1.

0 INTRODUCTION

This paper discusses the position and status of prisoners of war in Islam and how the two aspects are

maintained or otherwise in Islam from the days of the Prophet (PBUH) hitherto. A prisoner of war is a

product of war. He or she is a combatant that falls into the hand of the adverse power. What is

platitude is that after every war waged or fought, there should ordinarily be the vanquished and the

victor. In Islamic rules of war the latter realizes war spoils from the former and this war spoils include

human captives christened as “slaves” or “captives” in Islamic law and are termed prisoners of war in

modern terminology.1

Before the advent of Islam prisoners of war were subjected to very cruel persecution. 2 But with the

advent of Islam, prisoners of war began to pass through some metamorphosis where their status was

gradually transforming to a better footing as wars were waged and prisoners of war were falling into

the domain of Islamic authority and revelations were revealed on how they should be treated.

1.1 Statement of the Problem

There is widespread misconception that Islamic rules of war are very barbaric and cruel,

especially when it comes to treating captives (prisoners of war). The misapplication of Islamic principles

or a sheer derogation from the actual teachings of Islamic rules of war by some extremist organizations

that claim to be Islamic also obfuscates the actual understanding of the position of Islamic law vis-à-vis

prisoners of war. Hence, there is need to clarify the actual rulings of Islamic law regarding prisoners of

war.

1
Khadduri, M., War and Peace in the Law of Islam, (The John Hopkins Press, 1955) 118.
2
Qureishi,M. M., Landmarks of Jihad, (Muhammad Ashraf Kashmir Bazaar, 1971) 118.

1
 1.2 Research Question

The questions this paper raises are:

1. Does Islamic International law (Siyar) recognize the status of prisoner of war?

2. Are there any rights accorded to a prisoner of war in Islamic International law?

3. In Islamic International law, is a prisoner of war regarded as a friend or a foe?

1.3. Aims and objectives

The aim of this paper is to elucidate on the status of prisoner of war in Islamic International Law (Siyar).

The objectives are:

1- To discuss the legality or otherwise of capturing prisoners of war in Islamic International Law (Siyar ).

2- To analyse the rights accorded to a prisoner of war under Islamic International Law.

3- To enlighten the minds of those who have misunderstood or misapplied Islamic rules of war as it

relates to the treatment of prisoners of war.

1.4 Justification of the Study

This paper is justified by the very fact that in the present days many groups that identify themselves

with Islam, for instance, Boko Haram, Islamic State of Iraq and Levant (ISIL) etc, have in clear breach of

Islamic principles gone agog in capturing captives in the name of Islam and treating them in a manner

that is un-Islamic and absolutely incongruent with the Islamic rules of war and peace. This necessitates

2
a need to exhume and elucidate the accepted Islamic norms of treating prisoners of war if captured in

the course of a lawfull armed conflict.

1.5 Scope and Limitations of the study

The scope of this paper is the rights of prisoners of war and how they should be treated under Islamic

rules of war. The paper is not comparative as to compare the position in Islamic law with any other

jurisdiction. This paper will review, analyse and expatiate on the status of prisoners of war in Islamic

law with a view to discovering whether they (the prisoners of war) are befriended or antagonized in

Islamic jurisdiction.

1.6 Methodology

This methodology used in this paper is doctrinal. It therefore analyses and clarifies the status of a

prisoner of war under Islamic International Law (Siyar) as enshrined in the primary sources of Islamic

law, that is, the Holy Quran and the Sunnah of the Prophet (PBUH) and in the secondary sources like

consensus of scholars (Ijma), analogical deductions (Qiyas). The paper also reviews relevant

information from other secondary sources like International Treaties, for instance, Cairo Declaration on

Human Rights in Islam (1990), relevant text books by Muslim and non-Muslim authors, articles from

local and international journals, conference and seminar papers.

3
4.2 Rights of Prisoners of War in Siyar

In pre Islamic Arabia, captives (prisoners of war) were executed and those not executed were made to

beg for their subsistence.3 However with the advent of Islam, Prophet Muhammad (PBUH) changed the

custom and clothed it with some humanitarian considerations.

