Treatment of Prisoners of War
by Dr. Muhammad Hamidullah
Reproduced from Ch. XV of The Muslim Conduct of State 7th
edition, Sh. Muhammad Ashraf, Lahore, Pakistan by Dr. Muhammad Hamidullah
(435) This subject naturally falls into two parts, viz. Muslim soldiers
or other soldiers made captive by the enemy, and the subjects and soldiers
of the non-Muslim power taken prisoners by the Muslims (see also infra,
The Muslim Prisoner
(436) A Muslim prisoner is bound to observe faithfully his parole and
honour. If, however, he [were] given no parole, he is at liberty, and if
[he] likes and is able, [might] escape or otherwise do harm to his captors.
(437) As regards Muslim subjects, it is the duty of the Muslim State
to seek their release by giving money from the public treasury. The Qu'ran
clearly [states] that a portion of the State income is to [be] allotted
freeing the necks, which his interpreted as aiding the prisoners
and slaves to get themselves freed. There are clear Traditions [Hadith]
of the Prophet also to the same effect recorded by Bukhari and others;
for instance: "Manage to the release of the prisoner." As regards practice,
I have not found any precedent of the time of the Prophet when ransom was
paid for the release of Muslim prisoners. Exchange of prisoners will, however,
be dealt with later. The Caliph 'Umar, however, ordered, "Every Muslim
prisoner in the hands of non-Muslims must be relieved by means of the Muslim
(For the dhimmis taken prisoner,
see above 210). Regarding later times, al-Mas'udi and al-Maqrizi record
and describe more than half a dozen general releases of Muslim prisoners
by their enemy. Historians of foreign countries have also recorded it.
Finlay, for instance, says: "Regular exchange of prisoners with the Muslims
commenced as early as the reign of Constantine V, 769 C.E. ([a] contemporary
of the 'Abbasid al-Mansur). In the year 797 (i.e. under Harun ar-Rashid)
a new clause was inserted in a treaty for the exchange of prisoners, binding
the contracting parties to release all supernumerary captives on the payment
of a fixed sum for each individual."
(438) Their wills and testaments, when received in Muslim territory,
are valid and should be executed for the property of the deceased Muslim
prisoner situate in a region under Muslim jurisdiction.
Enemy Prisoners Captured by Muslims
(439) As regards taking prisoners, there are two Quranic verses:
(ii) "It is not for any Prophet to have captives until he hath
routed (the enemy) in the country."
In both of these verses the verb occurs which means "to route," "to dominate,"
"to subjugate". Al-Mathurdi commenting on the latter verses gives it similar
Until he makes ithkhan in the country, that is, he dominates,
it. So that when he has received the ransom and lets them go free after
having dominated the country in order that they return to a place where
there is no utility and no association (for them).
(440) According to Muslim law, a prisoner qua prisoner cannot be
killed. Ibn Rushd even records a consensus of the Companions of the Prophet
to the same effect. This does not preclude the trial and punishment of
prisoners for crimes beyond the rights of belligerency. For this, we possess
the high authority of the practice of the Prophet when two prisoners of
the Battle of Badr were beheaded by his order. Muslim jurists clearly recognise
that a prisoner cannot be held responsible for mere acts of belligerency:
Similarly there is unanimity that belligerents would not be held responsible
for damage they inflicted on Muslims regarding life and property. This
would be so even when they embrace Islam or become Muslim Dhimmis,
i.e. subjects. For they did that conscientiously and in accordance with
the dictates of their religion and at a time when they were authorised
to do that, possessing as they did a resisting power. So they were on the
same footing as Muslims. The same is true regarding the capture of property.
(441) Treatment during captivity has been the subject of liberal provisions.
As regards the prisoners of Badr, the Prophet ordered: "Take
heed of the recommendations to treat the prisoners fairly."
The consequence was that many Muslim soldiers contented themselves with
dates and fed the prisoners in their charge with bread. Abu Yusuf remarks
that prisoners must be fed and well treated until a decision is reached
regarding them. They are not to be charged for their food, the cost of
which is to borne by the capturing Muslim State. The Qu'ran lays down:
"Lo, the righteous shall ... [go to Paradise] ... (because)
they perform the vow and fear a day whereof the evil is wide spreading,
and feed with food the needy wretch, the orphan and the prisoner,
love of Him, (saying): we feed you, for the sake of God only, we wish for
no reward not thanks from you."
