The International Union for Muslim Scholars rules on hostage taking

Fatwa, posted 4.22.2010, from Ireland, in:

Kidnapping and hostage taking are not an invention of our modern times. They go back far in history. But they have become more and more frequent these days because of the grave injustice suffered by weak and oppressed communities at the hands of powerful countries seeking to impose their will on them. Moreover, these oppressed communities seldom have adequate means and weapons to repel aggression. Since some Muslims are resorting to such methods at an increasing rate, thus going beyond the limits of what is lawful, we wish to make the issue surrounding this very clear. This ruling, or fatwa, sums up all the Islamic rules that apply to such acts:

1. Kidnapping is a form of aggression against others, whether they are Muslims or non-Muslims. It is a type of transgression which Allah has prohibited, as He says in the Qur'an: "Allah enjoins justice, kindness to all, and generosity to one's kindred; and He forbids all that is shameful, reprehensible conduct and all transgression." (An-Nahl 16: 90) It is well known that the order to ensure justice extends to kindness and being generous to one's kindred and it is not limited to Muslims only. Similarly, the prohibition of what is shameful, and reprehensible conduct and transgression applies to all humanity. By nature, man is keen to repel any aggression directed at him, but Allah permits the repelling of aggression by similar means only. This is stated in the Qur'an: "If anyone commits aggression against you, attack him just as he has attacked you. Have fear of Allah, and be sure that Allah is with those who are Allah-fearing." (Al-Baqarah 2: 194) "Fight for the cause of Allah those who wage war against you, but do not commit aggression. Indeed, Allah does not love aggressors." (Al-Baqarah 2: 190) Allah also makes it clear that religious differences do not justify aggression against anyone, even though they may reach the stage of open conflict: "Do not let your hatred of people who would debar you from the Sacred Mosque lead you into aggression." (Al-Ma'idah 5: 2)

2.Kidnapping is an act of war. If it could be exceptionally permissible during war, it is totally forbidden in all other situations:

* In his commentary on the Qur'an, At-Tabari quotes the following hadith: "The Prophet (peace and blessings be upon him) came to Makkah to perform `Umrah. His Companions arrested some local people taking them unaware. The Prophet (peace and blessings be upon him) ordered them to be released." We see that the Prophet did this, releasing unbelievers who were taken prisoner, because he did not consider himself in a state of war with the unbelievers, as his purpose was to perform `Umrah.

*Similarly the Prophet (peace and blessings be upon him) did not sanction what one of his Companions, Salamah ibn Al-Akwa`, did when he kidnapped four unbelievers after the signing of the peace treaty at Al-Hudaybiyah. Salamah did so thinking that the unbelievers had already violated this peace treaty. The Prophet, however, said: "Leave them so that they will be the ones who initiate evil and repeat it." (Reported by Muslim)

This means that initiating evil is a characteristic of unbelievers. It must never be a characteristic of Muslims. Muslims may repel evil by using a similar measure, but their purpose in doing so is not to retaliate; rather, it is to prevent any repeat of the evil committed against them, and to totally remove it from the domain of human relations. The Qur'an outlines the best method that ensures the prevention of evil, clarifying that forbearance and forgiveness is certain to stop evil actions: "Good and evil cannot be equal. Therefore, repel evil with that which is best, and then, a person between whom and yourself there was enmity may become a close and true friend." (Fussilat 41: 34) "Repel evil with that which is best." (Al-Mu'minun 23: 96) Muslims are described in the Qur'an as those who "repel evil with what is good." (Ar-Ra`d 13: 22)

On the basis of these points we state that it is forbidden to kidnap any human being in any situation other than open warfare, when the kidnapped person becomes a prisoner of war who must not be killed. Indeed, that person must eventually be released, as the Qur'an states: "Thereafter, set them free, either by an act of grace or against ransom." (Muhammad 47: 4) Needless to say, it is forbidden to kidnap anyone who is opposed to a war that has been launched against us, or is sympathetic to us, such as the two French journalists. We denounce all cases of kidnapping where the victims have nothing to do with the occupation of Muslim land. They must be released immediately.

3. In the case of war, it is not permissible to kidnap innocent or enemy civilians who must not be made a target of any act of war. From the Islamic point of view, civilians are those who are non-combatants, such as women and children, as well as elderly men who have no role in the fighting, and priests. The Prophet (peace and blessings be upon him) has given an express order "not to kill women and children." (Reported by Al-Bukhari and Muslim) He also said: "Do not kill any young person." (Reported by Abu Dawud) In an order to Khalid ibn Al-Walid, the commander of the army, he said: "Never kill a child or an employee." (Reported by Ibn Majah) This last order includes anyone who is employed in non-combat capacity, such as factory workers, medical personnel, and the like. The Prophet (peace and blessings be upon him) also highlighted the prohibition of killing an elderly man, a priest, or a hermit dedicated to worship. The same prohibition of killing elderly men is confirmed by Abu Bakr. Moreover, Jabir ibn `Abdullah, the Prophet's Companion, is quoted as saying that Muslims "did not kill business people who were unbelievers." The majority of scholars in the Hanafi, Maliki, and Hanbali schools of Islamic law extend this prohibition, on the basis of analogy, to include other non-combatants, such as those who are physically or mentally handicapped, and those who lock themselves in a house or a church, labourers, farmers, and tradesmen. Imam Ash-Shawkani has formulated a clear rule of analogy on this particular issue. This rule makes it clear that "it is unlawful from the Islamic point of view to kill anyone who is of no benefit to the enemy and cannot do the Muslims any harm."

