بَابُ حُكْمِ الْأُسَرَاءُThe Ruling on Captives

³ The statement: “Seek him and kill him, etc.”: This indicates the permissibility of killing a hostile spy, and there is consensus on this. As for a spy under a covenant or dhimmi, Malik and Al-Awza‘i said: He breaks the covenant, and the leader may enslave or kill him. The majority say his covenant is not broken unless stipulated otherwise. For a Muslim spy, Abu Hanifah, Shafi‘i, and some Malikis say he is punished as the leader sees fit, short of death. Malik said: The leader exercises discretion. Iyadh said: Prominent Malikis say he is killed. They differed on sparing him if he repents; Al-Majishun said: If known for it, he is killed; otherwise, he is punished. As for a hostile spy from the land of war entering the land of Islam without safe-conduct, scholars differed. Malik said: The leader has discretion, and his ruling is like that of the people of war. Al-Awza‘i and Shafi‘i said: If he claims to be a messenger, it is accepted. Abu Hanifah, Abu Yusuf, and Ahmad said: His claim is not accepted, and he is spoils for the Muslims. Muhammad said: He belongs to whoever finds him. As stated in (‘Umdat al-Qari). ⁴ The statement: “granted me his spoils”: Al-Nawawi said: This Hadith clearly supports Shafi‘i and his followers’ view that the killer is entitled to the spoils, and it is not subject to one-fifth tax. In (Al-‘Alamgiriyyah): The killer does not automatically deserve the spoils unless the leader grants it before the killing, saying, “Whoever kills an enemy gets his spoils.” This is our scholars’ view. The Hadiths cited by Shaykh Ibn al-Humam clearly support our position; refer to (Fath al-Qadir) and (Al-Binayah) for details.

¹ The statement: “Rise to your leader, etc.”: In (Radd al-Muhtar): It is permissible, even recommended, to stand in respect for an arriving person worthy of honor. In (Al-Qunya): Standing in the mosque for someone entering out of respect, or a Qur’an reciter standing for someone worthy, is not disliked. In (Mushkil al-Athar): Standing for another is not inherently disliked; what is disliked is loving to have others stand for oneself. If one stands for someone not typically stood for, it is not disliked. Ibn Wahban said: In our time, standing is recommended to avoid resentment, hatred, or enmity, especially in places where standing is customary. Threats regarding standing apply to those who love having others stand before them, as Turks and non-Arabs do. This is supported by (Al-‘Inayah) and others, citing Shaykh Abu al-Qasim, who stood for the wealthy to honor them but not for the poor or students, saying the wealthy expect honor, and neglecting it harms them, while the poor and students seek only greetings and knowledge. See Risalat ash-Sharnilali for details. ² The statement: “These people have surrendered to your judgment, etc.”: This indicates the permissibility of arbitration in Muslim affairs, even major ones. Scholars unanimously agree on this, except the Khawarij, who objected to Ali’s arbitration, and he refuted them. As stated by Al-Nawawi in (‘Umdat al-Qari) and (Al-Hidayah).

³ The statement: “I rule that their fighters be killed, etc.”: In (Al-Hidayah): The leader has discretion with captives: he may kill them if they do not accept Islam, as the Prophet (ﷺ) killed some captives like Uqbah ibn Abi Mu‘ayt to eliminate their corruption entirely. He may enslave them to repel their harm while benefiting Muslims, so none of the fighters may kill a captive independently, as the decision belongs to the leader. He may also free them as dhimmis for Muslims, as Umar did with the people of the Sawad, except for Arab polytheists and apostates, who are offered only Islam or the sword. If captives convert after capture, they are not killed, but enslavement is permissible, as Islam does not negate slavery as a consequence of prior disbelief after the cause of ownership is established. If they convert before capture, they are not enslaved and remain free, as conversion precedes the cause of ownership. As stated in (Al-Mirqat).