Prisoners are to be protected from heat and cold, and the like. If they
have no clothes, these might be provided, as was the practice of the Prophet.
If they are in any trouble or discomfiture, this is to be done away with
as far as possible, for which there is authority of the practice of the
Prophet. He has the right to draw up [a] will for the property at home.
Obviously these would be communicated to the enemy authorities through
a proper channel. Among prisoners, a mother is not to be separated from
her child, nor other near relatives from each other. The position and dignity
of prisoners are to be respected according to individual cases. A tradition
is also attributed to the Prophet: "Pay respect
to the dignitary of a nation who is brought low." There is no
evidence in early Muslim history of exacting labour from prisoners. It
they tried to escape or otherwise violate discipline, they might be punished.
If they succeeded in their attempt to escape. and reach safety, and are
again captured, their previous offense of escaping might not be ground
for punishment, except perhaps the breach of parole.
(i)"Now when ye meet in battle those who disbelieve, then
it is the smiting of the necks until ye have routed them; then making fast
of bonds; and afterwards either grace or ransom till the way lay down its
(442) Muslim law leaves to the discretion of the commander to decide
whether prisoners of war are to be (a) beheaded, (b) enslaved,
released [up]on paying ransom, (d) exchanged with Muslim prisoners,
or (e) released gratis. We shall treat them separately.
Beheading of Prisoners
(443) We have already seen that the prisoners surrendering on conditions
are treated according to the terms of their capitulation. On unconditional
surrender, mere past acts of belligerency constitute no grounds for inflicting
capital punishment. No doubt, crimes other than these might bring punishment
on the prisoner. According to Abu Yusuf, a prisoner might be beheaded only
in the interest of Islam, though he also records many opinions of high
authority that their beheading was disliked (makruh). According
to Sarakhsi, even the commander-in-chief cannot do that; only the head
of the State can decide to put to death some particular prisoner. We have
seen that unanimity was reached among the Companions of the Prophet not
be behead prisoners of war. In short, capital punishment for prisoners
of war is permissible only in extreme cases of necessity and in the interests
of the State.
(444) There is no verse in the Qu'ran directly permitting enslavement,
yet some indirect mention is found in the following:
"O Prophet! lo! We have made lawful unto thee they wives unto whom
thou hast paid their bride-money, and those who they right hand possesseth,
of those whom God have given the spoils of war...."
(445) In the practice of the Prophet, however, though few, there are instances
of it. The females and children of the Jewish tribe of Banu Quraizah were,
by the decision of the arbitrator nominated by themselves, enslaved and
distributed as booty.
This arbitral award was in conformity with the Jewish personal law.
The captives of the Arab tribe of Hawazin, in the year 8H., were distributed
among the troops, but later on all of them were set free in answer to the
supplication of the Hawazinites after their conversion to Islam. This manumission
was not decreed as a right, but the Muslim soldiers were prompted by the
personal example of the Prophet; and those who would liberate their share
were yet ordered to do that and were compensated by the State-treasury.
A little earlier, the Arabian tribe of Banu;l-Mustaliq had also incurred
the same fate of losing females and children to the Muslim army. This time
the Prophet married a girl from among the captives, who happened to be
the daughter of the chieftain of the tribe, after liberating her. And Muslim
soldiery was persuaded to free all the enslaved persons who had now become
near relatives of the Prophet. The prisoners of Banu'l-'Anbar were set
free either gratuitously or on ransom.
(446) The policy of the Prophet reached a climax when, as is said, he
decreed that Arabs cannot be enslaved. The Caliph 'Umar issued orders that
peasants, artisans, and professional of belligerent countries should not
be enslaved. The Qur'an exhorted liberation of slaves, and provided that
the income of the Muslim State should every year partly be allotted for
the manumission of slaves. Another verse was interpreted by the Caliph
'Umar to mean that if a Muslim slave wanted to work and thus pay off his
value to his master, the master was not allowed to refuse the offer.
