh al-Kabir' by Al-Dardir, it is stated: 'It is permissible to ransom Muslim captives for infidel captives in our hands who are combatants, meaning those whose vocation is fighting, if they (the people of war) do not agree otherwise, because their fighting us is anticipated, while the release of the captive is certain... And it is permissible, according to the best opinion, to ransom them with wine and swine. The procedure for this is that the Imam orders the Dhimmi (protected non-Muslim subjects) to hand those items over to the enemy, and deduct their value from the Jizyah due from them.' (1) ¶

Furthermore, Imam Al-Qurtubi, from the Maliki school, expresses his pain regarding the negligence of the Muslims of his era in rescuing captives from the hands of the disbelievers, due to the conflicts among the Muslims themselves and some seeking the support of the infidel enemy against their own Muslim brothers. In this regard, he states: ¶

'We support one another! Would that it were for the sake of the Muslims! But no, it is for the sake of the disbelievers! We have abandoned our brothers, humiliated and subjugated, with the laws of the polytheists being applied to them. There is no power nor strength except in Allah, the Most High, the Almighty! Our scholars have said: Ransoming captives is obligatory, even if not a single dirham remains. Ibn Khuwayz Mandad said... Authentic reports from the Prophet (PBUH) confirm that he ransomed captives and ordered their release; the practice of the Muslims has been consistent on this, and consensus has been established. Ransoming captives is obligatory from the Bayt al-Mal (public treasury); if there are no funds, it is a communal obligation (fard kifayah) upon all Muslims, and whoever among them performs it relieves the rest of the obligation.' (2)... This is the position of the Malikis. ¶

C - As for the Shafi'i school, there is a difference of opinion regarding the ruling on ransoming captives from the enemy, between recommendation (istihbab) and obligation (wujub). It is stated in 'Mughni al-Muhtaj': 'Al-Bulqini interpreted the recommendation of releasing captives as applying when they are not being tortured; if they are being tortured, it becomes obligatory. Al-Ghazzi interpreted the recommendation as applying to individuals, and the obligation as applying to the Imam, and this is more appropriate.' (3) ¶

D - In 'Al-Mughni' by Ibn Qudamah, from the Hanbali books, it is stated: 'It is obligatory to ransom Muslim captives, if possible. This is the opinion of Umar ibn Abd al-Aziz and Malik.' ¶

And (Ishaq) . . . (1). Regarding the ransoming of the prisoners of Ahl al-Dhimmah if they fall into the hands of the enemy, he says: ¶

"The apparent meaning of the words of (al-Khiraqi) is that it is obligatory to ransom them, whether they were aiding us or not. This is the opinion of (Umar ibn Abd al-Aziz) and (al-Layth); because we have committed ourselves to protecting them through their treaty and by taking their jizya—thus, fighting on their behalf became incumbent upon us. So, if we are unable to do that, but it is possible for us to secure their release, it becomes obligatory upon us . . ." (2). ¶

Furthermore, in the (Risala al-Qubrusiyya) by Imam (Ibn Taymiyyah), regarding the methodology of Muslims in treating the prisoners of Ahl al-Dhimmah the same as Muslim prisoners in terms of striving for the release of all of them from captivity, the following is stated: ¶

"The Christians all know that when I spoke to the Tatars regarding the release of the prisoners, and (Ghazan) released them . . . he allowed the release of the Muslims but said to me: 'However, we have Christians with us whom we captured from (Jerusalem), and they will not be released!' I said to him: 'Rather, all the Jews and Christians you have with you who are our Ahl al-Dhimmah, we shall ransom them, and we will not leave any prisoner behind, neither from the people of the faith (Muslims) nor from the Ahl al-Dhimmah!' And we secured the release of as many Christians as Allah willed . . .!" (3). ¶

Regarding what (Ibn Qudamah) indicated—that (Umar ibn Abd al-Aziz) held the view that ransoming prisoners is obligatory—there is evidence in Sunan Sa'id ibn Mansur that supports this. He said: ¶

"It is narrated from Umar ibn Abd al-Aziz that he said: 'If a Roman takes a Muslim prisoner, it is not permissible for the Muslims to abandon him to disbelief, and they must ransom him as much as they are able to . . .'" (4). It also states in this Sunan: ¶