⁴ The statement: “Whoever had grown pubic hair was killed”: At-Turbashti said: Pubic hair was considered due to necessity, as asking about wet dreams or age would not yield truthful answers, given the risk of death. Otherwise, pubic hair is not a criterion, contrary to Shafi‘i and a narration from Abu Yusuf. As cited in (Al-Mirqat) and (Radd al-Muhtar).

¹ The statement: “O Allah, I disassociate myself from what Khalid has done”: Ibn Battal said: There is no disagreement that a judge’s unjust or erroneous ruling is rejected. If it results from ijtihad or interpretation, as Khalid did, the sin is lifted, but liability remains according to most scholars. If it involves killing or injury, compensation is from the treasury, per Thawri, Abu Hanifah, Ahmad, and Ishaq. Some said it is on the judge’s clan. Al-Awza‘i, Abu Yusuf, Muhammad, and Shafi‘i said it is on the judge or his clan. Al-Majishun said: Neither the judge, his clan, nor the treasury are liable. As stated in (‘Umdat al-Qari).

² The statement: “They tied him to a pillar of the mosque”: Al-Nawawi said: This indicates the permissibility of tying and imprisoning a captive and allowing a disbeliever into the mosque. In (Nafa‘ al-Mufti was-Sa’il): Malik said a disbeliever cannot enter a mosque due to likely impurity, as the impure may not enter. Shafi‘i said they are barred only from the Sacred Mosque, per Allah’s saying: “Indeed, the polytheists are impure, so let them not approach the Sacred Mosque after this year” [Qur’an 9:28], referring to the year Abu Bakr led the pilgrimage and Ali announced Surah Bara’ah, year nine of Hijrah, as in (Ma‘alim at-Tanzil). In our view, they may enter any mosque, as their impure belief does not defile the mosque, and their impurity is not certain. The verse is understood as prohibiting their entry in a domineering manner, or it refers to their custom of circumambulating naked, men by day and women by night, saying, “How can we circumambulate in clothes we sinned in?” Alternatively, it does not prohibit entry after that year but foretells Muslims’ dominance. As stated in (Sharh al-Wiqayah) and (Al-Hidayah). ³ The statement: “Release Thumamah, etc.”: In (Ad-Durr al-Mukhtar) and (Radd al-Muhtar): Freeing captives without compensation is prohibited, even after their Islam, per Ibn Kamal, due to the rights of those who fought. Shafi‘i permitted it, citing: “Either confer favor afterwards or ransom” [Qur’an 47:4]. We say: This is abrogated by “Kill the polytheists wherever you find them” [Qur’an 9:5], as Surah Bara’ah was the last revealed, per (Fath). The freeing of Abu ‘Azzah al-Jumahi on Badr’s day was before abrogation, so he was killed when captured at Uhud. Muhammad offered another view: Abu ‘Azzah was an Arab polytheist, who are not enslaved, so freeing him did not negate Muslims’ rights. We agree regarding Arab polytheists and apostates. If the leader sees benefit in freeing some captives, it is permissible, as the Prophet (ﷺ) freed Thumamah ibn Uthal al-Hanafi on condition he cut off supplies to Makkah, which he did until they faced famine, per (Sharh as-Sir), summarized. In (Fath): Malik and Ahmad’s view aligns with ours, while Shafi‘i’s is supported by the Abu ‘Azzah case, but its response is clear. In (‘Umdat ar-Ri‘ayah): Freeing or granting dhimmi status should be impermissible due to the verse, but we forgo its apparent meaning based on consensus and narrations permitting enslavement and jizyah.