Historically, Islam came and found the custom of capturing prisoners of war already in place in the

Arabian Peninsula and resultantly Muslims routinely captured a large number of prisoners and besides

those who, under no duress converted to Islam, most of the prisoners were ransomed or enslaved. 4

The reason for the enslavement was reciprocity as Pasquier writes:

It was the custom to enslave prisoners of war and the Islamic state would have put itself at a

grave disadvantage vis-à-vis its enemies had it not reciprocated to some extent. By

guaranteeing them (POWs) humane treatment, and various possibilities of subsequently

releasing themselves, it ensured that a good number of combatants in the opposing armies

preferred captivity at the hands of Muslim to death on the field of battle.5

This assertion of Pasquier has brought to the fore that all prisoners of war were treated in Islamic state

by Muslim in a very humane and amiable manner that made the prisoners prefer being captured by

Muslims to being killed for their state allegiance i.e. the allegiance they were fighting for. 6

Prisoners of war in Islamic states are entitled to plethora of rights that can parallel those of a free

Muslim.

Those rights include:

3
Khaddur, above n. 1, p. 118.
4
Qureishi, above n. 2, p. 118.
5
Roger Diupasquier, Unveiling Islam, (Islamic Texas Society, 1992) 104.
6
Ibid.

4
1. Right not to be executed

In Siyar, prisoners of war are not executed just for being captured as prisoners of war, except for other

crimes they might have committed. It is indeed true that after the Battle of Badr, some prisoners were

executed for their earlier grave crimes in Mecca and the rest were given option of wining their

freedom by paying ransom or teaching 10 Muslims to read and write or by converting to Islam. 7 It is

the view of Hanafi School that executing prisoners of war is strictly forbidden and this is the most

widely accepted view.8

However, the opinion of Maliki, Shafi’i, Hanbali and jafari schools is that adult male prisoners of war

may be executed, but such execution was conditional on the reasonable belief that the male prisoners

of war would pose a genuine and immediate threat to the Muslim community if allowed to live. 9

Moreover, it was opined that the reason Muslim jurists adopted this position was largely because it

was consistent with the practice of the Middle Ages. 10 What is pertinent to take note of here is that it is

only the Muslim leader that makes the decision for the execution if it is to be made. 11

However, the most widely accepted view as said earlier, is that prisoners of war should not be

executed just for being captured and this is the view of the most contemporary Muslim scholars. The

view is scaffold on the fact that the practice of not executing prisoners of war was the policy practiced

by the Prophet Muhammad (PBUH).12 The 20th century Muslim scholar Sayyid Abul Ala Maududi says

7
Khadduri, above n 1.
8
Maududi, Introduction of Ad Aar “Period of Revealation”, (the John Hopkins, 1967) 159.
9
Qureishi, above n 2.
10
Khadduri, above n 1.
11
Ibid.
12
Muhammad Hashmi Kamali, Principles of Islamic Jurisprudence, (Islamic Texas Society, 2005) 115.

5
that no prisoners should be “put to sword” in accordance with the saying of the Prophet Muhammad

(PBUH).13

The Holy Qur’an states that:14 “And if any of the polytheist seeks your protection, then grant him

protection so that he may hear the words of Allah. Then deliver him to his place of safety. That is

because they are a people who do not know.”

Yusuf Ali another 20th century Muslim scholar while commenting on the above verse writes:

Even those enemies of Islam actively fighting against Islam, there may be individuals

who may be in position to require protection. Full asylum is to be given to them and

opportunities provided for hearing the word of Allah…..if they do not see their way to

accept Islam, they will require double protection (1) from the Islamic forces openly

fighting against their people and (2) from their own people, as they detached from. Both

kinds of protection should be ensured from them and they should safely be escorted to

a place where they can be safe.15

Furthermore, one of the prominent international treaties designated on the tenets of Islamic

international laws (Siyar) known as Cairo Declaration on Human Rights in Islam 1990, in its article 2

prescribes that it is prohibited to take away life except for Shari’a prescribed reason. The Article also

provides that it is forbidden to result to any means which could result in the genocidal annihilation of

mankind.16 It also further reaffirms that the preservation of human life throughout the term of time

willed by Allah is a duty prescribed by Shari’a.17

13
Maududi, above n 8.
14
Holy Qur’an 9:6
15
Ali, Abdullahi Yusuf, The Holy Qur’an, (King Fahad Holy Qur’an Printing Complex, 1991).
16
Cairo Declaration, Article 2(b).
17
Ibid. Article 2(c).