"It is narrated from (Abd al-Rahman ibn Abi Amrah) that he said: 'When (Umar ibn Abd al-Aziz) sent him to ransom the Muslim prisoners from Constantinople, I said to him: What is your view, O Commander of the Believers, if they refuse to accept a ransom for a man..." ¶

['For one man? What should I do?' Umar said: 'Increase the number!' I said: 'What if they refuse to accept one for two?' He said: 'Then give them three!' I said: 'And if they insist on four?' He said: 'Then give them whatever they ask for every single Muslim!! For by Allah, a single Muslim man is dearer to me than every polytheist! Indeed, whenever you ransom a Muslim, you have triumphed! You are, in effect, purchasing Islam!' Then, Umar's envoy stated regarding the ransoming of captives: 'I reached an agreement with the Great One of Rome to exchange every single Muslim for two Romans.' Ismail (Ibn Ayyash, one of the narrators of the report) added that some of our companions narrated from Abd al-Rahman that he asked Umar ibn Abd al-Aziz about the Dhimmis (non-Muslim citizens), and he replied: 'Ransom them just as you would ransom others.' ¶

Thirdly: Consequently, it is clear from the above that ransoming captives from Islamic lands—whether they are Muslims or Dhimmis—is obligatory upon the Muslims. If this can be achieved through a prisoner exchange between both sides, that is ideal, as the Messenger of Allah (ﷺ) performed such exchanges. If such an exchange is not possible, for instance, if the Muslims lack captives to offer or due to any other reason, it becomes obligatory upon the Muslims to ransom the captives with wealth or through any other legitimate means. This is supported by the general implication of the Prophet's (ﷺ) saying, 'Free the captive.' He did not restrict this required liberation to a specific method, which—on the surface—indicates the legitimacy of ransoming them with wealth, just as with prisoner exchanges. ¶

Furthermore, when this ransoming is done through wealth: if the Bayt al-Mal (State Treasury) contains sufficient funds, it should be paid from there, because the Bayt al-Mal is designated for meeting the needs of the Muslims in accordance with its established legal provisions. If the Bayt al-Mal lacks sufficient funds, it becomes a communal obligation (fard kifaya) upon the Muslims to cover the necessary expenses to free the captives. This is because the demand placed upon the collective of Muslims is not in their individual capacity, but in their collective capacity. As in the aforementioned text, 'Free the captive,' the obligation falls upon those who have the capacity to perform the task. In our current scenario, these are the wealthy, and thus, sufficient levies/taxes shall be imposed upon them to fulfill this need and perform this communal duty.] ¶

It should be noted that the ruling regarding the ransoming of captives from the Ahl al-Dhimmah (protected non-Muslim subjects) does not differ from the ruling regarding the ransoming of Muslim captives. This is in accordance with the terms of the covenant of Dhimmah, which dictates that they shall have the same rights as Muslims, and they shall bear the same responsibilities as Muslims. Ali ibn Abi Talib (may Allah be pleased with him) said: 'They only paid the Jizya so that their blood would be like our blood, and their wealth would be like our wealth.' This is the position we deem most preponderant regarding the issue of ransoming captives from Islamic lands when they fall into the hands of the enemy. With this, we conclude the current topic, and with its conclusion, we reach the end of this research. Let us now turn to the final discussion of this chapter, with the help and guidance of Allah. ¶

Similarly, Allamah Ibn Kathir has also supported this in his Tafsir, and his reasoning is likewise based on the principle that whatever Allah Almighty has left 'unspecified' (mujmal), we should also leave it as it is. (Tafsir Ibn Kathir, p. 9) ¶

On the other hand, there exists a different opinion regarding this same verse, which Allamah Qurtubi has mentioned in his Tafsir, 'Al-Jami' li-Ahkam al-Qur'an'. He states: ¶

"It is the opinion of many Companions (Sahaba) and Successors (Tabi'in) that it is obligatory upon us to believe in all those things that Allah Almighty has revealed to His Prophet (peace be upon him), but we have not been tasked with knowing their details (which remain in a summarized form). Therefore, we should acknowledge them and not pursue what Allah has concealed from us." (Tafsir Qurtubi, Vol. 1, p. 215) ¶

