Torturing Iraqi POWs:The Legal and Juristic Views

Question

News is circulating throughout the world about the violations committed by Anglo-American occupation troops in Iraq. Iraqi prisoners are being sexually harassed, abused, and tormented at the hands of occupation soldiers. This has caused the US a great deal of moral scandal. We would like you to clarify what International Law says about the rights of prisoners of war, shedding light on the status of such prisoners from the point of view of Islamic Shari`ah.

Answer

In the Name of Allah, Most Gracious, Most Merciful. All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

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The treatment of war prisoners has been given special consideration in all divinely revealed religions as well as in International Law. Islam, in particular, pays great attention to observing the rights of prisoners of war. It absolutely forbids starving or abusing them in any way, or mutilating their corpses.

This indicates the level of tolerance in Islam, even with non-Muslim enemies during times of war. However, Muslim detainees under foreign occupation have been exposed to flagrant violation of their rights, including sexual abuse, murdering children and burying the corpses of the dead in mass graves. Detainees of Guatenamo and Iraq are living examples of the US occupation troops' violation of human rights.

The way Iraqi prisoners are treated under the Anglo-American occupation is a flagrant violation of the Geneva Convention regarding the rights of prisoners of war. The soldiers who abuse prisoners and torture them may be tried as war criminals.

Dr. Ahmad Abul-Wafa, Professor of International Law at the Faculty of Law, Cairo University, states in his book Al-I`lam bi Qawa`id Al-Qanun Ad-Dawli: Al-`ilaqat Ad-Dawliyyah fi Al-Islam:

“The 1949 Geneva Convention outlined the treatment of prisoners of war, i.e., detainees who have fallen under the power of the enemy. According to this convention:

1. Prisoners of war are to be under the direct authority of the occupying state, not under the authority of the soldiers or the military units that captured them. So the occupying state is to be regarded as responsible for the treatment of those prisoners (Art. 12).

2. Prisoners of war are to be moved to a safe place away from the battlefield as soon as possible (Art. 19).

3. They are to be provided with housing, clothing, food, and medical care.

4. They have the right to practice their religious rituals and duties.

5. Means of communication are to be made available to them (they are to be allowed, for instance, to send [and receive] letters, parcels, etc.).

6 They may be assigned some tasks, such as farming, transporting things, etc, in return for payment.”

Accordingly, if it is proved that the occupying troops in Iraq are violating the rights of the detainees; they are breaching the rules of the Geneva Convention relative to the treatment of prisoners of war, and thus can be put on trial as war criminals.

The Status of Prisoners of War in Shari`ah

Dr. Saleh ibn Abdullah Ash-Shathri, Professor at the Military College of King Khalid, Saudi Arabia, states:

“There is a lot of evidence in the Qur'an and Sunnah stipulating good treatment of prisoners of war. For example, Allah Almighty says:

“O Prophet! Say unto those captives who are in your hands: If Allah knows any good in your hearts He will give you better than that which has been taken from you, and will forgive you. Lo! Allah is Forgiving, Merciful.” (Al-Anfal: 70).

If Almighty Allah Himself has promised the captives who have good hearts that He, the Almighty will forgive them, the Muslims have no alternative [following Almighty Allah's example,] but to treat the captives with the greatest degree of mercy and humanity.

Islam stipulates that Muslims are to provide captives with adequate food from the food they themselves usually eat, or even better, if this is possible. This is implied in Almighty Allah's words: “And feed with food the needy wretch, the orphan and the prisoner, for love of Him” (Al-Insan: 8).

It was also reported that the Prophet (peace and blessings be upon him) presented food and water to some captives himself.

Reporting the way he was treated when he fell into the Muslims' hands during the great Battle of Badr, Abu Aziz ibn `Umair said:

“I was a captive under the responsibility of Al-Ansar fighters. When it was time to have their lunch or dinner [that was usually bread and dates], they would give me bread and eat dates, following in this regard, the Prophet's order concerning treating us (i.e., captives) well. One of them would give me all the bread he had, and when I would refuse politely to have it, he would return it to me insisting that I eat it.”