6
 As for women and children they cannot be killed or executed under any circumstances regardless of

their faith when they fall as prisoners of war. 18 They may be freed or ransomed and women who are

neither freed or ransomed by their people may be kept in bond under individual custodians as ma

malakat aymanukum and their custodians/masters may have sexual intercourse with them. 19

2. Right not to be Tortured

Prisoners of war captured by Muslims should not be tortured nor be manhandled in any way. Maududi

states that Islam forbids torturing especially by fire and he quotes the Prophet Muhammad (PBUH)

saying; “punishment by fire does not behoove anyone except the master of the fire (God).” 20

Moreover, Cairo Declaration states that: “Safety from harm is a guaranteed right. It is the duty of the

state to safe guard it, and it is prohibited to breach it without a sharia-prescribed reason.” 21

This clearly shows that torturing a prisoner of war is seriously frowned at in Islamic International Law

and is strictly prohibited.

3. Right to Food, Shelter and Clothing

18
Patricia Crone, God’s Rule, Government of Islam, (Columbia University Press, 2004) 371-372.
19
Sahih Muslim, vol.8 hadith 34333 (http://sunnah.com/muslim/17#43) accessed on 7th july, 2018 @ 2:15am
20
Maududi, above n 8.
21
Cairo Declaration. Article 2(c).

7
Prisoners of war in Islamic International Law should be provided with good food and a befitting place to

sleep. It is not allowed to starve prisoners of war or to even feed them with a low quality food if the

captor can afford better food.

Islamic Law holds that the prisoners of must be fed and clothed either by the Islamic government or by

the individual who has the custody of the prisoner.22 Prisoners of war must not be forced to beg for

their subsistence.23 The Holy Quran provides, when describing the attitudes of the believers, that “And

they give food in spite of love for it, to the needy, the orphan and the captive (a prisoner of war).” 24

The aforementioned verse was revealed to commend and praise Muslims who were giving preference

to the needy, orphans and the prisoners of war to themselves by feeding them even when they, the

Muslims, are in need of the food meaning the food was not sufficient.

William writes, describing the period of the early Muslims and how they were treating their prisoners,

that:

In pursuance of Mahomet’s commands, the citizens of Medina and such of the Refugees

possessed houses, received the prisoners and treat them with much consideration.

Blessings be on the men of Medina! Said one of those prisoners in later days. They made

us ride while they themselves walked; they gave us wheaten bread to eat when there

was little of it, contending themselves with dates.25

This altruism displayed by the Medina people on the instruction of the Prophet Muhammad

(PBUH), was and still the highest humane and dignified treatment a prisoner of war could ever get.

22
Maududi,above n 8.
23
Ibid.
24
Holy Qur’an 79:8.
25
Williams Muir, The Life of Mahomet, (Smith & Co., 1961) 122.

8
 For a prisoner of war to eat better food than his master and ride when his master was walking is an

unparalleled stand and record of treating prisoners of war that Islam set which no civilization has

ever broken hitherto. And such is how Islamic Law instructs prisoners of war to be treated. They

should never be under fed or ill fed nor be under clothed or ill-clothed nor be allowed to sleep in a

dehumanizing conditions.

Cairo Declaration provides that:

In the event of the use of force and in case of armed conflict, it is not permissible to kill

non-belligerents such as old men, women and children. The wounded and the sick shall

have the right to medical treatment; and prisoners of war shall have the right to be fed,

sheltered and clothed. It is prohibited to mutilate or dismember dead bodies. It is

required to exchange prisoners of war and to arrange visits or reunion of families

separated by circumstances of war.26

This declaration has made it mandatory to feed, shelter and clothed prisoners of war and not doing so

means breach of the terms of the declaration. Rights to food, shelter and cloths are very much

indispensable and indisputable with regard to prisoners of war and in no circumstance should they be

deprived of such rights.

Another generosity of Muslims towards prisoner of war was also displayed during the crusades as

exemplified by sultans such as Saladin and Alkamil where after Alkamil defeated the Franks during the

crusades, Muslims showcased an unparalleled feat of mercy and compassion to the putative prisoners

of war. Oliverus scholasticus, in recognition of this humanitarian rectitude of Muslims, poured eulogies

26
Cairo Declaration. Article 3(a).

9
 on the Islamic laws of war and he commended how Alkamil supplied the defeated Frankish army with

food.27

Scholasticus says:

Who could doubt that goodness, friendship and charity come from God? Men whose

parents, sons and daughters, brothers and sisters had died in agony at our hands, whose

lands were took, whom we drove naked from their homes, revived us with their own

food when we were dying of hunger and showed us with kindness even when they were

in the power.