Summary: From all the aforementioned opinions, it can be concluded that where there appears to be a contradiction in the meaning of a verse, it is absolutely essential to keep the classification of 'Muhkam' (clear/decisive) and 'Mutashabih' (ambiguous/allegorical) in view. The rule established by the scholars of Usul (principles of jurisprudence) in this regard is: "Adhering to the apparent injunctions of the Shariah, and exercising restraint (tawaqquf) in those matters where Allah Almighty has reserved the knowledge to Himself, is the path of moderation." ¶

Section Three: Hostages, are they different from prisoners of war? ¶

In this research, we will address the following: First: What is meant by hostages in this research? Second: What is the Shariah ruling regarding these hostages? ¶

First: What is meant by hostages in this research? A - First point: Hostages in modern convention. B - Second point: Hostages in Islamic Fiqh. ¶

1 - First point: Hostages in modern convention. In the political sphere, the term 'hostages' is applied to several categories of people who are detained under this status by the parties responsible for holding them captive. These include: 1 - Those abducted from among the nationals of the country to which the perpetrators belong, with the intent of keeping the abductees as hostages to pressure the entities troubled by the abduction, in order to force them into negotiations with the abductors to meet their demands... Sometimes the abduction is merely for the purpose of inciting strife, problems, and crises for the government in power, with the aim of weakening or toppling it... among other purposes. 2 - Those abducted from among foreigners residing in the country as 'musta'minin' (those granted protection/asylum), whether they are members of the diplomatic corps, or are residing as visitors, tourists, merchants, or in any other capacity. ¶

who have contracted with the state or with the private sector... all of this is to reach specific objectives that the kidnappers seek from the state to which these kidnapped individuals belong, or from those who are concerned about them... ¶

3 - Furthermore, the state itself, in which these foreigners reside, may prevent them from leaving the country without resorting to kidnapping or imprisoning them. It may take this measure against some of these foreigners, but not all of them, with the aim of exerting pressure on the states to which they belong in order to achieve certain goals that are important to the state that has detained them, holding them hostage until its demands are met... The state may label these detainees as 'guests' and deny the description of them as 'hostages.' Regardless, names do not change the realities of matters. ¶

4 - Among those who are referred to as 'hostages' are those foreigners kidnapped who are residing in countries other than those to which the kidnappers belong, whether they are in their own countries or in other countries. This applies whether they are from hostile states or from states that have a peace treaty with the kidnappers' state... all for the sake of exerting pressure on the states of the kidnapped, or the states from which they were kidnapped, with the goal of achieving certain demands. ¶

These people, and those like them, are who are called 'hostages' in modern parlance. We have discussed them in detail within the research where we talked about the method of kidnapping individuals belonging to hostile parties... and we mentioned there who among those people it is permissible to kidnap and consider as prisoners of war (ahl al-harb), such that one of the five rulings that can be applied to prisoners can be issued against them—and who cannot be kidnapped or considered prisoners of war. Therefore, there is no need to repeat the discussion that has already been researched regarding this issue (1). ¶

B - The Second Point: Hostages in Islamic Fiqh. Hostages (al-raha'in), or al-ruhuna, or al-rahn, in jurisprudential terminology are: those persons whom their state or their people hand over to those with whom they are concluding a treaty. ¶

(1) See: 'The Method of Kidnapping Directed Against Citizens of Hostile States and Holding Them Hostage,' Second Section of the Third Topic / Chapter 3 - Fifth Part - of this thesis. P. 1391 and onwards. ¶

Among the treaties that stipulate for both parties, or one of them, the provision of human hostages to the other party as a guarantee for fulfillment, is the condition that these hostages be returned to their people after the expiration of the treaty. It was customary among nations or tribes that entered into truces to cease hostilities to provide such hostages in the manner described. It is mentioned in the book 'Al-Amwal' by Abu Ubayd, with his chain of narration: 'The Romans made peace with Mu'awiyah on the condition that he would pay them a sum of money, and Mu'awiyah took hostages from them and placed them in Baalbek. Then the Romans committed treachery, but Mu'awiyah and the Muslims refused to hasten the killing of those hostages held in their custody. They released them and sought victory from God through that act [of keeping their word]. They said: Fulfilling a promise in response to treachery is better than treachery in response to treachery!' Thus, the term 'hostages' in this research refers to those designated by this term in Islamic legal terminology (Fiqh). ¶