⁴ The statement: “He went to a palm grove near the mosque, bathed, entered the mosque, and said: I bear witness…”: Al-Nawawi said: If a disbeliever intends to embrace Islam, he should do so immediately without delaying for bathing. No one may permit delay; he must hasten, then bathe. Shafi‘i’s view: Bathing is obligatory if he was impure during disbelief, whether he bathed for it or not. Some Shafi‘is said: If he bathed, it suffices; otherwise, it is obligatory. Some Shafi‘is and Malikis said: No action is required, as impurity is nullified by Islam, like sins, but this is weakened by the consensus that wudu is required, so the effect of minor impurity is not nullified by Islam. If he was not impure and then converts, bathing is recommended, not obligatory, per Shafi‘i, Malik, and others. Ahmad and others said bathing is obligatory. In (Badhl al-Majhud): Hanafis, per (Al-Munya) and Halabi’s commentary, say one recommended bath is for a disbeliever converting. Sarakhsi in Sharh al-Mabsut stated it broadly. In (Al-Muhit): If a disbeliever was impure then converts, the sound view is that bathing is obligatory, as impurity persists post-Islam like minor impurity. In (Ad-Durr al-Mukhtar): Bathing is obligatory for one who converts while impure, menstruating, or postpartum, even after cessation, per the sound view, due to the persistence of ritual impurity.

⁵ The statement: “Your cavalry captured me while I intended Umrah, etc.”: In (Al-‘Urf ash-Shadhi): Hanafis say a disbeliever’s vow before Islam is not obligatory after conversion. Shafi‘is say it is obligatory, citing a Hadith. We say: The issue is obligation, not recommendation, and no text mandates obligation.

⁶ The statement: “Not a grain of wheat will come to you from Yamamah, etc.”: In (Al-Hidayah): Weapons should not be sold to people of war if they come under safe-conduct, nor sent to their land with traders, as the Prophet (ﷺ) prohibited selling or transporting weapons to them, per (Sir al-Bayhaqi), (Musnad al-Bazzar), and (Mu‘jam at-Tabarani) from Imran ibn Husayn. Bayhaqi said the sound view is that it is mawquf. The author of (Al-Hidayah) said: Analogy suggests prohibiting food transport to their land, as it strengthens them, and the goal is to weaken them, but we know food was transported per this Hadith of Thumamah and Usamah’s.

¹ The statement: “ransomed him for the two men Thaqif had captured”: In (Radd al-Muhtar): Ransoming captives by exchanging them for money or Muslim captives is prohibited in the prevalent view. The first is impermissible, but permissible if needed, per (As-Sir al-Kabir). Muhammad said: It is permissible if the captive cannot reproduce, like a frail elder, per (Al-Ikhtiyar). The second is impermissible per Abu Hanifah, but permissible per his two companions, with the first being the sound view, per (Az-Zad). In (Al-Muhit): It is permissible in the apparent narration. See (Al-Qahistani) for details. Zayla‘i in (Al-Fath) said it is the view of Abu Hanifah’s two companions and the three Imams, supported by Sahih Muslim and others, where the Prophet (ﷺ) ransomed two Muslims for one polytheist and ransomed Muslims captured in Makkah for a woman. Thus, prohibiting ransom applies to money without necessity, but ransom with money when needed or with Muslim captives is permissible. They agreed that ransoming with women, children, horses, or weapons is prohibited except in necessity, and a Muslim captive who converts is not exchanged for a Muslim unless his Islam is secure.

² The statement: “refused to return them, etc.”: In (Badhl al-Majhud): Abu Hanifah and his companions’ view, per (Al-Hidayah): If a slave of a hostile person converts and comes to us or we gain control over their land, he is free. Similarly, if their slaves join the Muslim army, they are free, as narrated that slaves from Ta’if converted, came to the Prophet (ﷺ), and he declared them free, saying: “They are Allah’s freed.”

