A bundle of twigs is not a tree : sample
Soundbite 7: “& if a people in Darul Harb embrace Islam…”
Sahnun
(R) said, “& if a people in Darul Harb embrace Islam, it is permissible for
them to kill whoever they can & take their wealth.”–An Nawadir wa-ziyadat[1]
Link to the Arabic text (في الأسير المسلم أو من أسلم بدار الحرب - viewed 01/05/2025)
|
C7/1 |
Regarding a Muslim prisoner of war or whoever accepts Islam in
the land of war, does he have the right to do whatever he can in terms of
escaping, criminality, killing or taking captives? What about if they release
him conditionally, or he gives them is word over certain matters? And what about if he
fornicates or steals? |
|
C7/2 |
From Ibn al-Mawaz’s[2]
book, and it is also in al-‘Utbiyah,[3]
reported from Asbagh and from Ibn
al-Qasim, who said about the Muslim prisoner of war, if he is able to escape[4]
from whoever of the enemy has him, either he is left to come and go as he pleases, in which case it is permissible for him to flee unless he is released on
parole.[5]
If his being left to come and go has no parole condition, then he may kill, plunder and take
whatever he can;[6]
likewise anyone of them who was held under restraint but managed to break his
bonds by himself. Either that, or he is released from restraint on condition that he does not attempt to escape or to act treacherously
towards them; such a person does not have the leeway to do that. |
|
C7/3 |
‘Isa narrated something similar
from Ibn al-Qasim,[7]
who said, “Someone of whom I approve said it”[8]
– and I suspect that it was Malik who said it – “of a prisoner of war who, on a guarantee of safety,
is not restrained, he is not permitted to escape or to take anything of
theirs. However, if they release him without
any guarantee of safety, as they might release a slave, and they show
no fear of him, then he has the right to escape and take what he can.” |
|
C7/4 |
Ibn al-Mawaz said, “Except
where those who released him from his bonds left him in a place from which he
cannot escape, leaving him on the basis that he would not escape, this person has the right to make what he
can of that situation.” |
|
C7/5 |
Ibn al-Mawaz also said, “Ibn al-Qasim said, ‘If
they did not impose that condition on him at the time of releasing him from
his bonds, then he has the right to do whatever he can in terms of seizing
property, killing, and taking women and children captive. However, if he is released on condition
that he does not try to escape or to engage in any unlawful act, then he is not permitted to
do any of that, as in the case of a compact.”[9] |
[1]
See https://shamela.ws/book/96257/1470
(viewed 01/05/2025) for the Arabic text of Fi al-asir al-Muslim aw man
aslama bi-dar al-harb. The work’s full title work is al-Nawadir wa-al-ziyadat ʻala ma
fi al-Mudawwanah min ghayriha min al-ummahat by Abu Muhammad ʻAbd Allah ibn ʻAbd al-Rahman
Abi Zayd al-Qayrawani (d.386/996). The title of the book from which this
excerpt is taken refers to those unusual opinions not found in al-Mudawwanah
but only other core Maliki texts.
[2]
Muhammad ibn Ibrahim, known as Ibn al-Mawaz (d.269/882 or 3), wrote a book on
Maliki law called al-Mawaziyah. The opinions in this book may therefore
be taken as ‘exploratory’ rather than of acknowledged authority within the
Maliki school.
[3]
This refers to the work of Muhammad ibn Ahmad al-‘Utbi (d.255/869)
[4]
See also the footnote to C6/5 above on Article iii of the Code of Conduct
for members of the Armed Forces of the United States, “If I am captured, I
will continue to resist by all means available. […] I will accept neither
parole nor special favors from the enemy.”
[5]
Compare Article 21 of the Geneva Convention relative to the Treatment of
Prisoners of War states that “Prisoners of war may be partially or wholly
released on parole or promise, insofar as is allowed by the laws of the Power
on which they depend. Such measures shall be taken particularly in cases where
this may contribute to the improvement of their state of health. No prisoner of
war shall be compelled to accept liberty on parole or promise. […] Prisoners of
war who are paroled or who have given their promise in conformity with the laws
and regulations so notified, are bound on their personal honour scrupulously to
fulfil, both towards the Power on which they depend and towards the Power which
has captured them, the engagements of their paroles or promises.”
[6]
This is closest text found to the Daesh quotation, “&
if a people in Darul Harb embrace Islam, it is permissible for them to kill
whoever they can and take their wealth.” The assertion
in the Daesh soundbite that a person who converts to Islam in ‘the land of war’
can plunder and kill as much as he is able appears to have no basis except in
the question, since the opinion in the response itself refers only to Muslim prisoners
of war who were not released conditionally on parole.
[7]
‘Abd al-Rahman ibn al-Qasim (d.191/806) studied for about twenty years under
Malik ibn Anas, the founder of the Maliki school of jurisprudence.
[8]
This peculiar turn of phrase (“Someone of whom I approve said it…”) appears in
a number of Maliki law books, but not readily in the works of Hanafi, Shafi‘i
or Hanbali scholars. Sahnun (d.240/854), who studied under students of Imam
Malik ibn Anas, is mentioned in the soundbite as given to me by a convicted
terrorist, but not in the quotation itself. In this instance, Sahnun rather
than Malik may or may not have been the person approved of by Ibn al-Qasim.
However, why would Ibn al-Qasim refer to his own student, Sahnun, in this way
rather than just naming his source for this opinion along lines that – out of
context – appears to support Daesh propaganda? Either way, whatever one thinks
of the opinion, it would have been clear to the originally intended readership
with legal training that, under the normal rules of engagement, an escaped PoW
would only be allowed to attack and kill those who presented a clear threat to
their own safety and survival.
[9] This clear statement is particularly relevant when
one thinks of the serious incident at the separation centre in HMP Frankland on
Saturday 12th April 2025, when Hashem Abedi assaulted three prison
officers with hot butter or cooking oil and improvised bladed weapons, apparently
made from a baking tray. Before using kitchen facilities or gym equipment,
prisoners must sign a compact undertaking to do so in a safe manner. As we read
in the excerpt above, which is only included here because Daesh propagandists
chose to misquote it, such a compact is considered legally binding from the
Sharia perspective, even if a Muslim considers him- or herself to be not a
criminal, but a prisoner of war. Whilst knowledge of this fact may not have
dissuaded Hashem Abedi from acting as he did on that day, it is not unreasonable
to assume that it might be helpful in giving the majority of Muslim prisoners the
confidence to view such assaults as contrary to the teachings of Islam rather
than as heroic acts of jihad against oppression by the kuffar
(disbelievers).
Link to the blurb for A bundle of twigs is not a tree
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