IHL Project

PROJECT ON ISLAMIC INJUCTION ON PRISONER’S IMMUNITY AND TERMINATION
OF CAPATIVITY OF WAR: CASE STUDY OF AFGANISTAN
NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

(2022 – 2023)
SEMETER – VII
SUBJECT – INTERNATIONAL HUMANITARIAN LAW
PROJECT WORK
TOPIC – ISLAMIC INJUCTION ON PRISONER’S IMMUNITY AND

TERMINATION OF CAPATIVITY OF WAR:THE CASE STUDY OF
AFGANISTAN
Submitted to: Submitted by:
Mr. Ayush Jaiswal Deepti Uikey
Assistant Professor 2019BALLB122
SCETION - B
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INTERNATIONAL HUMANITARIAN LAW
CERTIFICATE
This is to certify that the research project titled ‘Islamic Injunctions on Prisoner’s Immunity and
Termination of captivity in War: The Case Study of Afghanistan” has been prepared and
submitted by who is currently pursuing B.A.LLB. (Hons.) at National Law Institute University,
Bhopal in fulfilment of Jurisprudence Course. It is also certified that this is original research
project and has neither been submitted to any other university nor published anywhere else.
Signature of the Student Signature of the faculty concerned
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ACKNOLEDMENT
I would like to acknowledge and extend my heartfelt gratitude to Mr. Ayush Jaiswal helping us
throughout the development of this project into a coherent whole by providing helpful insights
and sharing her brilliance expertise.
We would like to thank the officials of the Gyan Mandir library, NLIU for helping us to find the
appropriate and relevant research material for this study. We are deeply indebted to Almighty
God, my parents, sister, seniors and friends for all the moral support and encouragement. Lastly,
my heartiest thanks to all those, whose names we have forgotten but they were also the helping
hands of ours.
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TABLE OF CONTEN
Contents
CERTIFICATE...........................................................................................................................................2
ACKNOLEDMENT....................................................................................................................................3
INTRODUCTION...................................................................................................................................5
REVIEW OF LITERATURE..................................................................................................................6
STATEMENT OF PROBLEM................................................................................................................7
HYPOTHESIS.........................................................................................................................................7
OBJECTIVES.........................................................................................................................................7
RESERCH QUESTION..........................................................................................................................7
CONCEPT OF PRISONERS OF WAR..................................................................................................8
FOUNDATION OF ISLAMIC LAW......................................................................................................8
ISLAMIC LEGISLATIVE TERMS ABOUT ARMED CONFLICT:.....................................................8