This shows that Islamic laws of war allows and encourage Muslim to show kindness even to prisoners

of war who might have committed serious crimes against them.

4. Right not to be Separated from Relatives

During the era of Caliph Umar (R.A), he made it illegal to separate related prisoners of war from each

other after one captive complained to him for being separated from her mother. 28

Morover, Cairo Declaration provides, as stated earlier, that it is required to exchange prisoners of war

and to arrange visits and reunions of families separated by circumstances of war. It is then a right of a

prisoner of war under Islamic law of war to be allowed to reunite with separated relatives. Even when

Muslims conquer enemies’ land and capture enemies as prisoners of war, when dividing the spoils of

war, women should not be separated from their husbands or children from their parents. 29

27
Judge, Wearamantry and Christopher, G., Justice Without Frontiers, (Bill Publishers, 2000) 136-7.
28
Naqvi, S. N. H., Perspective on Morality and Human Well-Being,( Kube Publishing Ltd, 2016) 49.
29
Khadduri, above n. 1.

10
 Moreover, the Prophet Muhammad (PBUH) had captured the Arabs of Banu Mustaliq but when he

married one of them Juwairiyyah he ordered one hundred slaves of her tribe to be set free. 30 He also

ordered thousands of the tribe of Hawazin to be emancipated on account of kinship and in response to

their demand.31 What is to be noted here is that Islamic International Law accords great honor to

kinship and blood relationship so much so that a prisoner of war is not to be separated from his

relatives and may be freed for kinship. Separating a prisoner of war especially a woman from her child

or husband if he is also among the captives or a child from his parents is an emotional torture which

Islamic law never permits.

5. Right to Religion/Retention of Faith

A prisoner of war in Islam has a right to retain and practice his faith and cannot be compelled to

proselytize to any religion not even the Islamic faith. This principle is basically scaffold on the golden

rule in Islam that there is no compulsion in religion meaning that nobody should be compelled to

accept the faith of Islam.

Holy Qur’an states that:

There shall be no compulsion in (acceptance) of religion. The right course has become

clear from the wrong. So who so ever disbelieves in Taghutt and believe in Allah has
30
Ibid.
31
Ibid.

11
 grasped the most trustworthy handhold with no breaking it. And Allah is Hearing and

Knowing.32

This verse clearly portrays Islam as a religion of choice and unforced willingness and no man should be

forced to accept the faith. However, a prisoner of war who deserves execution may be given option

either to accept the religion and thus be pardoned or be executed for the crime he had committed. 33 In

this respect it is not that the prisoner is forced to accept the religion but he is just given a choice to

extricate himself from execution for a crime he had committed. This is sheer mercy and compassion.

Cairo Declaration also states that:

Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure

on men or to exploit his poverty or ignorance in order to force him to change his religion to

another religion or to atheism.34

The provision of this article clearly and unambiguously shows that in Islamic laws of war, right to

religion is an unfettered one and cannot be compromised. No prisoner of war should be compelled to

change his faith but may be cajoled through good preaching and excellent humanitarian treatment to

accept the faith of Islam and many prisoners of war did accept the faith of Islam on the frolic of their

own mostly due to the unmatched hospitality and humanitarian treatments they received from their

Muslim masters and the Islamic state in general. 35

However, it is pertinent to emphasize at this juncture that, a prisoner of war who deserves execution

for the crimes he committed against Muslims before or during the war, may still be given option to

accept the faith of Islam and be exculpated from execution. This indeed is an unparalleled display of
32
Holy Qur’an 1:256.
33
Khadduri, above n 1.
34
Cairo Declaration. Article 10.
35
Williams, above n 25.

12
 humanitarian standard that never existed before the advent of Islam and can never be found in any

other non-Islamic rules of war. However, the option to accept Islam should not be mistaken as a

compulsion into the faith. The prisoner to whom the option is given is at liberty to either accept or

repudiate it and where he chooses the latter no one can compel him retreat on his choice but will just

be treated according to the rules of war for the crimes he committed. 36

6. Right to Amnesty when Besought

Amnesty here refers to the right a prisoner has to be given safety assurance when he asks for it. It also

includes right to be spared even on the battle field if the enemy warrior beseeches that most especially

by declaring his “Shahada”, that is, accepting the faith of Islam.37

It is an uncompromising rule of Islamic law of war that no matter how fierce and dust-winding a battle

gets, as soon as an enemy accepts Islam he is to be spared and should in no circumstance be killed.

