Legal Literacy - This article discusses Relevance Treatment of Prisoners of War in Islamic Law and the 1949 Geneva Conventions. Let's take a look at the discussion!
Written by: Sintarda Hari (Law Student, Sriwijaya University)
Basis of Islamic Law Experts' Views Regarding the Treatment of Prisoners of War
In Islamic Law, experts agree that the discussion regarding prisoners of war refers to enemy combatants, whether they are men, women, and children, who have been captured to be enslaved or exchanged for Muslim prisoners.
The experts of Islamic law in the 2nd or 8th century and 3rd or 9th century based these rules on the Al-Qur'an and examples from the Prophet. As for these provisions, for example, they refer to what has been exemplified by the Prophet, namely:
- The Prophet executed three people from Mecca
- The Prophet released prisoners of war for free
- The Prophet freed prisoners of war in exchange for Muslim prisoners or money, and taught ten Muslim children to read and write, as in the Battle of Badr as an exchange
- Enslaving prisoners of war
The interpretation of these provisions involves many parties, which are at least divided into three main groups:
- The first group includes Ibn Abbas, Abdullah bin Umar, al-Hasan al Bahsri, Atha, Sa'id bin Jubair, Mujahid, and al-Hasan bin Muhammad at-Tamimi; the consensus of the Prophet's companions is that Islamic rules regarding prisoners of war include matters such as release, whether free of charge or with ransom, as stated in QS Muhammad 47:4. However, it invalidates other options such as execution and enslavement.
- The second group, namely the legal experts of the Hanafi school of thought, argue that only the head of state has the right to execute and enslave prisoners of war, considering the benefit of the Muslim community. Abu Hanifah refuses to release prisoners for free or in exchange for ransom. This rejection is justified by his concern that if these prisoners are released, they could strengthen the enemy. However, Asy-Syaibani disagrees with him and instead allows prisoner exchanges to take place. In addition, some argue that the head of state has the right to release prisoners and then require them to live in an Islamic country and pay jizyah and are prohibited from returning to their country of origin.
- The third group consists of the majority of Islamic legal experts, including followers of the Shafi'i, Maliki, Hambali, al-Auza'i Abu Taaur, and ats-Tsauri schools of thought, who expand the options for the head of state. The treatment of these prisoners depends on what the head of state deems best for the interests of Muslims and has the right to choose four options: executing some or all of the prisoners, freeing them, enslaving them, or exchanging them for Muslim prisoners or ransom. In this case, the Maliki school of thought adds an additional option, namely being allowed to live in an Islamic country by paying jizyah.
Despite the conflicting opinions among legal experts, the experts unanimously agree that the rules regarding prisoners of war are left to the discretion of the head of state, depending on the mashlahah (benefit) contained therein. Even Syafii says that the head of state is prohibited from executing or freeing some/all of the prisoners, unless that choice is for the sake of mashlahah.
Treatment of Prisoners of War
Most of the Islamic position in treating prisoners of war is based on Nasib 70 or the biographies of 43 prisoners captured in the Battle of Badr. During that war period, the prisoners were imprisoned in mosques or distributed among the Prophet's companions.
When the Prophet divided the prisoners, he instructed his companions to treat them well and fairly. One story about these prisoners of war comes from Abu Aziz bin Umair bin Hasyim, who during his detention after the Battle of Badr was always given decent food in the form of bread and dates, even when he gave the bread to another prisoner he was still given the same bread again.
Other prisoners such as Abu al-Ash bin al-Rabi and al-Walid bin al-Walid bin al-Mughirah also conveyed similar things. Therefore, legal experts agree that providing decent food is a key element in treating prisoners, including clothing if needed. This is also mentioned in Al-Qur'an Surah Al-Insan verses 8-9.
In the Geneva Convention III of 1949, providing adequate food is one of the obligations of the ratifying states, as stated in articles 25-28, to ensure the health of prisoners.
Furthermore, according to Maliki, providing adequate food and drink while transporting prisoners to Muslim territory is obligatory. If this obligation cannot be fulfilled from the spoils of war from the enemy, the Muslim treasury (bait al-mal) must provide it.
Prisoners are also prohibited in Islam from being tortured, even to obtain military information, as when Malik was asked about Islamic rules regarding torture, he replied that it is forbidden and not allowed. Moreover, in Islam, executing prisoners is prohibited if Muslim prisoners are killed by the enemy, based on Surah Al-Anam verse 164.
According to the Convention, torture of prisoners is also prohibited, referring to article 13. In addition, in Islam, prisoners must not be separated from their family members; children must not be separated from their parents, grandparents, or relevant siblings, in accordance with the intent and purpose of article 82 of the Geneva Convention IV.
However, during war, if a child is captured without both parents, they will be educated until they become Muslim, but if their parents are present, they are required to follow what their parents believe.
In Geneva, there is no provision stating when someone must educate a prisoner to become the same religion as them, but in the Convention, in article 34, they are given freedom of religion, as well as religious services in articles 35-37.
Such are the provisions in Islam for treating prisoners of war. If we refer to the modern world, there may be many things that have not been fully established, so the treatment of these prisoners will be logical if it follows the opinion of a third party that returns to the ruler, especially considering that to this day many countries have ratified the Geneva Convention of 1949 and the Universal Declaration of Human Rights along with their respective constitutions.
References
- Ahmed Al-Dawoody, Islamic Law of War, KPG (Kepustakaan Populer Gramedia), Jakarta, 2019
- Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949
*This article represents the opinion personal opinion of the author and does not represent the views of the editors Legal Literacy of Indonesia.
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