QUR’ĀNIC INJUNCTIONS ABOUT IMPRISON IN ARENA:............................................................9
TERMINATION OF WAR CAPTIVITY & ISLAMIC LEGISLATIVE DISCOURSE:........................9
FREEDOM GRATIS:............................................................................................................................10
RANSOM:.............................................................................................................................................10
LEGISLATIVE DISCOURSE ON RANSOM AND EXCHANGE OF PRISONER:...........................11
EXECUTION & LEGISLATIVE DISCOURSE:..................................................................................12
ENSLAVEMENT:................................................................................................................................12
EXECUTION OF POWS: EXCEPTION OR A GENERAL RULE?....................................................13
IIHL AND POW’S IMMUNITY:.........................................................................................................13
SUGGESTION......................................................................................................................................16
CONCLUSION.....................................................................................................................................16
BIBLIOGRAPGHY..............................................................................................................................18
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INTRODUCTION
Humanity has created a wide range of military regulations over time to protect people from the
misery caused by battle. Recently, an arena that was on Afghan soil from 2001 until 2021
remains. NATO alliances (later headed by the UN-mandated International Security Assistance
Force (ISAF)4 starting in August 2003) and the regional coalition of resistance known as
"Taliban" continued to clash for over 20 years during this violent struggle. Both parties are
advocating a systematised ideology for the maintenance of human existence in addition to having
their own positions and purposes in this case.
What is the immunity of prisoners of war, and how may war captivity be ended? is a pressing
subject of the modern period that is given extraordinary attention under these circumstances.
This element prompted writers of the contemporary era to consider combat imprisonment and its
costs. Since the first Islamic century, Islamic jurists have continued to consider and write on the
issue. Some major research have recently shifted their focus to the problem of war imprisonment
related to Islamic jurists and Islamic military strategy. The article also considers relevant issues
from the POWs' point of view. Islamic jurists are debating legal measures to end wartime
imprisonment and the choices accessible to the prisoner, including:
1. Freedom granted without compensation. It is known as Mann in Islamic legislative literature.
2. Fidā’ (ransom alone or with supplements) (ransom alone or with supplements)
3. The exchange of prisoners of war
4. Execution
5. Enslavement
6. This study's conclude consists of a comparison between IIHL and CIHL.
The International Security Assistance Force (ISAF) and resistance alliance's armed combat in
Afghanistan came to an end in August 2021. One of the main aspects of this fight are the end of
both sides, Both have their own procedures for handling the problem. The Historical human
custom of prisoners of war has persisted for five free-will exchange of prisoners of war, ransom
payments, execution and servitude in line with Islamic Nonetheless, free speech remained the
norm throughout. Military history in Islam. In contrast, extortion and the exchange of prisoners
of war were used rather than the general practice throughout Islam's military history. both the
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execution Prior to the advent of Islam, slavery was a common practice. A group of Islam's
instructions were
REVIEW OF LITERATURE
1. Islamic International humanitarian law at the first time, was codified by Islamic jurist
Muḥammad bin Al-Shybānī as Kitāb al-Siyar al-Ṣaghīr. It was a concise version. Al-
Shybānī extended it with caption of Kitāb al-Siyar al-Kabīr. This work is a magnum opus
in field of Islamic International relations and solution of international conflicts. In
modern age, the notable literature has been produced and available.
2. A meticulous work by Majid Khadduri is “War and Peace in the law of Islam”. He also
presented his thoughts about the topic as “Islam and the Modern Law of Nations”
Karima Bennoune presented a comparison of humanitarian laws in perspective of Islamic
injunctions in his article “As-Slamu ‘Alaykum? Humaniterian Law in Islamic
Jurisprudence”. Ahmad Zaki Yamni is enriched reference on the topic. He elaborated
humanitarian laws associated with Islam as “Humanitarian Law in Islam: A General
Outlook”. This is comparative study of Islamic humanitarian law and international
humanitarian law regarding rights of prisoners of war.
3. A renowned Islamic scholar Dr. Muhammad Munir have produced trustworthy work on
the subject under caption “Debates on the Rights of Prisoners of War in Islamic Law”. He
also presented an analysis about SOPs of Afghani’s indigenous resistance as “The layha
for the Mujahideen: an analysis of the code of conduct for the Ṭālibān fighters in
Afghanistan under Islamic law”
4. An Egyptian Islamic scholar Dr. Ahmed Al-Dawoody also presented his work in perspective of
Conflict in Syria as “Islamic law and international humanitarian law: An introduction to the
main principles” In his work, he mainly discussed Islamic rules of war, Protection of
civilians and non-combatants, usage of permissible weapons in war, Prohibition of
mutilation of the enemy, Management of dead bodies in war etc.
5. Anisseh Van England analysed humanitarian laws as “The difference and similarities
between international humanitarian law and Islamic humanitarian law: Is there ground
for Reconciliation?” Yadeh Ben Ashoor presented his thought on the topic as “Islam and
International Humanitarian Law”.In this work, interpretation of Qur’ānic verses about
POWs has been discussed but this work failed to provide plethora of references in his
work. Sayyid Muṣṭafā Muḥaqqiq presented his work as “Islamic views on Human
Rights” Sayyid ’Abul ‘Ala Maudūdī also presented his research about humanitarian
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rights as “Human Rights in Islam”. In his book, the rights of prisoners have been
discussed as well.
STATEMENT OF PROBLEM
It appears that two ideologies, namely Western ideology and Islamic ideology, have been in
conflict in the Afghan battlefield from 2001 to 2021. Both sides' armed troops have suffered
losses and been detained throughout this fight. Because they are human beings, the captured
soldiers from both sides should be treated with the barest of human amenities. What are the
shared goals that both military forces have agreed to pursue in order to lessen their suffering and
put an end to their captivity?
HYPOTHESIS
The areas of overlap between Islamic law and traditional international humanitarian law on the
termination of war captives in order to reduce human suffering associated with such captivity.
OBJECTIVES
 The objective to make this project is about the study of Islamic International Law.
 And how the International Humanitarian law apply to the Islamic prisoner’s.
 The study of the case of Afganistan.
RESERCH QUESTION
 What is the legislation of termination of war captivity incorporate with Principles of