This should be the position even if the enemy’s capitulation might be seen a travesty to rescue himself

from being killed in the battle field. This is due to the fact that in Islam the rule is that you judge people

according to the overt action and no one knows the secrecy of heart but Allah (S.A.W).

Prophet Muhammad (PBUH) says-decide on what is in the overt, Allah is verily the one who knows and

takes care of what is in the covert.38

Once, a companion of the Prophet (PBUH), Usman bn Zaid overcame an enemy soldier in a hand-to-

hand combat at the battlefield and the soldier having been overpowered, implored Usama for amnesty

just as he, Usama had prepared to deliver the death blow. Usama had heard the soldier imploring for
36
Qureishi, above n. 2.
37
Prophet Muhammad’s Rules of war (file:111c:14ser/HP/Downlod/Prophet-muhammads-rules-of-warhtml) accessed 12 th
December, 2017 @ 1:28am.
38
Sahih Bukhari.

13
amnesty but ignored the plea and killed him. When the Prophet (PBUH) received this story, he

vociferously reprimanded Usama and condemned this act as grossly in-congruent with the Islamic rules

of war.39

The illustratious case of Al-Hurmuzan, 40 the famous Persian commander will help here to show the

strength, patience and indispensability of amnesty in Islamic rules of war. Al Humurzan was a fierce

Persian commander who broke all pledges of peace with and fought Muslims with all ferocity and

antagonism at the early conquest of Iraq. He was eventually captured and sent to Medina, the then

Islamic headquarters. The then caliph of Islam Umar bn Khattab determined to order for his execution

for the heinous crimes he committed against Muslims but before he does that he called his

(Humurzan’s) attention to the repercussion of fighting the Muslims.41

Al Humurzan, as Mughira bn shu’ba interprets, replied by saying that in the pre Islamic time Allah was

on the neutral side, leaving both of us to fight, and thus we were victorious over you. Umar said NO! it

was because you were united and we were not…and now tell me why did you not respect your pledges

of peace?

Al Humurzan said “I am afraid you will kill me before I tell you” and he begged, grasping like one faint

with thirst, for water. ‘Give it’ said the caliph Umar and let him drink it in peace. The prisoner yelled

Nay! I fear to drink lest someone slays me unaware. Caliph Umar said ‘your life is safe until you have

drunk the water up’.

39
Op cit, n 36.
40
Khadduri, above n 1.
41
Ibid.

14
Al Hurmuzan, believing that he had won his case because he knows that in Islamic rules of war once

amnesty is given it is not retreated, poured the water on ground. The caliph ordered for another cup

for him but he said he was no longer in need of water all he had wanted was to be given safety (aman)

and he was given since the caliph said his life is safe till he has drunk the water up. Caliph was enraged

by his deceit and travesty from an arrow enemy of the Muslims who was also guilty of executable

offences of breaching many pledges of peace with the Muslims. He, the caliph, said “NO you are a liar!”

I am going to kill you”. The people (Muslims) around quickly interposed and reminded the caliph of the

rule that once “aman” is given, it is for good and cannot be retreated. The caliph strove to have any

legal justification for killing Hurmurzan for his repeated treacheries against Muslims and gaining

amnesty by deceit but could not find any so ye yielded and allowed Hurmurzan. 42 Later Hurmurzan

accepted Islam and continued residing freely in Medina receiving pension from the Islamic treasury. 43

Another topical and typical example of the amnesty in Islamic rules of war is the Treaty of Hudaibiyyah

when the Muslims including the Prophet Muhammad (PBUH) himself came to perform lesser hajj

(Umrah) but were prevented by the Qureish in Mecca.44 The Muslims in that time were strong enough

to break into Mecca and perform their Umra or even outfight the Qureish. However, the Qureish

proposed for a treaty and asked the Muslims to go back to Medina and come back next year to

perform their lesser hajj.