Secondly: What is the Shariah ruling on these hostages? ¶

It appears that taking human hostages to guarantee the fulfillment of treaties between the Islamic state and other states or peoples was not common in Islamic history. Hence, we do not find legal sources focusing heavily on the subject of these hostages. The sources that discuss many of the issues related to this topic are primarily 'Al-Siyar al-Kabir' by Imam Muhammad ibn al-Hasan al-Shaybani and its 'Sharh' (commentary) by Imam al-Sarakhsi. It is true that this subject, according to its jurisprudential concept, is no longer applicable in modern times, as treaties between states no longer use human hostages as a method to guarantee fulfillment; however, it is necessary to shed light on an aspect of this ancient topic, as long as this... ¶

This treatise discusses jihad and its related aspects during the era of legislation and the time of the Companions, and subsequently in the present era in which we live. ¶

Since we addressed the issue of 'hostages' (al-raha'in) according to modern terminology when discussing the method of kidnapping individuals from hostile factions, it is therefore necessary for us to know something about the hostages who were known by this name in earlier times. ¶

Here, we will suffice with the following issues among those addressed in 'Al-Siyar al-Kabir' and its commentary regarding this subject: ¶

1. Is it permissible for the Islamic state to provide human hostages from among the Muslims to their enemies as part of a treaty? ¶

2. Is it permissible for the Islamic state to stipulate in a treaty with the enemies the taking of human hostages from them? And what is their fate if the enemy betrays the Muslims? ¶

3. What if the Muslims are compelled to give human hostages to the enemy in a treaty, then the term of the treaty expires, and the enemy refuses to hand over the hostages so as to prevent the Muslims from waging jihad on their front? ¶

4. What if the Muslims are compelled to give human hostages to the enemy in a treaty, and then the enemy threatens to kill the hostages if the Muslims proceed with certain legitimate actions that the enemy deems harmful to its interests? ¶

These are the most important issues that we have deemed necessary to raise in this context. Now, let us present, in brief, what is stated in 'Al-Siyar al-Kabir' and its commentary regarding the answers to these issues. ¶

1. Is it permissible for the Islamic state to provide human hostages from among the Muslims to the enemy as part of a treaty? ¶

It is stated in 'Al-Siyar al-Kabir' and its commentary: 'If the polytheists demand during a truce that we provide them with hostages from the men of the Muslims, provided that they provide a similar number of hostages from their own men—this is makruh (disliked). Muslims should not comply with them unless there is an absolute necessity, because they cannot be trusted with the lives of Muslims. It is apparent that...' ¶

their difference in creed drives them to kill them, and there is no restraint from the perspective of creed that prevents them from doing so. (1) ¶

He stated in another place: "And when the people of Islam and the people of war agree to a truce for a year... and they desire from one another that they be given hostages for that, on the condition that if either party commits treachery, then the blood of the hostages is lawful for the others! There is no harm in providing hostages for this, if the Muslim being taken as a hostage consents to it; because there is security that the Muslim hostage will not revert from Islam. The apparent situation is that they would not consent to this if they feared for their own lives..." (2) ¶

But what if no Muslim volunteers to be a hostage in the hands of the disbelievers? ¶

The aforementioned source says regarding this situation: ¶

"The Imam (leader) should not force any Muslim to do this, unless the polytheists possess severe power and the Muslims fear for their lives from them—in that case, there is no harm in compelling the hostage for this purpose, because it contains benefit for the general Muslim populace. Refusing this peace would mean a fear of destruction for the group of Muslims, and undertaking it removes this fear from the group of Muslims. Thus, this authority is established for the Imam, even if it entails fear for a specific group of Muslims, namely the hostages! This is based on the well-known principle: whoever is afflicted with two evils must choose the lighter of the two." (3) ¶

This is what is said in response to the issue of Muslims providing human hostages to the enemy, in accordance with a treaty concluded with them. Now we come to the second question: ¶

