Rape in War
Since the rise of ISIS in Iraq and Syria, the systematic use of rape in war has become a prominent issue. The case of ISIS is particularly unique, however, in that the group is attempting to build a state which institutionalises the practice of war, and on this basis the capture of non-Muslims prisoners of war. Under ISIS' 'theology', prisoners of war become 'slaves' who can be raped at will. This has led to an alarming situation in which the mass enslavement, trafficking and rape of women has become institutionalised under ISIS.
However, ISIS' 'theology' derives from a selective engagement with classical orthodox commentary. While it is certainly true that a widespread opinion among both Sunni and Shi'a jurists has been that Muslim fighters are permitted to have sexual intercourse with slaves acquired through war, a careful analysis demonstrates that the prevalence of this view overlooks quite clear-cut textual evidence in both the Qur'an, hadith, and authoritative exegesis by early commentators, that not only rape, but sexual intercourse without marriage is expressly forbidden by Islam, and has severe consequences and penalties.
The fact that much of this evidence has been ignored or overlooked is testament to the fact that much Islamic jurisprudence arose in the context of post-Muhammedan Muslim empires in patriarchal cultures and societies, through which fabricated traditions and interpretations that suited the dictates of male-dominated power at the time were widely distributed. As such, later commentators and hadith collectors experienced real difficulties in attempting to reconcile Qur'anic principles with conflicting hadith, not to mention the political pressures some them experienced due to the political patronage of incumbent rulers.
Prisoners of war
Islam was revealed at a time when slavery was rampant, and the buying, selling and mistreatment of slaves was an integral factor of the Arabian economy (not to mention other societies). The Qur'an and a wide range of Prophetic traditions, however, sought to limit, regulate and gradually abolish the practice of slavery through an architecture of injunctions designed to block off the acquirement of slaves while maximising the freeing of slaves.
Under Islamic precepts, the acquirement of slaves was limited entirely to prisoners of war. Simultaneously, short of an official statement of abolition - which in itself would never have been effective - numerous Qur'anic verses and hadith stipulated, effectively, the creation of permanent institutions by which to free slaves, such as the Prophetic prohibition of even using the term 'slave' to refer to prisoners of war, and the establishment of community funds toward the freeing of slaves, among other measures.
As Dr. Fathi Osman of the University of Southern California's Center for Muslim-Jewish Engagement observes:
"... the Prophet taught that even the word 'slave' should not be used, but one could only say 'my boy' or 'my girl.'" (Fatih Osman, Concepts of the Qur'an: A Topical Reading, MVI, 1999, p. 989)
Dr. Osman continues:
"... with regard to those whom 'one's right hand possess,' an authentic tradition of the Prophet indicates that they are merely brothers whom God has placed under one's authority and they should all eat the same food and be equally clothed. Morever, they should not be required to do what would over-burden them, otherwise the one who has them himself/herself should help in such a case." (Concepts of the Qur'an, pp. 781-2)
The Qur'an thus sought to equalise the relationship between 'slave' and 'master' as much as possible within the circumstances, and to end all ill-treatment and repression of those acquired as slaves.
This extended to institutionalising financial support to end slavery, through the practice of zakat, known commonly as the 'poor tax': an obligatory duty on all Muslims to pay a percentage of their income for charitable purposes. The Qur'an explains:
"Zakat expenditures are only for the poor and for the needy and for those employed to collect [zakat] and for bringing hearts together [for Islam] and for freeing captives [or slaves] and for those in debt and for the cause of Allah and for the [stranded] traveler - an obligation [imposed] by Allah." (9:60)
Thus, through the social institution of Zakat, the Qur'an had establish a permanent community fund dedicated to resolving a wide range of social problems, including the existence of slavery.