Islamic international humanitarian law and conventional international humanitarian law
in perspective of Afghanistan?
 What is the debate related to such as protection of civilians and non-combatants,

prohibition against indiscriminate weapons, prohibition against indiscriminate attacks,
protection of civil property in war zone, prohibition against mutilation, civic provision to
prisoners of war etc.
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CONCEPT OF PRISONERS OF WAR
A war prisoner (abbreviated as P.O.W.) is a militant who has been taken prisoner in a conflict
zone by a military or confrontational authority during ongoing hostilities or after the end of an
armed encounter, according to law and jurisdiction. A military or belligerent force may adopt an
aggressive or defensive posture. POWs first appeared in print in 16301.
FOUNDATION OF ISLAMIC LAW
Islamic injunctions are derived from two main sources, referred to as major sources and
subsidiary sources. The Qur'an, prophetic narrations, hagiography (adth & sunnah), Ijm'
(legitimate text predicated on consensus of view), and Qiy's continue to be the fundamental
sources (Analogical principles).
There are still several jurisprudential paths that might be used to build Islamic law. These are
Shari'ah Min Qblan (legal judicial application of faiths prior to the entrance of Islam), sri-e-abah
(jurisdictions of the Prophet's Companions), obstructive the means (Sadd al-Zar'i), and Istib
(continuation of the applicability of a previous accepted rule).
ISLAMIC LEGISLATIVE TERMS ABOUT ARMED CONFLICT:
Before considering how to resolve armed conflicts, it is important to understand the exact
meaning of all the phrases used in Islamic law regarding military expeditions.International armed
conflicts (IACs) and non-international armed conflicts are the two categories into which these
legal terminology fall (NIACs). The following is a brief summary of these terms:
 Jihd, a term used in international military conflict between Islamic states and non-Muslim
states or belligerents, is typically used in Islamic law.
 Non-international armed conflicts (NIACs), according to Muslim jurists, can be divided
into four categories: armed struggle against violent religious fanatics (Qitl alkhaw),
fighting against rebels or secessionists, fighting against terrorists or robbers, and wars of
renunciation or apostasy (urb al-Riddah ārij).
1
Norman Davies, Europe at War 1939–1945: No Simple Victory (London: Pan Books, 2006), 271.
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Islamic international humanitarian law requires that differences between these armed conflicts be
understood since different categories of prisoners fall under different Islamic legal edicts
regarding these armed wars2.
QUR’ĀNIC INJUNCTIONS ABOUT IMPRISON IN ARENA:
The first and most important thing to note is that, in accordance with Islamic law, it is acceptable
to hold prisoners of war as it is stated in the Qur'an: "And take them captive, and besiege them"
3
and "And then tighten their ties." In the sake of the Islamic state, Muslim jurists defer to the
political authority's judgement when deciding whether to hold hostages during a conflict. The
alternatives accessible to the Islamic state to end the war imprisonment, however, are disputed
among Islamic jurists.
TERMINATION OF WAR CAPTIVITY & ISLAMIC LEGISLATIVE DISCOURSE:
Numerous rules regarding the immunity of the prisoner and the end of captivity are found in
Islamic law. The five means of freeing oneself from captivity in war are consecutively freedom
gratis (Mann), ransom (Fid'), exchange of prisoners of war, execution, and servitude.
In accordance with this, "hiriyyah and Imm Awz" allude to five different methods, including
(i)execution,
(ii) enslavement,
(iii) ransom, and
(iv) granting conditional freedom.
Malik's jurists provide the following alternatives according to this hierarchy: execution,
enslavement, freedom with restrictions, and ransom (Jizyah) 4According to Al-Hll (of the Shi'ah
Imamiyyah), the Imam has just three options:
Free Will (Mann), Ransom (fid), or Slavery.5
2
Ahmed Al-Dawoody, “Al- Sarakhsī’s Contribution to the Islamic Law of War”, UCLA Journal of Islamic and
Near Eastern Law, 14, no.1 (2015): 37–43
3
Al-Qur’ān 9: 5, Tranlation of the verses of Quran in this work is by Muhammad Asad, The Message of the Quran
(Wiltshire: Dar Al-Andalus, 1984).
4
Abū ’I-Walīd, Muḥammad bin Aḥmad bin Rushd, “The Distinguished Jurist’s Primer: A Translation of Bidāyat
Al-Mujthid”, henceforth,The Distinguished Jurist’s Primer, trans. Imran A.K. Nayazī (Reading: Garnet Publishing
Ltd. 1994), 1: 456.
5
Al-Ḥilalī, Sharā’i‘ al-Islām (Cairo: Dār al-Kutub al Miṣriyyah, 1996), 1:250-251
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The legislation of the Shi prohibits execution in a prison setting. 6These have been briefly
explored in the previous conversation.
FREEDOM GRATIS:
The whole military history of Islam attests to the fact that freeing prisoners of battle is standard
practise. The actions of the Prophet Muhammad (peace be upon him) and his correctly guided
successors towards the end of war captivity provide important guidance in this respect. Due to
the lack of time, only a few examples of POWs being allowed freedom without receiving any
tangible benefits are being given, such as the release of Thumamah B. Athal and his colleagues
80 combatants. When Iraq was seized, he also released thousands of Iraqis before deciding to
impose jizyah on them. According to Abu 'Ubayd, ransom was only ever demanded once, from
the Badr POWS. The Prophet later released captives from jail7.
He states, "The later precedence from the Prophet (peace be upon him) ought to be followed,"
because as we all know, the Prophet began pardoning people after Badr8. This demonstrates that
releasing prisoners of war unconditionally was the Prophet's (peace be upon him) and his
Caliphs' standard practice.