The Muslims had wanted to, at all costs, invade Mecca, their home town from where they were

expelled, and perform their peaceful lesser hajj, but the Prophet (PBUH) inclined to the treaty and

calmed the Muslims to accept the terms of the treaty. The treaty terms were all lopsided openly

42
Ibid.
43
Muir Williams, The Caliphate, its Rise, Decline and fall, (Edinburg Press, 1924) 171-3.
44
Sulhu hudaibiyyah.

15
favouring the Qureish and exerting their superiority to the detriment of the Muslims, yet the Prophet

(PBUH) and the Muslims accepted the treaty since they had already given their words to the Qureish

which was like giving amnesty to the Qureish which the Qureish eventually breached by themselves.45

After the breach of the Hudaibiyyah Treaty by the Qureish, the Muslims conquered Mecca but in a

peaceful manner and the Prophet (PBUH) declared amnesty to different categories of people. 46 He was

loudly saying, whosoever enters his home is safe, whosoever enters the house of Abu Sufyan is safe,

whosoever does this and that is safe. This blanket self-imposed declaration of amnesty by the superior

Muslim power to those who had persecuted, maltreated and severely sent them away from their

homes for no any reason other than they declared their allegiance to the monotheistic faith of Islam,

was an unmatched showcase of humanitarian feat and pavement of international rules of war hitherto

no any force has ever shown.47

Moreover, Cairo Declaration provides that: “Every one shall have the right in security for himself, his

religion, his honour and his property.” 48 This article reaffirms the general amnesty declaration that

Islam has over the security, religion, honour and properties of all including prisoners of war.

In Islamic rules of war if a prisoner of war is given amnesty, that amnesty stands and remains in force

against all Muslims unless when he the prisoner breaches the amnesty terms and even on that it is only

the leader (Imam) that can negate the amnesty.49

The Holy Qur’an restates and reaffirms this rule when it says:

45
Ibid.
46
Khadduri, above n 1.
47
Ibid.
48
Cairo Declaration. Article 18(a).
49
Qureishi, above n 2.

16
 If any of the polytheist seeks your protection, then grant him protection so that he may hear

the words of Allah, then deliver, him to his place of safety. This is because they are people who

do not understand.50

This verse is amplifying the fact that in Islamic rules of war where a Muslim grants amnesty to a

polytheist or a prisoner of war, he (the Muslim), should ensure that amnesty is held sacred and not

breached. Moreover where a single Muslim grants amnesty to a prisoner of war it binds the entire

Muslim community and the authority should also respect that amnesty unless there is overriding public

interest that demands otherwise.51

7. Rights to Post humous Respect and Honour

One of the novel and clearly unprecedented humanitarian rules of law that Islamic Law brought is the

respect for the post humous honour of prisoners of war. Prisoners of war should be respected and

their honour protected even after their death.

The Prophet Muhammad (PBUH) ordered that the dead bodies left by the enemy on the battle ground

should be decently treated. He vehemently prohibited mutilation of dead bodies and instructed dead

50
Holy Qur’an 9:6.
51
Qureishi, above n 2.

17
 bodies of the enemies be buried in pits. 52 The merciful nature of the Prophet (PBUH) and the unique

humanitarian standards of Islamic rules of war are indeed enviable and pace-setting.

The question here to ask here is; can a commander who respects the dead bodies of his enemies on

the battleground ever be cruel to the living prisoners of war who fall into his custody? The indisputable

answer to this question is indeed no! The position in Islamic law of war and peace is that even the

corpse of enemies on the battleground should not be disrespected let alone the corpse of prisoners of

war who is under the authority of the Muslims. Their corpses are equally respected.

Cairo Declaration provides that every human being is entitled to human sanctity and the protection of

one’s good name and honour during one’s life and after one’s death. The state and the society shall

protect one’s body and burial from desecration.

8. Right to medical care

Prisoners of war in Islam have absolute and unfettered rights to medical care and should be treated

medically when they are in need just like every other Muslim should be. 53

In all the battles led by the Prophet (PBUH) and the one he instructed to be led by his companions

(Sahaba), the casualties and the ill of the enemies (prisoner of war) were given equal medical

52
Agirman, Mustapha, (EKEV 11, 1992), The protection of Civilians in the Battles of Prophet Muhammad
(file:111c:users/HP:/Downloads/the-protection-of –civilians-in-the-battles-of-prophet-muhammad) accessed on 12 th December,
2017 @ 1:23am.
53
Ibid.