2 - Is it permissible for the Islamic state to stipulate in a treaty with the enemies the taking of human hostages from them? And what is their fate if the enemy commits treachery against the Muslims? ¶

The answer—as previously indicated—is that it is permissible for the Muslims to stipulate that the enemies provide human hostages from among them, in order to compel them to fulfill the treaty... Then, if they commit treachery... ¶

If the enemies break that treaty, it is still not permissible to kill the hostages who are in the hands of the Muslims. In the book 'Al-Amwal' by Abu 'Ubayd, it is stated: 'Al-Awza'i said similarly: The hostage shall not be killed due to their treachery,' meaning due to the treachery of their people among the belligerents (ahl al-harb). The evidence for this ruling is the consensus of the Companions. In 'Al-Siyar al-Kabir' and its commentary, it says: 'If they had stipulated in the original truce that if they committed treachery and killed the Muslims' hostages, then the blood of their hostages would be lawful for us, and then they killed our hostages, their blood would still not be lawful for us. This is based on the report that this incident occurred during the time of Mu'awiyah (may Allah be pleased with him), and he and the Muslims with him reached a consensus that the polytheists' hostages should not be killed because they are under our protection (musta'minun). Thus, their blood is not made lawful by a crime committed by others. The condition that was made contradicts the ruling of the Shariah, and is therefore void.' In another place regarding this issue, it says: 'If the polytheists commit treachery and kill the hostages, it is not permissible for the Muslims to kill the hostages they hold, nor to enslave them; because they were safe with us, so the rule of their protection is not invalidated by the treachery of the polytheists, due to the Almighty's saying: {And no bearer of burdens shall bear the burden of another}.' So, what is the fate of the enemy hostages held by Muslims in this situation? The mentioned source continues: 'But the Muslims will not allow them to return to their lands, and will make them dhimmis (protected subjects), because they consented to stay in our territory until our hostages were returned to us, and now that has become impossible! So they are permanently detained in our territory by their own consent. A disbeliever cannot reside in our territory permanently while persisting in their disbelief except through the jizya.' Imam al-Sarakhsi mentioned a historical incident regarding this issue, where a certain prince in the era of Abu Hanifa had, during a treaty, agreed with a group of belligerents to exchange hostages... then it happened that the belligerents killed the hostages. ¶

The Muslims held hostages, and the Amir (leader) turned to the scholars to ask them about the ruling on killing the disbelieving hostages in his custody—is it permissible? ¶

Al-Sarakhsi narrates this, saying: "He gathered the scholars of his time and asked them what he should do with his hostages. They said to him: 'You may kill them because of the condition they stipulated!' Abu Hanifa (may Allah have mercy on him) was present, but remained silent. ¶

The Amir said to him: 'Why do you not speak?' He replied: 'If they told you this based on their own opinion, they have erred; and if they said it based on your desires, they have deceived you! You have no right to subject any of them to killing or enslavement.' The Amir asked: 'Why not, when they stipulated it?' He replied: 'Because they stipulated against you what is not lawful, and you stipulated against them what is not lawful in Shariah. And every condition that is not in the Book of Allah is void. Allah the Almighty says: "No bearer of burdens shall bear the burden of another." The Amir responded harshly and said: 'I have never summoned you but you brought me what I dislike! Leave me!' They left. The next day, he gathered them again and said: 'It has become clear to me that what you said was correct! So what should we do with them?' He (Abu Hanifa) said: 'Ask the scholars!' He asked them, and they replied: 'We have no knowledge of that.' Then Abu Hanifa said: 'Jizyah should be imposed upon them.' The Amir asked: 'Why?' He replied: 'Because they stayed with you by their own consent until the return of the hostage. And that time has passed!' The Amir approved of his opinion, praised him, and sent him back with honor.'" ¶

- Al-Sarakhsi continues, saying: - ¶

"If it is said: If this condition is unlawful, then why was it said that there is no harm in giving hostages based on it? We say: Because the Muslims were in need of it. There is no loss of anything in the mere stipulation, nor is there the establishment of something that cannot be rectified, unlike the killing of the hostage based on that condition!" ¶