³ The statement: “the day of the conquest, etc.”: Scholars differed on Makkah’s conquest. Shafi‘i said it was by treaty. In our view, it was by force, supported by this verse, as “granted victory” indicates overpowering, per Abu Hanifah. This is prioritized by Hanafi tafsir scholars like (Al-Kashaf) and (Al-Madarik). In (Al-Hidayah), in the chapter on tithes and land tax: Any land conquered by force and its people left on it is subject to land tax, except Makkah, which the Prophet (ﷺ) conquered by force and left to its people without tax. Some said this refers to Hudaybiyyah, as the surah was revealed before Makkah’s conquest. I say: This is weak, as the rulings in past tense are prophetic news of the unseen, per their books, summarized from (At-Tafsir al-Ahmadiyyah). In (Fath al-Qadir): Dividing lands is not mandatory, as Makkah was conquered by force, and the Prophet (ﷺ) did not divide its land. Malik said conquest makes land a waqf for Muslims, as he is most knowledgeable of narrations. Their claim of a treaty lacks evidence, contradicted by Sahih narrations: “Whoever enters Abu Sufyan’s house is safe; whoever locks his door is safe.” If it were a treaty, all would be safe without this. Also, Umm Hani’s protection of someone, and the Prophet’s order to kill Ibn Khatal despite his clinging to the Ka‘bah’s curtains, are clearer. His saying in Sahihayn: “Allah made Makkah sacred the day He created the heavens and earth; no blood is spilled there,” until he said: “If anyone justifies fighting citing the Messenger’s fighting, say: Allah permitted His Messenger, not you,” explicitly supports this.

¹ The statement: “You are not more able to hear what I say than they are”: It is inferred that the dead can hear, but some of our esteemed scholars reportedly denied the dead’s ability to hear, understand, or perceive. Some Hanafi jurists explicitly stated this, citing Allah’s saying: “Indeed, you cannot make the dead hear” [Qur’an 27:80]. They addressed this Hadith by noting that Aishah rejected it. This issue has several points: First, their claim that the dead cannot feel pain contradicts Hadiths indicating the dead feel pain as the living do, as mentioned by As-Suyuti in (Sharh as-Sudur). Second, their stance against visiting graves contradicts the Prophet’s saying: “Whoever visits me solely for my sake, it is my right to intercede for him on the Day of Resurrection,” and Hadiths stating the dead are comforted by visitors, respond to greetings, and recognize those they knew, which are numerous in Hadith collections. Third, their view on speaking to the dead contradicts authentic Hadiths in Sahihayn and elsewhere stating the dead hear and respond to greetings and understand the living’s speech. Aishah’s rejection of some of these Hadiths was not accepted by most Companions and later scholars. As for “Indeed, you cannot make the dead hear” [Qur’an 27:80], it negates making them hear, not hearing itself. The sound view is that “the dead” here refers to those dead in heart (disbelievers), not the physically dead. For a detailed discussion, refer to my treatise (Tadhkirat ar-Rashid) refuting (Tabsirat an-Naqid). To avoid length, I omit further details here; see my (Sharh al-Kabir) for clarification. No strong evidence from the Qur’an or Sunnah negates the dead’s hearing, understanding, or pain. Authentic Sunnah clearly affirms these. The truth is our scholars are innocent of denying these matters. Their rulings on oaths about striking, speaking, or visiting the dead, that they do not count as breaking the oath, are based on custom, not denial of these phenomena. Custom dictates that such oaths refer to the living, not the dead. Thus, speaking to the dead, though real and heard, is not considered “speaking” in the customary sense of an oath like “I won’t speak to you,” which applies to the living. Similarly, pain in the dead is real, but an oath like “I won’t strike you” applies to the living per custom. The restriction of such oaths is based on custom, not the reasons they stated. As stated in (‘Umdat ar-Ri‘ayah).

¹ The statement: “stood and prayed eight rak‘ahs”: This refers to the Duha prayer. In (Ad-Durr al-Mukhtar): It is recommended to pray four or more rak‘ahs for Duha, per the sound view, from sunrise to noon, with the preferred time after a quarter of the day. In (Al-Munya): The minimum is two rak‘ahs, the maximum is twelve, and eight is the middle and best, as in (Adh-Dhakha’ir al-Ashrafiyyah), proven by his action and saying (ﷺ). The maximum is based on his saying alone. If prayed with one salam, eight is best; if separated, more is better, as Ibn Hajar noted in his commentary on Bukhari.