(447) Thus it might be inferred that though Islam has done much to minimize
slavery, it has not abolished it altogether. Certainly it is not
obligatory always to enslave prisoners of war, yet it cannot be denied
that the supreme commander of an army has the choice to accord the prisoners
either enslavement or any other treatment. A word of caution may not be
out of place. The Slave in Islam, does not convey the same idea
as in other civilisations. For a slave of a Muslim has a right to equality
with his master in food, clothing and dwelling. It cannot be denied that
is was an easy method of proselytising non-Muslims, which is the prime
policy of a Muslim State.
(448) As we have just seen, to enslave the prisoners of war, male or
female, is not at all obligatory. On the other hand, to free gratuitously
or on ransom are the two alternatives, - probably in order of preference,
commanded by the Qu'ran (xlvii. 4) regarding them. Of course, it is not
very easy to stop such a practice one-sidedly, if the adversaries are not
inclined to do likewise. Ibn Jubair, for instance, has left us in his graphic
and heartrending description of captive Muslim women and children sold
as slaves, in most abject conditions, in the markets of Italy, where he
had encountered them on his way to Mecca. Nevertheless, Islam had done
much to improve international treatment of slaves, and Hobhouse (Moral
in Evolution) has no hesitation in admitting that the betterment of
the treatment meted out o slaves in non-Muslim countries, Christians not
excluded, is traceable mostly to Islamic influence.
(449) Not being an obligatory rule of conduct, if Muslims voluntarily
give it up, they commit no sin and no violation of their law. In fact,
it is their own ideal. However, it must not be forgotten that waiving the
right of enjoyment of a permission given by law, by Muslims of a country
or period, does not abrogate the Divine law; and if other Muslims find
it necessary, for some reason or other, to reinstate it, they will not
be violating their law either.
(450) In fact, there are circumstances in which it may be in the interest
of humanity to have recourse to enslavement. If, for instance, a people
religiously believe that all aliens are untouchable, [then] treat human
beings worse than animals, and at the same time refuse to listen to the
counsel of humanitarianism; or if a people of one complexion have an exaggerated
prejudice against those created by God with a skin of another colour, and
treat them in a disgusting manner, it is in the interest of humanity to
proceed internationally against such inhumane people, enslave them, and
to put them under the mandate of a people who have no prejudices of colour
or race or tongue. Let us hope such a need will not press.
(451) For treatment of and laws governing slaves in Islam, I refer to
my monograph published by the Law Union of the Osmania University, which
contains also a bibliography; see also my article "Slavery in Islam," in
the Ramadan Annual of The Muslim Digest, Silver Jubilee Numbar,
Durban, March 1960.
(452) The Qur'an has legalised releasing prisoners of war [up]on ransom
(cf. xlvii. 4), and there are many instances in the life of the Prophet
of liberating them with various kinds of ransom and compensation. So they
were required sometimes to teach a number of Muslim boys reading and writing;
sometimes money in gold or silver was demanded; sometimes other goods,
for instance, spears and munitions of war, were accepted. It is not our
concern whether the ransom was paid by the prisoner from his private purse
or he was aided in it by his friends or government. The Caliph 'Umar II
released full one hundred thousand prisoners and acquired the city of Malatiya
from the Byzantines.
Exchange of Prisoners
(453) Of exchange, a special kind of ransom, there are many instances
in the life of the Prophet: sometimes for one, at other [times] for more.
In later times, it developed into a complicated institution involving the
release of thousands of prisoners at a time. In certain treaties the value
of the ransom of prisoners was fixed in definite sum of money.
(454) It is natural that vehicles employed for the purpose of conveying
exchangeable prisoners - cartels as they are called - should be immune
during their journey to and fro. It is also obvious that during the time
of this journey they should not take part in hostilities on pain or losing
(455) The Qur'an has recommended this when hostilities have ceased (cf.
xlvii. 4). There are not a few instances of it in the life of the Prophet.
For the Battle of Badr until his death, one comes across gratuitous releases
of prisoners every now and then. There were also cases of release on parole
that they would no more take part in hostilities against Muslims.
(456) Before the booty - in which prisoners according to Muslim law
are included - is distributed among the capturers, the commander is free
to deal with the prisoners as he likes. But after they are enslaved and
distributed, the consent of each recipient is necessary in all those acts
of the commander which affect adversely the possessory rights of the owners
of the now enslaved prisoners. The prisoners of Hawazin provide a good
precedent, when the Prophet allowed compensation from the public treasury
to all those who were not willing to part with their booty of slaves.