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 discussions regarding prisoners of war refer to enemy combatants, whether male, female, or 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 the 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 the Prophet exemplified, 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, namely:
- 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, arguing that Islamic rules regarding prisoners of war include several things, such as liberation, which is carried out either free of charge or with ransom money, as in QS Muhammad 47:4. However, the rest cancels other options such as execution and enslavement.
- The second group, namely legal experts of the Hanafi school, argue that only the head of state has the right to execute and enslave prisoners of war, taking into account the benefit of Muslims. Abu Hanifah refused to release prisoners for free or with ransom money as an exchange. This rejection is justified by his concern that if these prisoners were released, they could strengthen the enemy. However, Asy-Syaibani disagreed with him and instead allowed prisoner exchanges to be carried out. In addition, some also argue that the head of state has the right to release prisoners and then require them to live in Islamic countries and pay jizyah and are prohibited from returning to their country of origin.
- The third group is the majority of Islamic legal experts, including followers of the Shafi'i, Maliki, Hambali, al-Auza'i Abu Thaur, and al-Thawri schools of thought, who expanded the options for the head of state. The treatment of these prisoners depends on what the head of state deems good for the benefit of Muslims and has the right to choose four options, namely executing some or all of the prisoners, freeing them, enslaving them, or exchanging them for Muslim prisoners or ransom money. In this case, the Maliki school 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 what benefits are in it. Even Syafii said that the head of state is prohibited from executing or freeing some/all of the prisoners, unless that option is for the benefit.
Treatment of Prisoners of War
Most of the Islamic position in treating prisoners of war is based on Nasib 70 or the biography of 43 prisoners captured in the Battle of Badr. During the 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 properly. One story about these prisoners of war comes from Abu Aziz bin Umair bin Hashim, who during his detention after the Battle of Badr was always given proper 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 detainees such as Abu al-Ash bin al-Rabi and al-Walid bin al-Walid bin al-Mughirah also expressed similar sentiments. Therefore, experts of law agree that providing adequate food is a key element in treating prisoners, as well as clothing if necessary. This is also mentioned in the 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 ratifying states, as stated in articles 25-28, so that the health of prisoners is maintained.
In addition, according to Maliki, providing adequate food and drink while taking prisoners to Muslim territory is obligatory; if this obligation cannot be fulfilled from the spoils of war from the enemy, then the Muslim treasury (bait al-mal) must provide it.
Prisoners are also forbidden in Islam to be tortured, even if it is to obtain military information, such as when Malik was asked about Islamic rules regarding torture, he answered that it is forbidden and not allowed to be done. Also in Islam, executing prisoners is prohibited if Muslim prisoners are killed by the enemy because it is based on Surah Al-Anam verse 164.
According to the Convention, it is also forbidden to torture prisoners, 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, he will be educated to become a Muslim, but if his parents are present, he is required to follow what his parents believe.
In Geneva, there is no provision as to when a person must educate a prisoner to become the same religion as him, 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, perhaps many things 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 authorities, especially considering that to this day many countries have ratified the Geneva Convention of 1949 and the 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 WAR OF 12 AUGUST 1949
*This article is the personal opinion of the writer and does not represent the views of the editors of Legal Literacy Indonesia.
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