18
 treatment with the Muslims.54 There has not been any record in history where a prisoner of war was

refused medical treatment he was in need of under the authority of Muslims. 55

9. Right to freedom once Declared by the Authority or the Islamic authority or the Master/Custodian

One thing in Islamic law is that prisoners of war are not expected to be held in permanent custody but

rather a lot of encouragements are given in both the Holy Qur’an and the traditions of the Prophet

(PBUH) to emancipate them. In other words, emancipating prisoners of war is an act of worship

(Ibadah) in Islamic law and it is so much encouraged and practiced, especially during the era of the

Prophet (PBUH) as an act of charity. 56 Moreover, setting prisoners of war free has been made to be

expiation for so many commissions and omissions in Islam. 57 A prisoner of war in Islam is not

condemned to live permanently in servitude. The prisoner could be set free either as an act of worship

or for heavenly reward, an act of expiation for commission or omission committed by the

master/custodian or for ransom that he the prisoner should pay to eventually emancipate himself.

Holy Qur’an says:

Therefore when you meet (in the battle fields) the unbelievers smite their necks: till when you

have killed and wounded many of them, then bind a bond firmly (on them i.e. take them as

captives). There after either for generosity (i.e. free them without ransom) or ransom

(according to what benefits Islam) until war lays its burden.58

54
Ibid.
55
Nigosian, S.A., Islam. Its History, Teachings and Practices, (Indiana University Press, 2004) 115.
56
Holy Qur’an 47:41.
57
Ibid 24:33.
58
Ibid. 47:4.

19
 Let us now briefly discuss some acts that require the expiation of setting a prisoner of war free;

i. Vowing by one that one will not have sexual intercourse with his wife (Izhar). This act used to be the

practice of Arabs before and even after the advent of Islam. One will just liken his wife to his mother as

an indication that he will not have any relation (sexually) with her. When Islam came, it provides a way

out for those husbands who made those vows by providing way of expiating themselves from the vow

which was before a cul-de-sac that one cannot redeem oneself from. Among the options of that one

may opt for was the freeing of slave ( a prisoner of war) (tahriru rakabatin).

Holy Qur’an says:59

And those who pronounced thihar from their wives and then wish to go back on what they said-

then (there must be) the freeing of slave before they touch one another. That is what you are

admonished thereby; and Allah is acquainted with what you do.

ii. Omitting or vitiating a day fasting in (Ramadan) the holy month of fasting

When a Muslim omits deliberately, without any valid and acceptable reason, to fast a day on the

month of Ramadan or he vitiates the fasting after he had started it for the day, he is obliged to expiate

for that day and one of the options of expiation is freeing sixty (60) slaves (prisoners of war) that are

either under his custody/mastership or to get them from another master/custodian and set them

free.60

Moreover, where a prisoner of war is declared free by his master/custodian or the Islamic authority if

he is under its custody, he is free and his freedom cannot be retreated by the declarer. 61 This is the rule
59
Ibid 58:3.
60
Ali, above n 14.
61
Khadduri, above n 1.

20
 under Islamic law of war and peace. A master/custodian who has declared his prisoner free cannot

later retreat that declaration claiming that it was a mistake or joke, unless if he can prove the mistake

to the conviction of the Islamic authority. 62

10. Right not to be taken hostage

In Islamic law of war and peace taking hostage of a prisoner is not allowed. It has been provided that;

“taking hostage under any form or for any purpose is expressly forbidden.” 63 That means a prisoner of

war cannot be taken as a hostage. Prisoners of war are not hostages and should not be treated or

taken as such. It is a crime in Islamic rules of war to take a prisoner of war as hostage.

11. Right not to be Punished with Fire

Punishment with fire is generally prohibited in Islam. The prohibition also extends to prisoners of war who

shall in no circumstances be punished with fire. The Prophet Muhammad (PBUH) expressly and strongly

forbids punishment with fire. He says “punishment with fire does not behove any one except the Master of

the Fire (that is God)”.64

12. Right to Honour Treaty with the Prisoner’s of War Country

This right is based on the general rule in Islam that promises and vows made individually or collectively (in

treaties) should always be respected. These vows should not be disavowed unless if they go against the

provisions of the Holy Quran or the Sunnah of the Prophet (PBUH). A treaty contradicts the Holy Quran and

the Sunnah of the Prophet if it makes lawfull what Allah( SWT) and His Messenger have declared unlawfull or

vice versa.