² The statement: “wrapped in a single cloth”: This indicates praying in one cloth is permissible. Al-Tahawi said: This is the view of Abu Hanifah, Abu Yusuf, and Muhammad (may Allah have mercy on them). In (Al-‘Urf ash-Shadhi): The purpose, as Al-Tahawi said, is that the cloth not be left idle. If it is wide, one drapes it over the shoulders, called opposing the ends, wrapping, or enveloping. If moderately wide, it is knotted at the neck; otherwise, it is worn as a lower garment. Hanafis state that enveloping like the Jews in one cloth is disliked, but it is permissible with two cloths.

³ The statement: “We have granted safety to whomever you have granted safety”: In (Ad-Durr al-Mukhtar): We do not kill one granted safety by a free man or woman, even if sinful, blind, elderly, a child, or a slave permitted to fight, in any language, even if the enemy does not understand it, provided Muslims know it and the enemy hears it. Safety is invalid if granted from a distance. It is valid explicitly, e.g., “I grant you safety” or “No harm to you,” implicitly, e.g., “Come,” if perceived as safety, or by gesture, e.g., pointing to the sky.

⁴ The statement: “The safety granted by a restricted slave, etc.”: In (Al-Mirqat): The safety of a restricted slave is invalid per Abu Hanifah unless his master permits fighting. Muhammad said it is valid, as did Shafi‘i, Malik, Ahmad, and Abu Yusuf in a narration. Abu Hanifah and Malik (per Sahnun’s narration) provide detailed reasoning in Ibn al-Humam’s commentary. If a child who does not understand Islam or describe it grants safety, it is invalid by consensus of the four Imams, like a madman’s. If the child understands but is restricted from fighting, the dispute applies: invalid per Abu Hanifah, valid per Muhammad. Shafi‘i and Ahmad (in one view) align with Abu Hanifah, as the child’s word is not binding, like his divorce or manumission. Malik and Ahmad align with Muhammad. If permitted to fight, the sound view is that it is valid by consensus among our scholars, Malik, and Ahmad. Details on safety are in the chapter on retribution under Ali’s Hadith: “The lowliest of them upholds their covenant.” Refer to it, as it is valuable.

¹ The statement: “Fulfill the alliances of the pre-Islamic era, etc.”: This refers to alliances compatible with Islam. The evidence is his saying: “Islam only strengthens them.” What is negated is what contradicts Islam’s principles. The prohibition on initiating new alliances indicates no need, as Islam inherently obliges mutual support among Muslims. As stated in (Al-Kawkab ad-Durri). In (An-Nihayah): Alliances in the pre-Islamic era for tribal conflicts and wars were prohibited in Islam by his saying (ﷺ): “No alliances in Islam.” Those for supporting the oppressed, maintaining kinship, and similar were strengthened by Islam, per his saying: “Any alliance in the pre-Islamic era, Islam only strengthens it.” As stated in (Al-Mirqat).

² The statement: “Fulfillment, not treachery”: Amr ibn Abasah disapproved because if a treaty is set for a duration while one remains in their homeland, marching after the term as if part of the treaty period is treachery, as it catches them off guard. If the treaty holders betray, one may march on them unexpectedly. As stated in (Al-Mirqat).

¹ The statement: “I do not break a covenant, etc.”: This shows covenants with disbelievers are upheld as with Muslims. As stated in (Al-Mirqat).

² The statement: “Were it not that messengers are not killed, etc.”: Al-Shawkani said: These Hadiths indicate the prohibition of killing messengers from disbelievers, even if they speak words of disbelief in the presence of the leader or Muslims, as their role requires a response delivered through them, akin to a covenant. As stated in (Badhl al-Majhud).