I (the author) say: It seems that the scholars who issued a fatwa for the killing of hostages acting on the condition—had the incident that occurred during the era of (Mu'awiyah), in which the Muslims reached a consensus on not killing hostages, reached them—it seems... ¶

They have interpreted this consensus as pertaining to the legality of not killing the hostage, not to the prohibition of killing them. However, the narration of Abu Ubaid regarding the incident: 'Muawiyah and the Muslims refused to deem the killing of those hostages in their hands permissible' — supports the Sahaba's prohibition of killing hostages, not merely an abstinence from killing them; for the meaning of their not deeming it permissible is that they did not find their killing to be halal (1). ¶

We now come to the third question: ¶

3 - What if the Muslims are compelled and provide human hostages to the enemy in a treaty, the treaty period ends, and the enemy refuses to release the hostages so as to prevent the Muslims from waging jihad on their front? ¶

It is stated in Al-Siyar al-Kabir and its commentary regarding this issue and its answer the following: 'If the period of truce expires and the polytheists say: If you fight us, we will kill your hostages, then there is no harm in fighting them... just as if they use Muslim children as human shields (tatarrus), there is no harm in fighting them. Likewise, if they hold Muslim captives and say: If you fight us, we will kill the captives, then there is no harm in fighting them for this reason. Similarly, if [the Imam] sends messengers to them for a need, with the messengers' consent or without it, and they imprison them and say to the Muslims: If you fight us, we will kill your messengers, then there is no harm in fighting them. This is because none of that constitutes a breach of promise (ikhfar) by the Imam toward a group of Muslims. It is merely an act of oppression that the polytheists commit against the Muslims. And due to the fear of that, fighting them does not become impossible for the Muslims (2).' ¶

In summary, this issue is governed by the principle of 'the disbelievers using Muslims as human shields' to prevent the Muslims from fighting them. We have already studied this issue and the shariah-based Ijtihadat therein in previous discussions. We now come to another question. ¶

4 - What if the Muslims are compelled and provide human hostages to the enemy in a certain treaty, and then the enemy threatens to kill the hostages if the Muslims proceed with certain legitimate matters that it views as harmful to its interests? ¶

(1) Furthermore, there is a narration from Ahmad ibn Hanbal regarding the permissibility of killing hostages from the kuffar of the belligerent state (ahl al-harb) if the people of war commit treachery and kill the Muslim hostages they hold. See: Al-Ahkam al-Sultaniyyah by al-Farra, p. 33. And see: Al-Ahkam al-Sultaniyyah by al-Mawardi, p. 15. (2) Sharh al-Siyar al-Kabir: 5/1759-1760. ¶

In the source we rely upon, regarding an example of lawful actions that Muslims might intend to undertake, which the harbi (belligerent) parties consider a threat to their interests, leading them to threaten to kill the hostages they hold if the Muslims proceed with their intent... it is stated in this context, and in response to it, the following: ¶

'If some cities of the mushrikeen (polytheists) seek dhimma (protection/covenant) from [the Muslims], and the enemy king dislikes this and says: If you do so, we shall kill your hostages! Or we shall enslave them! And if you do not do so, we shall return your hostages—then the Imam and the Muslims shall deliberate on this. If refraining from granting dhimma until they release their hostages is better for the Muslims, they shall refrain! And if accepting the dhimma from those who requested it is better, the Imam shall do so, for he is the guardian of the Muslims, and he shall choose that in which the benefit is more manifest. However, it is superior that he chooses that which involves the deliverance of the Muslims from the hands of the mushrikeen. Do you not see that if the people of a city among them requested dhimma, and the enemy king said: If you refuse them that, I will release your captives, and if you accept it from them, I will kill your captives—he shall choose that which is more beneficial for the Muslims. If the deliverance of the captives is better, he shall do that, and it is the worthier of the two options. And if accepting the dhimma from them is better, because he sees therein the strength of the Muslims through the might of those who requested the dhimma, then the Imam shall accept the dhimma from them and shall not pay heed to the side of the captives. Do you not see that if he were besieging a great city and was on the verge of conquering it, and the enemy king said to him: Depart, on the condition that we give you back the captives we hold—the Imam shall deliberate on this and shall do that which is better for the Muslims. The same applies to the aforementioned cases.' ¶

