Taqiuddin An Nabhani (1909 -1977)

I came across this tract by the founder of the ‘radical Islamist’ group HT dealing with what the regulations of warfare should be.

I must emphasise; I am not a supporter of this group but his answer seemed so much more liberal and humane than those of many Muslim apologists today that one wonders…

Why do I say this? Because he basically prohibits ‘enslaving’. See for yourself…

Taqiuddin An Nabhani clarifies in a detailed chapter of his book on the ideal Islamic personality that the Prophet never enslaved any fighters. Ever. And it appears this is prohibited from the ayat of the Quran: “When you meet those who disbelieve then striking of the neck until when you have inflicted severe slaughter upon them then bind the fetters. Then either release afterwards or either ransom until the war lays down its burdens” 

As for the situation of war, Islam detailed therein and prevented the enslaving of captives absolutely. In the second year of the Hijrah, it clarified the rule of the captive in that either they are favoured by releasing their (sirah) without any exchange or either they are ransomed for money or captives like them of Muslims of dhimmis, thereby preventing the enslaving of captives. The Supreme said: “When you meet those who disbelieve then striking of the neck until when you have inflicted severe slaughter upon them then bind the fetters. Then either release afterwards or either ransom until the war lays down its burdens” [TMQ ]. The ayah is explicit upon this meaning: Release/favour (manna) or ransom, and it absolutely does not bear any other meaning. The Arabic language requires restricting the rule of the captive in one of these two matters—release or ransom because “imma” is for giving a choice between two matters and for restriction in the two things. Herein it came giving a choice between release and ransom, and restricting the rule to these two, when it came expressing that with “imma” which gives sense (mufid) of the restriction in what is mentioned after it: “then either release afterwards or either ransom” [TMQ ]. Here a question can be offered/raised which was a position of confusion for some fuqaha from whom it was taken that the Khaleefah can enslave captives if he so views. This question is that the Prophet (SAW) did enslave after this ayah. This ayah was revealed in the second year after Hijrah at the beginning of the war between the Messenger and the Quraysh disbelievers, and the Messenger enslaved in Hunayn. And the Messenger’s action is considered legislation as it considered explanation for the ayah of Allah. So how could enslaving of captives be prevented by this ayah even though the Messenger enslaved after is revelation in Hunayn?

The response is that the action of the Messenger and his speech in relation to the Qur’anic ayat is either detailing (tafseel) its (mujmal), restricting its unrestricted or specifying its generality. The action of the Messenger and his speech cannot be an abrogation to the Qur’an. The ayah of captives is neither (mujmal) such that it be detailed, nor are its words the words of generality so that they be specified nor unrestricted so that they be restricted. So if it be authenticated that the Messenger enslaved after its revelation, his action would be an abrogator for it and this is not permitted. In addition, the Messenger’s enslaving captives is individually narrated news (khabr ahad) which contradicts the ayah: “Then either (manna) afterewards or either ransom”; and when the (khabr ahad) contradicts the definite ayat and ahadith the knowledge (diraya) of the (khabr ahad) is rejected. Accordingly, there is not consideration to what is narrated of the Messenger enslaving after the revelation of the ayah of captives. Actually what happened from the Messenger in the battle of Hunain was that women and children accompanied the fighters of the polytheists to increase their numbers and incite their men, so when they were routed in the battlefield the women and children became (sabaya) and the Messenger divided them between the fighters among the Muslims. When they (ruji’a) in this (sabaya) the Muslims gifted what they had of the right in this (sabaya) voluntarily and returned their (sabaya) to their people. This indicated the permissibility of enslaving (sabaya) who are the women and children who accompany the men in the battlefield to increase the numbers and for encouragement. Despite that, the Messenger did not enslave the (sabaya) in Khaybar. When he (SAW) invaded Khaybar and conquered over its residents, he left them as free persons and left the land under their hands to farm it for half its (ghilt). Abu Ubaidah said about (sabaya): ‘The Imam is given a choice in them as long as they have not been divided. Once they are divided there is no way over them except by gift and free will of those for whom they become like the action of the Messenger of Allah (SAW) with the people of Hunain. None of the (sabaya) was returned by anyone of them except by gift and free will since he had divided them. He did not do this with the people of Khaybar but rather left them as free persons nor were they gifted by anyone as division had not occurred over them.’ 

As for other than the (sabaya) who are the fighters when they are taken as captives, the Messenger (SAW) never enslaved any of their men. It is not authenticated that he enslaved a captive of the fighting men from the Arabs or Jews or Christians. The word (aseer) when used unrestricted in the language (tansarifu) to the male fighter. As for the woman and children, the word used for them in the language is (sabiyy) not (usra). Accordingly this clarifies that Islam prevented enslaving captives of the male fighters, and gave the Khaleefah a choice in the (sabaya) between enslaving and liberation and there is no ransom in them. Just as the Messenger did in the (sabaya) of Hunain; he enslaved them then liberated them. And like he did with the (sabaya) of Khaybar; he left them free without enslaving them. This is if women and children accompany the army in war; if they stay at home, however, there is nothing upon them, neither captivity nor (sabaya). The action of the Khaleefah in the question of enslaving (sabaya) proceeds according to what the war policy requires in dealing with the enemy. Its objective is not enslaving rather it is merely one of the war transactions whose matter is left to the Khaleefah who does what he sees and what the position in relation to the enemy requires.

Accordingly this clarifies that Islam treated enslaving and prevented all situation in which enslaving occurred, and left for the Khaleefah the choice in the situation of (sabaya) in following the position in relation to the enemy. Hence it has finished enslaving particularly when it invalidated the going out of women and children with the army to increase the numbers and for encouragement as in the situation in modern warfare for centuries today. There does not remain even one situation in which enslaving occurs at all. Accordingly Islam has prevented enslaving