HOSTAGES. Seizing, detaining, and threatening to injure a person in order to secure compliance with a condition or demand from a third party is the act of hostage taking. Before the advent of the modern regime of international law, belligerents often took hostages to secure compliance with requisitions, contributions, ransoms, bills, or treaties. The four 1949 Geneva Conventions and the 1977 Hague Protocols I and II prohibited the taking of hostages in international and internal armed conflicts. The 1979 United Nations International Convention against the Taking of Hostages imposed a duty to either prosecute or extradite hostage takers, but this convention has been ratified by only a few nations. Nevertheless, in contemporary times, hostage taking probably violates customary international law.
The Arabic term for hostages, rahd’in, means persons held as security. Like most medieval legal systems, classical Islamic law permitted the exchange of hostages to ensure compliance with a treaty. However, Islamic law considered such hostages inviolable and prohibited killing them even if the enemy violated the treaty or killed their Muslim hostages. On the outbreak of hostilities Muslim forces were commanded to safely return the hostages to their country. Furthermore, Islamic law prohibited Muslim forces from using enemy personnel or civilians as human shields in an armed conflict. Muslim jurists disagreed, however, on whether Muslim forces should attack if the enemy uses Muslim prisoners as shields.
There is some obscurity as to the distinction between prisoners of war and hostages. In classical Islamic law only muqdtilah (combatants) could be prisoners of war. Muslim jurists disagreed on whether a prisoner of war could be ransomed, exchanged for Muslim prisoners, killed, or freed. Other than combatants, any non-Muslim who does not have aman (safe conduct) or who is a national of a territory without a peace treaty with Muslims could be placed into captivity. In the opinion of most jurists antan can be granted by any Muslim. Additionally, if the non-Muslim wrongly, but reasonably, believes that he or she enjoys safe conduct, then he or she cannot be made a captive. Under no circumstances could a captive be used to make demands on a third party, hence, no captive could be used as a hostage.
Classical Islamic law was developed over a long span of time, primarily from the eighth to twelfth centuries, in response to specific historical circumstances. Additionally, classical Islamic law is represented by a variety of Sunni and Shi’i schools of thought that often reached different conclusions on many issues. Consequently, Islamic law leaves a rich and diverse legacy to its modern adherents. From this complex legacy an argument for or against hostage taking can be constructed, since both positions are supported by certain historical practices.
Since independence, in the 1950s and 1960s, the governments of most Muslim states have ratified the Geneva Conventions and have observed the prohibition against the taking of hostages. Only a few Muslim states, however, have ratified the Hostages Convention. Hostage taking has continued to be an issue in theMiddle Eastbecause of the fact that guerrilla groups or national liberation movements, particularly in the 1970s and 1980s, have used the taking of hostages as a means to secure compliance with their political demands. Typically, these groups have claimed that their captives are prisoners of war, but international law does not permit the endangering of the life of a captive in order to make demands on a third party.
In the 1980s the taking of hostages became a subject of debate among Shi’i scholars when several pro-Iranian groups seized hostages inLebanon. Some Shi`i leaders, such as Husayn al-Musawi, justified the taking of hostages in 1987 as a practical necessity. Interestingly, Ayatollah Ruhollah Khomeini (1902-1989) used the same logic in 1986 to defend the taking of hostages inIranin 19’79 and inLebanon. Others, such as the Lebanese Shaykh Muhammad Mahdi Shams al-Din, deputy chairman of the Higher Islamic Shi’i Council, and Ayatollah Muhammad Husayn Fadlallah, a senior Lebanese Shi’i cleric, have condemned hostage taking as un-Islamic and illegal. In 1992-1993 the Western hostages held inLebanonwere released, and the issue, for the time being, has fallen out of public discourse. Significantly, whether among proponents or opponents, serious discussions of the legality of hostage taking under Islamic law are very rare. Ultimately, hostage taking in theMiddle Eastis motivated by political considerations and has little to do with any set of religious or legal injunctions.
[See also Diplomatic Immunity; International Law; International Relations and Diplomacy.]
BIBLIOGRAPHY
Antokol, Norman, and Mayer Nudell. No One a Neutral: Political Hostage-Taking in the Modern World.Medina,Ohio, 1990. Serves as an introductory source on the problem of hostage taking in the modern world.
Conrad, Gerhard. “Combatant and Prisoner of War in Classical Islamic Law: Concepts Formulated by Hanafi Jurists of the Twelfth Century.” Revue de Droit Penal Militaire et de Droit de la Guerre 20 (1981): 271-305. Useful source on the treatment of prisoners of war in Islamic law.
Fadlallah, Muhammad Husayn. “Islam and Violence in Political Reality.”Middle EastInsight 4.4-5 (1986): 4-13. One of the few sources in English by a Shi’i cleric explaining his view on the taking of hostages.
Hamidullah, Muhammad. The Muslim Conduct of State. 7th ed.Lahore, 1977. Makes several references to hostage taking in Islamic law.
Khadduri, Majid. War and Peace in the Law of Islam.Baltimore, 1955 Contains a small section on hostages.
Kramer, Martin. “The Moral Logic of Hizballah.” In Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind, edited by Walter Reich, pp. 131-157.Cambridge, 1990. Discusses the position of Fadlallah on the taking of hostages.
Kramer, Martin. “Hizballah: The Calculus of Jihad.” In Fundamentalisms and the State: Remaking Polities, Economies, and Militance, edited by Martin E. Marty and R. Scott Appleby, pp. 539-556.Chicago, 1993. Informative on the history of Hizbullah’s involvement with the taking of hostages.
Mahmasani, Subhi. “The Principles of International Law in the Light of Islamic Doctrine.” Recueil des Cours 117 (1966): 201-328. Makes reference to the taking of hostages in Islamic law.
Ruwayha, Walid Amin. Terrorism and Hostage-Taking in theMiddle East. 2d ed.Paris, 1990. One of the very few sources on point, but a very polemical work representing a particular point of view. Schwartz, David Aaron. “International Terrorism and Islamic Law.”Columbiajournal of Transnational Law 29 (Summer 1991): 629652. Argues that hostage taking violates Islamic law.
Shaybani, Muhammad ibn al-Hasan. The Islamic Law of Nations: Shaybani’s Siyar. Translated by Majid Khadduri.Baltimore, 1966.
KHALED ABou EL FADL and AsmA SAYEED