RANSOM:
The direction of the Qur'an mentions ransom as another possibility in verse 47:4. According to
reliable commentators' interpretations of this passage, it was revealed at the Battle of Badar:
This passage describes captivity as a temporary state that must end in either unconditional,
conditional, or liberation obtained via payment of ransom. 9The verses 8: 67-8 were reportedly
revealed on the day of the Battle of Badr when Muslims were numerically weak, according to
Ab'Ubad alQsim b. Sallam (d. 229/837). When the Muslim population rose and their influence
grew, Allah Almighty gave the command to "let them free," either via an act of mercy or in
exchange for a ransom, to lighten the burden of battle. 10The Prophet (peace be upon him) asked
his Companions for advice because this was a circumstance they had never seen before. The
majority believed that they should be ransomed since the Muslims of the time required financial
assistance. However, 'Umar b. al-Khab petitioned for their execution. The fact that there was no
6
A‘zamī, Muḥammad Muṣṭafā, Studies in Ḥadīth Methodology and Literature, (Indiana: Indianapolis, 1997), 151.
7
Shiblī Nu‘mānī and Sayyid Suaimān Nadvī, Sīrat al-Nabī (Lahore: Al
Faisal Nāshirān, n.d.), 1: 252-53
8
Al-Balādhurī, Kitāb Futūḥ al-Buldān, Trans. Francis Clark Murgotten (New York: Columbia University, 1924),
2:116-120.
9
For more interpretation see: Muḥammad b. Aḥmad al-Qurṭubī, Al-Jāmi‘ li Aḥkām alQur’ān (Cairo: Dār al-Kutub
al Miṣriyyah, 1950), 9:150
10
Abū ‘Ubayd bin Sallām, Kitāb al-Ammwāl, (Cairo: Maṭba‘t al-Minār, 1346 AH), 4: 221.
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explicit divine mandate about POWs was the main issue. The Prophet adopted the consensus's
recommendations.11 Al b. Abilib (d. 40AH/661AC) said that the Prophet (peace be upon him)
presented his Companions with two choices.12 The Prophet (peace be upon him) says in a
different hadith on war's spoils that "he has been endowed with five things that were not given on
any Prophet before him, One of these is the fact that he legitimised for his group what others saw
to be unjustifiable loot from unbelievers.However, until that point, there had been no discovery
confirming its legality.13thus, whenThe Prophet (peace be upon him) made the decision to free
the prisoners of war.
Some of the Prophet's (PBUH) companions believe that when a pagan captive is released without
receiving any pecuniary benefit, it may be feasible to convert to Islam. One thing must be clear
to us: even the slightest intention of pursuing monetary gain was seen as a breach of obedience in
the absence of compelling scriptural proof to the contrary. This verse only exhorts Muslims to
engage in fierce combat and states that Muslims should not take any prisoners before engaging in
fierce carnage that kills and weakens the adversary. It emphasises the killing of non-Muslims
during combat. The warning provided in the verse above, according to Imam Fakhr al-Din al-Rz
(d. 606/1210) in al-Tafsr al-Kabr, does not apply to all people.
LEGISLATIVE DISCOURSE ON RANSOM AND EXCHANGE OF PRISONER:
There is a jurisprudential debate over ransom among Islamic jurists from the four Sunni schools
of thought. This section discusses the views of Islamic lawmakers and jurists on holding
prisoners of war for ransom. Legislators from the "anaf" party dispute on whether to release
prisoners for a ransom (fid) or a fee. Because the hostile force would be strengthened and
because the Qur'anic verse 9:5 asking for the slaughter of the adversaries has a broad
interpretation, Ab' An'fah forbids ransom (releasing them in exchange for money). As a result,
after the holy months are complete, kill everyone you come across who claims to be God other
than Allah Almighty. You should also capture them, besiege them, and lay in wait for them
anywhere imaginable.
But Ab Ysuf and Shaybn approve of it.Shaybn consents to this if required. Both parties consent
to exchanging POWs for enemy POWs. The 'anf' scholars contend that verse 47:4, which
references free will and ransom (fid), is superseded; nonetheless, they concur that fid (ransom) is
permitted if the political authorities deemed it suitable or if the Muslims were in need of money
and desperate measures. Ransom is one of the choices accessible to the political power,
11
Muslim bin Ḥajjāj, Ṣaḥīḥ Muslim, Kitāb al-Jihād wa ’I-Siyar, Bāb al-Imdād bi ’I-Malā’ikah, (Riyaḍ: Dār al-
Salām, 1998), 782
12
Mufti Muhammad Shafī‘, Ma‘āriful-Qur’ān (Karachi: Maktaba-e-Darul-‘Ulūm, n.d.), 4: 274.
13
Abū ‘Abd Allāh Muḥammad bin Ismā‘īl al-Bukhārī, Ṣaḥīḥ al-Bukhārī, Kitāb al-Ṣalāh, Bāb Qawal al-Nabī (Riyaḍ:
Dār al-Salām, 1999), 76.
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according to Imam Mlik b. Anas, Muhammad b. Idris al-Shf' , Sufyan b. Sa'd al-Thawr , and Abd
al-Rahman al-Awz . They disagree with Ab'Ubad, who claims that the Prophet (peace be upon
him) was the only one to use this choice.
Only a handful of the POWs from the fight of Badr described above were liberated after he
ransomed them.Those who could not afford to pay were forced to instruct Muslim
youngsters.receive their freedom as payment. His most recent method was mann (releasing
them).gratis), and this latter precedent shall prevail. This view has the support of ‘Abd
Allāh.‘Abbās (, ‘Abd Allāh b ‘Umar, Ḥasan al-Baṣarī, and ‘Aṭa b. Abi Rabaḥ
EXECUTION & LEGISLATIVE DISCOURSE:
In terms of the execution of war captives according to Islamic military rules, the prophet of Islam
(PBUH) killed just three people throughout his lifetime. At the battle of Badr in March 624 AD,
they were al-Naar ibn al-rith and Uqbah ibn Muay, 14 and Ab-Azzah al-Juma at the battle of 'Uud
in March 636 AD. The Prophet (PBUH) granted Abuzzah's request to be freed on the condition
that he would never fight against Muslims after he was first captured at the Battle of Badr in the
