The Prohibition Of Torture

The Prohibition Of Torture

Running head: THE PROHIBITION OF TORTURE OF ENEMY-COMBATANTS

The Prohibition of Torture of Enemy-Combatants Umm Sulaim August 20, 2012/ Shawwal 2, 1433

The Prohibition Of Torture

Abstract The paper discusses universal human rights and the treatment of combatant-prisoners in Islam.

The Prohibition Of Torture

The Prohibition of Torture of Enemy-Combatants Introduction: Much of the discussions among Muslims that I have read betray Islam and present our Religion as a Religion whose believing citizens have practically no rights at all, - besides the self-imposed rights to misery and to be murdered - and are not concerned with such rights. Interestingly, when it does suit the purpose and Muslims wish to evoke their rights, they frequently resort to conventional man-made laws. The Reality of Rights in Islam: Islam stresses numerous rights and their inviolability, especially, the protection of human life, property and dignity, which pre-date the International Humanitarian Law1. The following are some of the universal rights Islam endorses. 1) The right to existence: Everyone has the right to life, provided certain limits of Allah are not violated, and even then, the prescribed penalty is to be implemented by the authority, and in line with laid down procedures. 2) The right to a fair hearing: Fair hearing means devoid of duress, explicit or implied and the accused granted the means of proper expression. 3) The right to humanity: Interactions should not violate the dignity2 of anyone. No one should live in fear of receiving physical and/or psychological harm. 4) The right to maturity: Despite the beliefs of a number of Muslims, particularly Muslim women, no one is a perpetual minor. Barring mental ill-health, maturity is chronological and physical. So at a certain age, one becomes an adult endowed with legal responsibility.
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Diana Gladka I have chosen the term dignity over its synonym honour as the latter is the basis for gross mistreatment of women and has come to signify not women-friendly.

The Prohibition Of Torture

5) The right to privacy: Ones body and sexuality is ones private business. No one should be stripped, raped, or forced to perform sexual acts. Ones correspondence and interactions remains ones responsibility. Private communications should be monitored and intercepted, only if there is a concrete threat to personal and national security. Communications of prisoners of war fall under this exception. Additional rights of captured enemy combatants: Right to Kind Treatment: O Prophet! Say to those who are captives in your hands: If Allah finds any good in your hearts, He will give you something better than what has been taken from you, and He will forgive you: for Allah is Oft- forgiving, Most Merciful. But if they have treacherous designs against thee, they have already been in treason against Allah, and so He has given [you] power over them. And Allah is He Who has Knowledge and Wisdom.3 The default treatment of war prisoners is kindness. More firmness is allowed should they prove treacherous. Right to Equity: If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And Allah has full Knowledge about your faith. You are one from another: Wed them with the leave of their owners, and give them their dowers, according to what is reasonable: They should be chaste, not lustful, nor taking illicit lovers. When they are taken in wedlock, if they fall into shame, their

Allah. The Quran 8:70-71

The Prohibition Of Torture

punishment is half that for free women. This is for those among you who fear sin; but it is better for you that you practise self- restraint. And Allah is OftForgiving, Most Merciful.4 Captive earn similar rights to free persons, but are liable to a half of the usual penalty. Right to Welfare: 60. Alms are for the poor and the needy, and those employed to administer the [funds]; for those whose hearts have been [recently] reconciled [to Truth]; for those in bondage and in debt; in the cause of Allah; and for the wayfarer: [thus is it] ordained by Allah, and Allah is full of Knowledge and Wisdom.5 8. And they feed, for the love of Allah, the indigent, the orphan, and the captive,9. [Saying],"We feed you for the sake of Allah alone: no reward do we desire from you, nor thanks.6 The adequate explanation of these Aayah is the statement of the Messenger of Allah: Feed them from what you yourself eat and clothe them from the clothes you yourself wear. Prohibition of Torturing Captives: One of the last commands of the Messenger of Allah was kind treatment of slaves7. Umar Ibn Al-Khattab released a slave whose face was burnt by the slaves owner.8 Should an enemy combatant be inadvertently tortured, it is meritorious to release him from detention, as the Messenger of Allah instructed some of his Companions to that effect and others voluntarily did so with his knowledge.9 Once the combatant is in custody, his welfare

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Allah 4:25 Allah 9:60 6 Allah 76: 8-9 7 Adab Al-Mufrad: Being a master, #158 8 Ibid #161 9 Ibid #171, 176, 177

The Prohibition Of Torture

becomes the responsibility of his custodians. He should not be subjected to life-threatening circumstances. Whoever gives a man a promise of security and then kills him, then I disassociate myself from the killer - even if the one who was killed was a disbeliever.10 Although some Muslims do not acknowledge their rights within Islam, Walter R. Schumm writes that: Long before the development of the Geneva Conventions, the Quran had deemed prisoner abuse to be wrong.11 In recognition of the humanitarian significance of Islam in war, Diana Gladka wrote: Similarly, both laws12 strongly advocate humane treatment of the enemy. Interestingly, Islamic law also provides for the provision of water to enemy camp. The treatment of prisoners of war is also clearly outlined in Islam as it is the IHL13, both advocating compassion to the captured enemy. Therefore, Islam prohibits immorality, humiliation, neglect and excesses against the dignity of human beings, even when committed against the enemy.14 Conclusion: Torture of captured enemy-combatants is emphatically prohibited in Islam.

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Shaykh al-Albaani. #6103 Walter R. Schumm 12 i.e., Shareeah and International Humanitarian Law 13 International Humanitarian Law 14 Diana Gladka

The Prohibition Of Torture

Bibliography Allah. The Quran Imam Bukhari. Adab Al-Mufrad Shaykh al-Albaani. Saheeh al-Jaami as-Sagheer wa Ziyaadatuh'. Selected Ahadeeth from Saheeh Al-Jaami.pdf. Translated by Abu Sabaayaa Gladka, Diana. The Relationship between Islamic Rules, Values and International Humanitarian Law. Kyiv Student Journal of International Law No. 7 (2007). 08.pdf Schumm, Walter R. Reflections from the Social Sciences on the Possible Causes of Abusing Muslim Prisoners of War