Judgment of Kidnapping and Hostage Taking

Here is the original text of the International Union for Muslim Scholars (IUMS) statement about the Islamic rulings pertaining to kidnapping and hostage taking issued in Sha'ban 1425 AH - September 2004 AD:
"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:
First: 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: "Verily, Allah enjoins Al-‘Adl (i.e. justice and worshipping none but Allah Alone? Islamic Monotheism) and Al-Ihsan [i.e. to be patient in performing your duties to Allah, totally for Allah's sake and in accordance with the Sunnah (legal ways) of the Prophet peace be upon him in a perfect manner], and giving (help) to kith and kin (i.e. all that Allah has ordered you to give them e.g., wealth, visiting, looking after them, or any other kind of help), and forbids Al-Fahsha’ (i.e. all evil deeds, e.g. illegal sexual acts, disobedience of parents, polytheism, to tell lies, to give false witness, to kill a life without right), and Al-Munkar (i.e. all that is prohibited by Islamic law: polytheism of every kind, disbelief and every kind of evil deeds), and Al-Baghy (i.e. all kinds of oppression)." (Surah Al-Nahl, 16:90) It is well known that the order to ensure justice extends to kindness and being generous to one’s kith and kin 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: "So whoever has assaulted you, then assault him in the same way that he has assaulted you. And fear Allah and know that Allah is with those who fear Him." (Surah Al-Baqarah, 2:194) "Fight in the way of Allah those who fight you but do not transgress. Indeed. Allah does not like transgressors." (Surah 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. Allah says: "…and let not the hatred of some people in (once) stopping you from Al-Masjid-Al-Haram (at Makkah) lead you to transgression (and hostility on your part)." (Surah Al-Ma'idah, 5:2)
Second: Kidnapping is an act of war. If it could be exceptionally permissible during war, it is totally forbidden in all other situations:
1. In his commentary on the Qur'an, At-Tabari quotes the following hadith (vol. 26, p. 59) on the authority of Mujahid. The Prophet (peace 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.
2. Similarly the Prophet (peace 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-Hudaibiyah. Salamah did so thinking that the unbelievers had already violated this peace treaty. The Prophet (peace be upon him) 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: "Repel (the evil) with one which is better (i.e. Allah orders the faithful believers to be patient at the time of anger, and to excuse those who treat them badly) then verily he, between whom and you there was enmity, (will become) as though he was a close friend." (Surah Fussilat, 41:34) "Repel evil with that which is better." (Surah Al-Mu'minun, 23:96) Muslims are described in the Qur'an as those who "repel evil with good" (Surah Ar-Ra'd, 13:22) and (Surah Al-Qasas, 28:54)
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 (is the time) either for generosity (i.e. free them without ransom), or ransom (according to what benefits Islam), until the war lays down its burden." (Surah 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.
Third: 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 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) The Prophet (peace be upon him) ordered Khalid ibn Al-Walid saying: "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 be upon him) also highlighted the prohibition of killing an elderly man (Reported by Abu Dawud), a priest, or a hermit dedicated to worship (Reported by Malik in his Mudawwanah, in Jami' Al-Usul and the Musannaf of Ibn Abu Shaibah). The same prohibition of killing elderly men is confirmed by Abu Bakr. Moreover. Jabir ibn `Abdullah is quoted (in Musannaf Ibn Abu Shaibah) as saying that Muslims "did not kill the disbelieving merchants." The majority of scholars in the Hanafi, Maliki, and Hanbali schools of Jurisprudence 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 (Bada'i' Al-Sana'i' by Al-Kasani and in Al-Mughni by Ibn Qudamah), laborers, farmers, and tradesmen (Al-Dusuqi commentary on Al-Sharh Al-Kabir). 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.” (Nail Al-Awtar by Al-Shawkani)
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 Quraizah committed a horrific act of treachery, violating their peace treaty with the Prophet (peace 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.
Fourth: 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:
A. 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.
B. 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: "And they give food, in spite of their love for it (or for the love of Him), to the Miskin (the needy), the orphan, and the captive" (Surah Al-Insan, 76:8) The Prophet (peace be upon him) said: "Be sure to treat captives kindly." (Reported by At-Tabarani with a good chain of transmission) 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." (Imta' Al-Asma' by Al-Maqrizi) He is also quoted as saying: "Do not compound their suffering of today’s heat with the hardship of your arms." (Fath Al-Bari) After the Battle of Badr, the Prophet (peace 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. (Tafsir by Ibn Kathir)
C. 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 (Zad Al-Ma'ad by Ibn Qayyim Al-Jawziyyah). Allah says: "So, when you meet (in fight — Jihâd in Allâh’s Cause) those who disbelieve, smite (their) necks till when you have killed and wounded many of them, then bind a bond firmly (on them, i.e. take them as captives). Thereafter (is the time) either for generosity (i.e. free them without ransom), or ransom (according to what benefits Islâm), until the war lays down its burden." (Surah Muhammad, 47:4) The Prophet (peace 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 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-Alusi 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:
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.
Fifth: 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:
First: 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. Allah says: "No person earns any (sin) except against himself (only)…" (Surah Al-An`am, 6:164) "No bearer of burdens shall bear the burden of another." (Surah Al-Israa', 17:15) "Whosoever does a good deed, it is for his ownself, and whosoever does evil, it is against (his ownself)." (Surah Fussilat, 41:46) "Whosoever works evil, will have the recompense thereof…" (Surah An-Nisa', 4:123)
The Prophet (peace be upon him) has re-emphasized this in several hadiths. He said: "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 hadiths make clear that non-Muslims who have a treaty with Muslims must never be killed. In one of these hadiths, the Prophet (peace be upon him) said: “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)
Second: 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.
Allah Almighty knows best."
The International Union for Muslim Scholars
Sha'ban 1425 AH – September 2004 AD