year 25 AD. This is in accordance with Islamic historical evidence. again.
He broke his oath, in violation of which he was executed after being taken a second time during
the Battle of 'Uud the following year. .3 8 It is apparent that these three people had committed
horrific crimes against Muslims and the Islamic state before their imprisonment, therefore they
were not just POWs, regardless of the veracity of these reports or whether these detainees were
executed during conflicts or after their arrest. The political power, according to legislators of the
"anaf" school of thinking, has three possibilities to end POWs' imprisonment. Execution,
enslavement, and release on the condition that they pay Jizyah are these (poll-tax) They argue
with one another over the ran
ENSLAVEMENT:
Another method of holding control is to enslave prisoners of war. Ab'Ubayd believes that the
Prophet did not use POWs as slaves (PBUH). The pre-Islamic slaves were set free by 'Umar b.
al-Khattb, who also gave their children and grandchildren back to their family. He freed the
slaves after paying 400 drams or five camels for each one and declared, "An Arab should not be
enslaved". Thus, it demonstrates that slavery was not a frequent alternative. Since Ban Qurayah's
women and children were subjected to slavery as a result of arbitration, this enslavement goes
against Islamic war prohibitions. In previous wars, the Prophet (peace be upon him) refrained
14
Muḥammad ibn ʻUmar al-Wāqidı,̄Kitāb al-Maghāzı,̄ ed. Muḥammad ʻAbd al-Qādir ʻAtạ̄, (Beirut: Dāral-Kutub al-
ʻIlmiyyah, 2004), 135, 263.
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from enslaving the POWs. The hostility of Caliph 'Umar against slavery is widely documented.
It is somewhat astonishing that the majority of Muslim scholars claim that, in addition to mann
and fid', the Muslim king also has the option of enslaving the wives and children of his enemies.
However, they only use one instance, that of Ban Qurayzah, to bolster their argument.The
arbitrator's judgement applied solely to that particular case and was only binding on the parties. It
can't go any farther than that. Additionally, as previously said, this judgement was in accordance
with Jewish law, which is why it was approved. They could have been forced into slavery
because they lacked someone to take care of them. Enslavement was, thus, the best alternative
for Ban Qurayah's women and children under particular circumstances; nevertheless, this
decision cannot be generalised. According to Wabah al-Zuhayli, the practise of using women and
children as slaves dates back to ages before the advent of Islam and is based on reciprocity. Islam
just changed this possibility and placed certain limitations on the slavery of women and children.
EXECUTION OF POWS: EXCEPTION OR A GENERAL RULE?
Whatever the case, it is certain that the Prophet (peace be upon him) personally engaged in both
ransom and exchange of the POWS when he swapped one non-Muslim for two Muslim hostages
and a non-Muslim lady for several Muslim captives. The corpus juris of the "anaf" school was
codified by the orthodox Islamic jurist Muhammad b. al-asan al-Shaybn (d. 189/804), who held
that freeing prisoners of war is permissible if the political authority believes it to be in the best
interests of the community because the Prophet (peace be upon him) had freed Thummah bin
Athil The "anaf" scholars also concur that non-Muslim POWs may all be set free as long as their
persons and land are subject to jizyah and kharj, respectively, as were the people of Iraq under
the rule of "Umar b. al-Khab" (d. 23/644). As a result, the "anafs" trust political leadership to act
in the Muslim community's best interests while deciding the fate of POWS15.
IIHL AND POW’S IMMUNITY:
Regarding how prisoners of war are treated while they are held captive, Islamic law is incredibly
tolerant. When Makkah was conquered, the Prophet (PBUH) declared a broad amnesty for
everybody who laid down his arms, but he omitted seven to nine people48, who were all alleged
to have committed heinous crimes against the Muslim state and its residents prior to their
capture.But just one person—'Abd Allah b. Khatam—was put to death. He was the Prophet's
(peace be upon him) companion in Madinah, where he had been a Muslim, and he had
dispatched him to a certain tribe to collect Zakt. A servant was sent by the Prophet (peace be
upon him) to assist him.
15
Al-Shybānī, Kitāb al-Siyar al-Kabīr, 6: 101
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M. 'Abd Allah murdered that servant under the pretence that he had prepared terrible food for
him, travelled to Makkah, renounced Islam, embezzled the money he had amassed, and then
purchased two concubines who would sing songs that were insulting to Islam and Muslims. By
siding with the enemy and creating a new front of hostility and bigotry against Muslims, he
committed high treason. He was executed, presumably in part because he refused to repent of his
terrible deeds. He could have received forgiveness from the Prophet (peace be upon him), just
like so many other people who changed their ways. When they or their family members asked
the Prophet (peace be upon him) for forgiveness, all other people wanted by the Muslim state
were pardoned.
Assigning the POWs of Badr to his Companions, the Prophet (peace be upon him) urged them to
"Take attention to the suggestion to treat the prisoners decently." Many Muslim households
therefore continued to be pleased with dates and served the inmates their best meals while they
merely consumed dates. The Qur'an extols their behaviour. Thummah bin Uthl received food and
milk from the Prophet Muhammad's (PBUH) home.16
16
Muḥammad bin ‘Alī al-Shawkānī, Nayl al-Awṭār (Cario: Al-Maṭb‘ah al-‘Uthmāniyyah, 1957),
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GUIDANCE UNDER CIHL
In this section, is it possible or not to bring charges under Conventional International