Thus, these are some of the issues related to hostages that were included in treaties concluded between the Muslims and the harbis in certain situations. ¶

Our purpose in addressing these, and in providing numerous citations regarding them—even though they no longer exist in modern times—is to gain insight into some of the situations and issues that used to arise concerning jihad, and concerning the relations of Muslims with others in general. However, this overview is not devoid of... ¶

The benefits we have presented regarding these issues relate to the subject of Jihad and the situations Muslims may encounter with their enemies in the modern era. ¶

Here, we conclude the third research section we have been engaged in. With its completion, we reach the end of the fifth chapter, which concludes the sixth part of this treatise, and which we dedicated to addressing the reasons for the cessation of hostilities in Islam. ¶

Yes, there remains a sixth reason for the cessation of hostilities: withdrawal from the battlefield and abandoning the arena of combat when the interest (Maslahah) necessitates it. However, we did not find a need to devote a special chapter to this reason, as this issue was covered in previous discussions when speaking about fleeing from the battlefield, lifting the siege of Ta'if, and Khalid ibn al-Walid's withdrawal with the army from the Battle of Mu'tah. For this reason, there is no need to prolong this chapter on what has already been discussed. ¶

We now turn, with the help and guidance of Allah, to the seventh and final part of this treatise. ¶

Footnote: As for what relates to the subject of 'hostages' in modern custom—it was pointed out in the first point of this research that we addressed this topic under the section 'The method of kidnapping directed against citizens of hostile states and taking them as hostages.' We established in that section that those hostages who are permissible to kidnap or capture are treated in terms of judgment like prisoners of war. That is, it is permissible to pass judgment on them with one of the five options—depending on the interest—either execution, enslavement, granting grace (mann), or ransom. Or, the Imam may grant them the citizenship of the Islamic State! As for those who are not permissible to kidnap or capture... taking them as a hostage—according to modern custom—is an illicit act... as is clear from the detailed rulings on this subject when discussing the types of persons who are subjected to kidnapping and being taken as hostages, in the referenced section. See page 1792 and onwards. ¶

The purpose of this chapter is to present some aspects related to Jihad in the modern era in which we live. Whether these aspects relate to Jihad from a theoretical perspective—meaning its definition and the ideas revolving around it in the writings of Muslims and non-Muslims—or whether they relate to the practical reality of Jihad, meaning matters connected to combat activities in the actual state of war. ¶

It is true that many of the issues that could appropriately be categorized under these aspects have already been touched upon during the previous discussions; however, through this chapter, we intend to pause briefly at some of those issues that have not been addressed previously. As for those already covered, we shall not dwell upon them, or we will only refer to them briefly if the situation necessitates. ¶

Accordingly, we will proceed with this chapter in the following manner: Chapter One: Jihad in Theoretical Research. Section One: Jihad according to Muslim writers—with discussion. Section Two: Jihad in the writings of non-Muslims and encyclopedias—with discussion. Chapter Two: Jihad in the Reality of War. ¶

Section One: Military alliances that mandate the participation of Muslims in combat, alongside others, against other regions. Section Two: Leasing military bases and airports, selling strategic materials, and all other forms of assistance. Section Three: Wars between Islamic countries. Topic One: The Shariah qualification (takyif) of wars between Islamic countries. Topic Two: The position of non-combatant Muslims regarding these wars. Topic Three: The position of those compelled to fight in these wars. Section Four: Militant organizations in the Islamic world. Topic One: The theoretical foundations upon which these organizations are based, and the position of Shariah jurisprudence (ijtihad) regarding them. Topic Two: The various sources of financial, military, and political support upon which these organizations rely, and the position of Shariah jurisprudence regarding them. Topic Three: Their types in terms of their fields of operations. Subsection One: Border activities against enemies. Subsection Two: Fedayeen (commando) activities against enemies inside occupied territories or enemy lands. Subsection Three: Activities within Muslim lands against the state or some of its sects/factions. Topic Four: Fighting between organizations, and the position of Shariah jurisprudence regarding it. Topic Five: The position of Muslims regarding internal fighting between organizations. ¶