Islam, out of mercy and justice, also stipulates that captives are not to be humiliated in any way. It was reported by At-Tabarani on the authority of Abu Aziz that the Prophet (peace and blessings be upon him) said: “Treat the captives well”

It was also reported that when Allah's Messenger (peace and blessings be upon him) saw the captives of the Jews of Banu Quraidhah standing unsheltered on a very hot day, he (peace and blessings be upon him) said, addressing the Muslims charged with guarding them: 'Do not upset them with both heat and shackles; shelter them, so that they may get cool.”

It is derived from this that it is not lawful to torture captives in order to extract military information from them about the enemy. When Imam Malik (may Allah have mercy on him) was asked if the captive might be tortured as a means of securing information from him, he said: “I have never heard anything [in the Shari`ah] about that.”

Islam also stipulates that captives are to be provided with adequate clothing for winter and summer. Jabir (may Allah be pleased with him) reported that when the captives were brought to Madinah following the Battle of Badr, the Prophet (peace and blessings be upon him) noticed that Al-`Abbas (may Allah be pleased with him) [who at that time had not yet embraced Islam] was almost naked. He (peace and blessings be upon him) looked around him, and, finding that a garment belonging to `Abdullah ibn Abu Al-Harith would suit Al-`Abbas, he (peace and blessings be upon him) dressed him in it himself.

It was also reported that the Prophet (peace and blessings be upon him) gave some captives some of his own clothes. Not only that, but Islam also guarantees captives the right to practice their religious rituals.”

Moreover, Dr. Abdul `Azeem Al-Mat`ani, a professor at Al-Azhar university, adds:

“Rulings concerning the affairs of prisoners of war in Islam form a well-established branch in Islamic Fiqh. Captives, in the view of Islam, are people from the enemy who have fallen into the power of Muslims during or following a war with that enemy. If captives are captured while the war is in progress, they are to be imprisoned and guarded with great care until the war is over. Then, it is to be decided what is to be done concerning them. Almighty Allah has referred in the Qur'an to three choices in this regard.

The first choice is concerned with calling them to Islam. This is derived from Almighty Allah's words: “O Prophet! Say unto those captives who are in your hands: If Allah knows any good in your hearts He will give you better than that which has been taken from you, and will forgive you. Lo! Allah is Forgiving, Merciful' (Al-Anfal: 70).

Note that He, the Almighty will forgive the captives when they embrace Islam and follow His teachings sincerely.

The second choice is to release the captives, on condition that they will not pose any threat to Muslims at a later time. Such a choice is especially for the ruler to decide upon.

The third choice is concerned with setting them free in return for ransom either paid by the families of the captives or their states.

These choices are implied in Allah's words: “So when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favor or let them ransom (themselves) until the war terminates. That (shall be so); and if Allah had pleased He would certainly have exacted what is due from them, but that He may try some of you by means of others; and (as for) those who are slain in the way of Allah, He will by no means allow their deeds to perish.” (Muhammad: 4)

Jurists have added two other choices; these are, enslaving captives, or killing them if it is certain that they will pose a threat to the safety of Muslims. Killing does not apply to women and children who have been captured.

Under none of the above choices are captives to be mistreated, humiliated or abused in any way. They are human beings after all, and so, they are to be treated with mercy and kindness.

In this age, Muslims may keep captives in their hands as a means of pressure on the enemy to settle unresolved problems.”

Finally, Sheikh Faisal Mawlawi, Deputy Chairman of the European Council for Fatwa and Research, concludes:

“Muslim rulers have four choices to make with regard to the enemy captives in their hands. Two of these choices are mentioned in the Qur'an; these are, setting them free without any obligation on them, or in return for a ransom.

Jurists have derived two other choices in this regard from the biography of the Prophet (peace and blessings be upon him). These choices are enslaving captives or killing them. These are pertinent to matters of policy that rulers may resort to when necessary.

However, talking about enslaving captives is not relevant nowadays, for it is no longer in use throughout the world by virtue of International Agreements in this respect. Islam would only enslave captives if it was a worldwide practice. But when enslavement was abolished, Islam welcomed its abolition unquestionably [for in fact, Islam is against enslaving human beings]."

This article is from The Revival's first website, where its publication date was not recorded. The date shown above is approximate.