Humanitarian Law (CIHL) against POWs who are suspected of crimes against the state and war
crimes of the kind indicated above? The 1949 Geneva Convention III pertaining to POWs
adopted a similar stance in its Article 15, which grants the detaining power the ability to punish a
POW for crimes committed against (the Detaining power's) law previous to his detention. The
Geneva Convention III's Article 118 states that at the end of active hostilities, prisoners of war
must be immediately freed and sent home.17 However, the interpretation of the end of active
hostilities is seldom without controversy. According to Article 21 of the Geneva Convention III,
POWS may be released on promise or parole provided the laws of the detaining power permit it.
According to Article 21, the prisoners freed under these circumstances will be obligated, on their
own honour, to strictly fulfil the engagement of their paroles or commitments, both toward the
Power on which they rely and the Power which has caught them.
As a result, honesty is crucial to the effective implementation of humanitarian laws. In

accordance with Articles 109 and 110 of the Geneva Convention III relative to Prisoners of War,
those who are ill or injured and are not expected to make a full recovery within a year may be
repatriated while hostilities are ongoing. Therefore, the release and repatriation of POWs is a
requirement of any armistice agreement or prolonged cessation of hostilities.18
17
Articles 109 and 111 of Geneva Convention 3rd of 1949.
18
Death sentence for a POW is discussed in Article 100 of Geneva Convention 3rd of 1949. For more detail, see: A.
Roberts and R. Guelff, Documents on the Laws of War (Oxford: Clarendon Press, 1982), 215-270; Nigel Rodely,
The Treatment of Prisoners under International Law (Oxford: Clarendon Press, 1987).
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SUGGESTION
The following suggestions are successful in easing POW suffering during or after the armistice
or cessation of hostilities:
 The promotion of knowledge and comprehension of humanitarian laws in both eastern