62
Sahih Muslim 8:34333. See also Abi Dawud 11:2151.
63
Article 21.
64
Maududi, above n. 8.

21
The Holy Quran commands Muslims to render trust to whom they are due (to fulfill promises when made). 65

So, if there is a treaty between the Muslims and the prisoner’s of war nation that says, for instance, prisoners

of war should be exchanged, such treaty should be respected and the prisoners should be exchanged in

accordance with the treaty.

13. Right to Honourable Treatment in Accordance with One’s Status

Where a prisoner of war is of high status amongst his people, he shall not be lowered by the Muslims as to

offend his pre-capture status. This is the practice of the Prophet Muhammad (PBUH) as illustrated in the

incident when a daughter of a Jewish king was captured by the Muslims. He treated her in accordance with

her status, married her and set her relatives, who are prisoners of war, free. 66 The companions of the Prophet

(PBUH) having seen what he, the Prophet (PBUH) did, emulated him and set all the relatives of the Prophet’s

wife free as they could not hold in-laws of the Prophet in captivity. 67

14. Right to Return of Corpses

This right is an active right in the sense that for it to become operational the enemies must have asked for it. 68

Where the enemies do not ask for the return of their corpses, the Muslims should treat the corpses decently

and should not allow them to decompose.69

15. Right of women prisoner of war

65
Holy Qur’an 4:58.
66
Joseph, Scatch (ed), The Legacy of Islam, (Oxford, Oxford University Press, 2nd Ed., 1979) 140-5.
67
Ibid.
68
Agirman, above n 52.
69
Ibid.

22
All the aforementioned rights also avail women as they avail men. In other words, Islamic rules of war

is never discriminatory as all the protections accorded to men prisoners of war are also equally

accorded to women prisoners of war. The only area of demarcation is in the case of a woman who has

been captured as a prisoner of war. Her master under whose custody she falls may if, he so wishes,

have sexual relation with her and where he so chooses he will be responsible for her shelter, clothing,

feeding and all other welfare a woman needs.70

These are the type of women that Qur’an refers to as what your right hands possess (ma malakat

aymanukum)71 and they are regarded as partners in progress and should not be humiliated or

disgraced. Moreover, whatever such women bear of children belong to the master as his legal

offspring.72

The reason or one of the reasons why masters are allowed to have sexual relations with their women

captive is not far-fetched. It is very indisputable that a woman of puberty would have urge for sexual

union and the fact that she is under the custody of a new master should not deprive her of satisfying

her urge hence the master is given the legal right to have intercourse with her. The master can free

and marry her as a full wife. But however, where he frees her, she reserves the right to accept or reject

him as a suitor.73

4.3 Conclusion

Prisoners of war in Siyar have been depicted to be having plethora of rights and privileges that make

them akin to and concomitant with the rest of the Muslims only that they are captured as war captives

70
Agirman, above n 52.
71
Holy Qur’an .
72
Qureishi, above n 2.
73
Ibid.

23
and should bear the name “prisoners of war”. They are accorded with all human dignity and respect

and are never persecuted or maltreated as doing so is a sinful act in Islamic law. The rights of prisoners

of war in Islamic law do not stop with the death of the prisoners as even the deceased prisoner enjoys

some post humous rights that are inalienable and should be respected by the Muslims and Islamic

authority. At the time of the Prophet (PBUH) those rights prevailed and hitherto they are enshrined in

Islamic law of war and peace and the fact that some people deviate from or disparage those rights

does not mean that they are abrogated or they do not exist or are not obligatory on every Muslim to

respect and abide by them. Cairo Declaration on Human Rights in Islam 1990 is just but a reflection and

reaffirmation of some of these rights which are since from the era of the Prophet (PBUH) entrenched in

the Islamic International Law. For instance, prisoners’ right to religion, right to human dignity and

freedom against torture which both the Holy Qur’an and the Cairo Declaration are very emphatic on.

Furthermore one of the very striking lessons that the conventional international law of today can learn

from its Islamic counterpart is the extreme sense of humanity and respect that prisoners of war are

accorded to under the latter. Another very important lesson is the fact that in Islamic International law

prisoners of war are not caged in a restricted building called “prison” as it is normally the practice in

the former. They have their liberty to freely move and intermingle with the Muslims. As such, prisoners

of war under Islamic International Law are regarded and treated as ‘Friends’ not ‘Foes’.

24