Therefore, we denounce taking school children as hostages as was done in the school in North Ossetia, leading to a horrific massacre, despite the fact that we believe the Chechens have a just cause and that they have the right to self determination. We also denounce the kidnapping of two Italian women working for a humanitarian agency, at the same time that we condemn the Italian government's policy of alliance with US aggression against Iraq. All such incidents are unlawful from the Islamic point of view. In addition, such incidents do not serve the interests of resisting the occupation of Iraq. In this connection we should remember that when the Jews of Banu Qurayzah committed a horrific act of treachery, violating their peace treaty with the Prophet (peace and blessings be upon him) and allying themselves with the aggressors who had declared their aim to annihilate the Muslim community, such treachery did not compel the Muslims to kill Jewish women and children or expose them to any danger.

4.Should kidnapping take place during times of war, those who are kidnapped become prisoners of war and must be treated according to the relevant Islamic rules, which can be summarized as follows:

1.Prisoners of war must be handed over to Muslim authorities to determine what is to be done with them. Those who actually take them prisoner do not have any authority over them and cannot determine their fate.

2.It is an important Islamic duty to treat prisoners of war kindly and gently, be hospitable to them, and provide them with food and clothing. They must never be subjected to ill-treatment or torture. Allah says in the Qur'an: "They [i.e. the believers] give food - however great be their own want of it - to the needy, the orphans and the captives." (Al-Insan 76: 8) The Prophet (peace and blessings be upon him) gave this general order: "Be sure to treat captives kindly." (Reported by At-Tabarani) He is also reported to have said: "Be kind to your prisoners, and let them have their afternoon rest, and provide them with water to drink." He is also quoted as saying: "Do not compound their suffering of today's heat with the hardship of your arms." After the Battle of Badr, the Prophet (peace and blessings be upon him) ordered that those unbelievers who had been taken captive should be treated kindly. Complying with his order, his Companions would give the captives their food before they themselves ate.

3.Eventually, according to Islam, captives must be released, either by an act of grace that requires nothing in return, or in return for ransom which could be monetary, or through prisoner exchange, or in the form of a service they render to the Muslim community. The Prophet (peace and blessings be upon him) asked some of those who had been taken prisoner at the Battle of Badr to teach some Muslims to read and write in return for their release. This is clearly stated in the Qur'an: "When you meet unbelievers in war, smite their necks until you overcome them fully, and then tighten their bonds; but thereafter set them free, either by an act of grace or against ransom, so that the burden of war may be lifted." (Muhammad 47: 4) The Prophet (peace and blessings be upon him) put the instructions contained in this verse in practice till the end of his life. Indeed, many scholars rule that it is forbidden to kill a captive of war. In his priceless book, Bidayat Al-Mujtahid, Ibn Rushd says: "A number of scholars say that it is not permissible to kill a captive. Al-Hasan ibn Muhammad At-Tamimi says that it is the unanimous view of the Prophet's companions." In his commentary on the Qur'an, Ibn Kathir states: "Scholars say that the Muslim ruler's only choice is to set captives free, either as an act of grace or against ransom, but it is prohibited to kill a captive." Al-Alousi says: "The apparent meaning of the Qur'anic verse is that it is forbidden to kill a person after taking him prisoner. This is the ruling expressed by Al-Hasan."

On the basis of the previous points, we say that a captive can only be killed in exceptional circumstances, by an order of the head of the Muslim state made on the basis of a court sentence. The groups operating within armed resistance to the occupation of Iraq or elsewhere do not have the right to exercise the power of the head of a Muslim state. Moreover, killing captives is bound to have adverse effects on the resistance to the occupation, and give the cause of the Iraqi people and their struggle a negative image. We, therefore, denounce the killing of the Nepalese and other captives who did not take part in the fighting. If it were true that they provided service to the occupation forces, such service does not justify their death.

5.It is unlawful from the Islamic point of view to take enemy civilians as hostages and threaten to kill them in retaliation for any action committed or omitted by anyone else, when they are not responsible for such an action and are unable to prevent it. This applies to the case of the school in North Ossetia where school children and teachers were held hostage. This prohibition is based on two factors:

1.One of the basic principles of justice is that no one should be held accountable for someone else's action or offence. This is a basic Islamic rule emphasized in several verses of the Qur'an, such as: "Whatever wrong any human being commits rests upon himself alone." (Al-An`am 6: 164) "No one shall be made to bear the burden of another." (Al-Israa' 17: 15) "Whoever does what is just and right does so for his own good; and whoever does evil, does so to his own hurt." (Fussilat 41: 46) "He who does evil shall be requited for it." (An-Nisaa' 4: 123) The Prophet (peace and blessings be upon him) has re-emphasized this in several traditions, such as: "Anyone who commits an offence will be the only one to bear its consequences." (Reported by Ibn Majah) "No one shall bear responsibility for another's crime." (Reported by An-Nasa'i and Ibn Majah) A number of statements by the Prophet (peace and blessings be upon him) make clear that non-Muslims who have a treaty with Muslims must never be killed. One of these statements says:, "Whoever kills a man bound with a treaty, without a valid cause, shall never be allowed even the smell of heaven." (Reported by An-Nasa'i)

2.At times of war, it may happen that some civilians are killed as a result of some operations, as in the case of a raid launched against an enemy concentration resulting in the death of some people nearby. Scholars say that this is acceptable provided that it is unintentional. But to deliberately kill civilians is certainly forbidden. How, then, can the murder of captives in cold blood be justified when enemy civilians are not to be targeted even in times of war?

It is contrary to Islamic ethics to sink to the uncivilized level of the occupation forces in Iraq, which has so far killed thousands of Iraqi civilians, including large numbers of women, children, and elderly people, under the pretext of fighting the resistance to their occupation.

It is incumbent on all Muslims to observe the Islamic rules summarized above.