and western educational and research institutions, such as the American Schools of
Oriental Research (ASOR), Rand Corporation, etc., is urgently needed today.
 The promotion of academic studies that focus on the rights of war prisoners is necessary.
This should, for instance, encourage the teaching of IHL in law schools and armed
services academies, such as those for the military and police, in sovereign governments
all over the world at both the undergraduate and graduate levels.
 Instead of concentrating primarily on the historical issues covered by classical cultural
study, the power corridors must approach the intellectual locus of modern armed conflict
and the present difficulties in this area. Researchers, religious figures, academics,
decision-makers in government, and think tanks should focus on this area.
 To encourage a culture of equality and respect for human rights, society urgently needs to
foster public awareness. On the other side, it must shame the actions of opposing and
punishing racist, extreme, sectarian, and xenophobic viewpoints.
CONCLUSION
This study's major objective is to discuss the choices open to a prisoner of war to terminate his
imprisonment in the context of the war on terror in Afghanistan from 2001 to 2021, taking into
account both Islamic and Conventional International Humanitarian Law (CIHL). According to
both international treaties, there are five ways to end a wartime prisoner's captivity: free will
surrender, ransom, prisoner-for-prisoner exchange, execution, and enslavement.
There are primarily two ways to end a wartime prisoner's captivity, according to Qur'anic
injunctions: ransom and liberation in exchange for nothing. The traditional Muslim jurists
disagree on how to interpret the scriptures that came before them about what would happen to
POWs. Ab Ubad said that ransom was only ever demanded once, from the Badar POWs.
Following this episode, the Holy Prophet generally forgave captives of battle. According to his
justification, "the Prophet's (peace be upon him) following instance will be followed." Later, his
(PBUH) successors took the initiative to liberate POWs without expecting any monetary
compensation. Few POWs were given the death penalty during all of the armed campaigns of the
Prophet of Islam (PBUH) as a result of serious crimes they had committed against the fledgling
Islamic state prior to their capture.
Page 16 of 19
The outcome of the mediation between the Jews and the Muslims was the execution of the Bani
Quraah warriors. Regarding this arbitration, a few points need to be kept in mind. First, Ban
Quraah appointed Sa'd bin Mu'z as the arbiter. Second, this arbitration ruling was solely based on
Jewish tenets.
Ab Ysuf and al-Sarakhs, an anaf jurist, claim that the state leader has the authority to determine
whether to carry out the death sentence for war captives. The top command of the state armed
forces is not permitted to use this power. These numerous proofs demonstrate that Islamic law of
war does not generally permit executions.
In 1949, Article 85 of the Third Geneva Convention, which governs international humanitarian
law, explicitly outlined comparable behaviour for Second World War prisoners. The
summarization of which is that the detaining authority has the right to punish a war prisoner for
offences against the detaining power's legislation committed before his capture.
Regarding the ransom, the Prophet of Islam (PBUH) and Khulaf-e-Rshidn generally rescued
prisoners of war without asking for a fee. It could be tolerated under certain circumstances. The
deed of 'Umar bin 'Abd al-'Azz is a model of a ransom that has been paid. At the time, he
mandated a ransom to be paid to the Greeks in order to rescue Islamic state citizens who had
been imprisoned by the Greeks. It implies that non-Muslim nations may likewise demand a
ransom in order to free their citizens who may be held as POWs by an Islamic nation.
Throughout terms of POW-to-POW exchanges, this strategy was occasionally used in Islamic
military history. The Islamic state has not chosen to use the option of enslaving POWs. In this
aspect, the two examples are not from Islamic law. The first instance is the enslavement of Ban
Quraah's wives and children. The arbitration decision led to Ban Quraah's captivity, as was
previously described. The slavery of Hwzin and Ban Mualaq is a second instance. In their
situation, the POWs' liberation was granted without requiring any materialistic benefits.
Page 17 of 19
BIBLIOGRAPGHY
A‘zamī, Muḥammad Muṣṭafā. Studies in Ḥadīth Methodology and Literature. Indiana:

