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January, 2006

Kidnapping Foreign Nationals: An Islamic Perspective [1]

By Mustafa Abu Sway
Al-Quds University

 

Every now and then, we hear about the kidnapping of “foreign” nationals in Islamic countries. Few days ago, the family of a former German minister was kidnapped in Yemen. Kate Burton, a British human rights activist, and her parents were kidnapped in Gaza. By the time I had a chance to write about this topic, there was news about the kidnappers releasing the kidnapped Britons in Gaza, and also about the release of the German family in Yemen. This was a happy ending that I really anticipated.

It is well-known that the kidnappers’ demands, in cases like these, usually have nothing to do with the kidnapped persons or their countries. This does not mean at all that it is permissible to kidnap innocent civilians if there are conflicts with their countries, regardless of the nature of the conflict. These two families have been kidnapped because they are easy targets. It is ironic that in the case of Kate Burton, she is a human rights activist who believes in the justice of the Palestinian issue. Suffice it that she has declared, after being released, her commitment to return to Gaza to continue her services to the Palestinians. She knows that she is welcome; otherwise she would not have invited her parents to visit her in Gaza in the first place.

I could have based the arguments in this article on the laws, treaties and covenants that prohibit such deeds. I could have also brought up notions of Arab magnanimity, nobility and honor that require us to be generous to our guests and to be kind to them. Although we do not expect anything in return for being nice to them, yet, if we do, they will be our ambassadors defending our issues when they return to their countries. The positive relationship with them changes the stereotyped images about Arabs and Muslims. It should be known that many of those foreigners are fair and they carried the burden of defending us and, for that, they endured hardships and paid high price. They include the ISM (International Solidarity Movement), which includes Jews and Christians, and others who are sympathizing with us. They are in solidarity with us demonstrating in Palestine against the Wall qua symbol of the unjust Israeli Occupation. Indeed, there are churches, such as the Quakers, with principled positions against war, invasion and occupation. In addition, there are protestant Churches that encourage divestment from Israel because foreign investment supports the Israeli Occupation. This means that not all protestant churches are Zionist. The details in this respect are many.

I have chosen, because of the cultural background of this nation, to highlight the Islamic position vis-à-vis kidnapping, which is against it. It is hoped that it serves as a reminder that people will listen to, so that we can get rid of this negative phenomenon that does not serve us in any way. We would like to get rid of the heavy moral burden of kidnapping which supplies the biased media outlets with new material that reinforces stereotyped images about us. The real issue is the Israeli Occupation which should be highlighted all the time; kidnapping deflects the light.

I wrote in the past, from the perspective of the Islamic Shari`ah, about the notion of “the foreign person who’s safety is guaranteed” (Al-Musta’min). I repeat it here because its relevancy to the issue of kidnapping. Al-Musta’min is the foreigner who does not have a citizenship of the Islamic State, and seeks to reside in it temporarily. He could be a Jew, a Christian or from other backgrounds. In the language of today, he is the person who has a visa so that he could enter the country and stay. Such a person is protected, even if he comes originally from a country in a state of animosity with the Muslims. The proper institutions, such as the embassies, grant the visa on behalf of the Muslims. The visa is a contract that guarantees safety, and it is binding to the Muslims; they cannot harm the foreigner in any form, such as kidnapping, even if the foreign policy of his country harms the Muslims. The state of animosity should be considered temporary. Moreover, it should be noted that, in reality, not all the citizens in western countries support the foreign policies of their countries. We have seen millions of people in the west participating in demonstrations protesting these policies.

The Muslim must understand that the person, who applies for a visa, enters into a contract with the country that grants him the visa. The state, as an institution, does that on behalf of its people. Originally, in the Islamic worldview, any Muslim could grant protection to the non-Muslim as was the case of Um Hani’, when she provided protection to a Meccan idolater, an act that was approved by Prophet Muhammad. If the individual can provide such protection, then the state is more entitled to do so!

In fact, granting security should be mutual between the state and the individual, and this applies to the Muslim. This is because individuals are capable today of causing great damage to the state (eg. the attacks of 9/11). The individual is party to the contract, which he should not breach, for Muslims should fulfill the terms of the contract.

I do realize that there is a gap and antagonism between the institutions of the state and the people who look with suspicion at the state itself, especially if the ruler lacks legitimacy, but this does not justify harming the guests of our countries.

Verily, treating those guests well ultimately pays off, for the foreigner could take the initiative on his own to become an ambassador of goodwill on behalf of the Muslims.

We have seen many of them support our political rights, and defending Islam. Indeed, despite being non-Muslims themselves, they came to the protection of Muslims in their countries, when there was need for that.