Indianapolis, 1997.
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Abū ’I-Walīd, Muḥammad bin Aḥmad bin Rushd. “The Distinguished Jurist’s Primer: A
Translation of Bidāyat Al-Mujthid”, henceforth, The Distinguished Jurist’s Primer, trans. Imran
A.K. Nayazī. Reading: Garnet Publishing Ltd. 1994.
Ahmad Zaki Yamni. “Humanitarian Law in Islam: A General Outlook”, Michigan Yearbook of
International legal Studies, 7 (1985), 189-215.
Al-Balādhurī. Kitāb Futūḥ al-Buldān, Trans. Francis Clark Murgotten. New York: Columbia
University, 1924.
Al-Bukhārī, Abū ‘Abd Allāh Muḥammad bin Ismā‘īl. Ṣaḥīḥ al-Bukhārī, Kitāb al-Ṣalāh, Bāb
Qawal al-Nabī. Riyaḍ: Dār al-Salām, 1999.
Al-Dawoody, Dr. Ahmed. “Islamic law and international humanitarian law: An introduction to
the main principles” International Review of the Red Cross, 99: 3, (2017), 995–1018.
Al-Ḥilalī. Sharā’i‘ al-Islām. Cairo: Dār al-Kutub al Miṣriyyah, 1996. Al-Jaṣṣāṣ, Abū bakar.
Aḥkām al-Qur’ān. Beirut: Dār al-Fikr, 2001.
Al-Kāsānī, ‘Alā’ ud-Dīn Abū Bakr. Badā’i‘ al Ṣanā’i‘. Beirut: Dār Iḥyā’ al-Tuārth al-‘Arabī,
2000.
Al-Nawawī, Muḥyı̄ ud-Dīn ibn Sharaf. Al-Majmūʻ Sharḥal-Muhadhdhab, ed. Maḥmūd Matrajī.
Beirut: Dār al-Fikr, 2000.
Al-Nawawī, Yaḥyā bin Sharaf. Sharaḥ Ṣaḥīḥ Muslim. Cairo: Maṭba‘at Maḥmūd Tawfīq, n.d.
Al-Qurṭubī, al-Jāmi‘ li. Aḥkām al-Qur’ān. Riyaḍ: Dār al-Salām, 1998.
Al-Qurṭubī, Muḥammad b. Aḥmad. Al-Jāmi‘ li Aḥkām al-Qur’ān. Cairo: Dār al-Kutub al

Miṣriyyah, 1950.
Al-Rāzī, Fakh al-Dīn. Mafātīḥ al-Ghayb known as al-Tafsīr al-Kabīr (Cairo: Maṭbu‘āt
alKhayiryyah, 1307 AH), 15:200
Al-Shawkānī, Muḥammad bin ‘Alī. Nayl al-Awṭār. Cario: Al-Maṭb‘ah al-‘Uthmāniyyah, 1957.
Al-Shybānī. Kitāb al-Siyar al-Kabīr, Riyaḍ: Dār al-Salām, 2006.
Page 18 of 19
Page 19 of 19

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PROJECT ON ISLAMIC INJUCTION ON PRISONER’S IMMUNITY AND TERMINATION

OF CAPATIVITY OF WAR: CASE STUDY OF AFGANISTAN

NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

SUBJECT – INTERNATIONAL HUMANITARIAN LAW

TOPIC – ISLAMIC INJUCTION ON PRISONER’S IMMUNITY AND

Submitted to: Submitted by:

Mr. Ayush Jaiswal Deepti Uikey

Assistant Professor 2019BALLB122

Signature of the Student Signature of the faculty concerned

FOUNDATION OF ISLAMIC LAW......................................................................................................8

ISLAMIC LEGISLATIVE TERMS ABOUT ARMED CONFLICT:.....................................................8

1. Freedom granted without compensation. It is known as Mann in Islamic legislative literature.

2. Fidā’ (ransom alone or with supplements) (ransom alone or with supplements)

3. The exchange of prisoners of war

6. This study's conclude consists of a comparison between IIHL and CIHL.

 What is the legislation of termination of war captivity incorporate with Principles of

 What is the debate related to such as protection of civilians and non-combatants,

CONCEPT OF PRISONERS OF WAR

FOUNDATION OF ISLAMIC LAW

ISLAMIC LEGISLATIVE TERMS ABOUT ARMED CONFLICT:

QUR’ĀNIC INJUNCTIONS ABOUT IMPRISON IN ARENA:

TERMINATION OF WAR CAPTIVITY & ISLAMIC LEGISLATIVE DISCOURSE:

(iii) ransom, and

(iv) granting conditional freedom.

Free Will (Mann), Ransom (fid), or Slavery.5

LEGISLATIVE DISCOURSE ON RANSOM AND EXCHANGE OF PRISONER:

EXECUTION & LEGISLATIVE DISCOURSE:

EXECUTION OF POWS: EXCEPTION OR A GENERAL RULE?

IIHL AND POW’S IMMUNITY:

GUIDANCE UNDER CIHL

In this section, is it possible or not to bring charges under Conventional International

As a result, honesty is crucial to the effective implementation of humanitarian laws. In

 The promotion of knowledge and comprehension of humanitarian laws in both eastern

A‘zamī, Muḥammad Muṣṭafā. Studies in Ḥadīth Methodology and Literature. Indiana:

Al-Qurṭubī, al-Jāmi‘ li. Aḥkām al-Qur’ān. Riyaḍ: Dār al-Salām, 1998.

Al-Qurṭubī, Muḥammad b. Aḥmad. Al-Jāmi‘ li Aḥkām al-Qur’ān. Cairo: Dār al-Kutub al

Al-Shybānī. Kitāb al-Siyar al-Kabīr, Riyaḍ: Dār al-Salām, 2006.

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