We find in the Islamic sources that there were cases of kidnapping that took place during the life time of Prophet Muhammad (Peace be upon him), to which he objected. Al-Tabari narrated in his exegesis of the Qur’an (vol. 26, p.59) that Mujahid said: “The Prophet of God (Peace be upon him) went to perform the minor-pilgrimage. [Some] of his companions took [an unspecified number of non-Muslims], who live in the vicinity of Mecca, as captives. The Prophet (Peace be upon him) set them free. This is because there was no war going on at the time, and those persons were not combatants.

In another incident, the Prophet (Peace be upon him) did not approve the kidnapping of four idolaters at the hands of Salamah Ibn Al-Akwa` who thought that the idolaters breached the peace treaty. The Prophet said: “Let them go. They will initiate injustice and act immorally.” (Sahih Muslim)

The International Union of Muslim Scholars (IUMS) declared its position vis-à-vis kidnapping and taking hostages in their communiqué which was published in Sept. 2004. In what follows, I summarize this communiqué; the full text is available in Arabic on Islamonlin.net:

  1. Kidnapping is an assault on the other, be it a Muslim or non-Muslim. It is an unjust act that God forbids and prohibits:
    Allah commands justice, the doing of good and giving to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that ye may receive admonition. Qur’an, 16:90
    It is well known that enjoining the doing of justice and the doing of good to others is not restricted to Muslims. Therefore, the prohibition of injustice covers all humanity. God stressed that the mere differences in religion, even if in the context of a conflict, does not justify the assaulting the other:
    …Let not the hatred of some people in (once) shutting you out of the Sacred Mosque lead you to transgression (and hostility on your part)... Qur’an, 5:2

  2. Kidnapping is considered an act of war. If it were to be legal during actual war as an exception, it is absolutely prohibited when there is no war. Based on this, we say that it is not permitted to kidnap someone in other than an actual state of war. In such a case, he is considered a prisoner of war. It is prohibited to kill him; he is absolutely destined to be released:…afterward either grace or ransom… Qur’an, 47:4

  3. It is prohibited, in the case of actual war, to kidnap innocent people or civilians, who are [technically speaking] of the enemy. No act of war could be aimed at them. The civilians, from an Islamic perspective, are non-combatant women, children, and the elderly who have nothing to do with war, and monks and those who live in monasteries.

  4. If kidnapping takes place during actual fighting, the kidnapped become prisoners of war, and should be treated according to the teachings of Islamic Shari’ah regarding captives, which we summarize as follows:

    (a).
    The prisoner of war should be turned to the authorities to decide what to so them. The person who caught the prisoner of war has no right or authority over him.

    (b).
    It is a religious obligation to be kind to the prisoners of war, to treat them well, to be generous to them, to provide them with food and clothing, and not to torture them:
    And they feed, for the love of Allah, the indigent, the orphan, and the captive Qur’an, 76:8
    Indeed, the Messenger of Allah (Peace be upon him) ordered his companions to be generous to the captives of the battle of Badr; “they asked them to eat first at lunch”. (Ibn Kathir’s Exegesis)

    (c).
    The prisoners of war should be ultimately released.

  5. It is prohibited to hold civilians from amongst the enemy as hostages and threaten to kill them because of an action that is performed, or not, by others, while they are not responsible for it, and they cannot stop it. The prohibition is because of two reasons:

    (a).
    One of the most important rules of justice amongst people is that no one should be responsible for the actions of others, and no one should be held accountable for crimes done by others. This law of Shari`ah was confirmed by the Qur’an in many verses:
    No bearer of burdens can bear the burden of another Qur’an, 17:15

    (b).

     

     …If targeting civilians during war to kill them is prohibited, how come, then, [some people[2] believe] it is permitted to kill them, while they are captives, in cold blood?

It is clear that the message of the International Union of Muslim Scholars, headed by Dr. Yusuf Al-Qaradawi, calls for the prohibition of harming civilians in any way, including kidnapping, even in a sate of war.

We should not allow frustration to drive us to the use of violence, or solving problems, regarding issues of internal change, through the use of arms. And we have to give non-violent resistance a general chance to prove whither it is a valid or invalid method. This is only possible through experimentation.

We should see in every foreigner a potential friend that we can bring to actuality through kindness and benevolence. This is a path full with the thorns of ignorance; it can be cleared with tools of knowledge and patience, without getting bored or tired. The Qur’an says:
Nor can goodness and Evil be equal. Repel (Evil) with what is better: Then will he between whom and thee was hatred become as it were thy friend and intimate.
And no one will be granted such goodness except those who exercise patience and self-restraint,- none but persons of the greatest good fortune.(Qur’an, 41: 34-35)

 

[1] Originally was published in Arabic by Alquds daily (www.alquds.com) on 2-1- 2006.

[2] Originally, the IUMS’s communiqué was written in response to those who were killing hostages in Iraq.