Similarly, the Qur'an commanded Muslims that any slave who asks for their freedom must be granted it by allowing them to earn their freedom based on a contract for a specific sum - this was based on the recognition of people did not want to simply give up slavery, but in this way instantiated irrevocable mechanisms by which slaves could obtain their freedom, and through which Muslim slave-owners were commanded to agree to such mechanisms, to the point of facilitating it by donating to the slave themselves:
"And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if you know any good in them; yes, give them something yourselves out of the means which Allah has given to you." (24:33)
Marriage, not rape
Within this context, a common view is that men were permitted to have sexual intercourse with their slaves outside of marriage. More problematic within this perspective is a lack of elucidation on whether any consent is required from the slave for such sexual relations.
The verse that is usually cited to justify the rape of slaves is as follows:
"And (also prohibited to you are all) married women except those your right hands possess [an Arabic idiom from the time for slave]. (This is) the decree of Allah upon you. And lawful to you are (all others) beyond these, (provided) that you seek them (in marriage) with (gifts from) your property, desiring chastity, not unlawful sexual intercourse. So for whatever you enjoy (of marriage) from them, give them their due compensation as an obligation. And there is no blame upon you for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise." (4:24)
According to various hadith, this verse was revealed after the Battle of Hunain, when the Muslims captured various prisoners of war, including some women. The Muslim men reportedly did not entertain sexual relations with the captured women because they were married. (Tafsir ibn Kathir, 4:24)
ISIS sympathisers cite this verse and related narrations as proof that the Qur'an had granted permission to simply rape the captive women.
In reality, the verse had a quite different intention. The preceding verse 4:23, prefaces 4:24 by explaining in detail who a man is prohibiting from marrying.
Thus, according to Imam ibn Kahir: "The Ayah means, you are prohibited from marrying women who are already married," except "those whom your right hands possess." While those captive women might be already married, the Muslims could however seek to marry them.
In other words, the verse clarified that Muslim men were forbidden from marrying other married women, except slaves who were married to idolators, who they could seek to marry with their consent. It did not justify engaging in sexual activity outside of marriage by raping captive married women.
This is confirmed by Imam al-Nawawi, who comments on the relevant hadith and verse with reference to the rulings of Imam al-Shafi, the founder of one of the four Sunni schools (madhab):
"Know that it is the way of al-Shafi and the scholars who agreed with him that it is unlawful to have intercourse with the captive women among the idolaters and other unbelievers who are without a divine scripture unless they first embrace Islam. They are forbidden to approach as long as they are following their religion and these captive girls were among the Arab polytheists who worshipped idols. This tradition and others like it imply that the women embraced Islam and this is how they must be interpreted. Allah knows best." (Abu Zakariya al-Nawawi, Sharh Sahih Muslim, 1456)
Imam Shafi himself ruled:
"If a man acquires a slave girl by force and then he rapes her, and he is not an ignorant person, then the slave girl is taken from him. He must pay the fine and the legal punishment for adultery will be applied to him." (Kitab al-Umm, 453)
In fact, further interpretive context for 4:24 is provided in the following Qur'anic verse, which provides unequivocal confirmation here that the only relationship with slaves considered legitimate is through consensual marriage:
"Whoever among you cannot find the means to marry free, believing women, then he may marry from those whom your right hands possess of believing slave girls, and Allah is most knowing about your faith. You believers are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. They should be chaste, neither of those who commit unlawful intercourse randomly nor those who take secret lovers." (4:25)
This suggests that there is a fundamental distinction between the Qur'anic-Prophet model, and the decisions of later jurists to legalise sexualise relations (including rape) with prisoners of war outside of marriage. Those politicised rulings were made in the context of expanding Muslim empire-systems in cultural environments that were patriarchal and misogynistic. This is just one example of how religion was used to rubber-stamp prevailing practices in imperial warfare.
PROPHETIC ZERO-TOLERANCE RAPE POLICY
There are thus several other hadith which show how harshly the Prophet and his Companions viewed the rape of slaves (and rape in general), to the point of prescribing, without much fanfare, immediate death for those found guilty of rape.
Imam al-Tirmidhi for instance refers to sound (sahih) reports narrated from the Companions of the Prophet that a man who had sexual intercourse with his wife's slave-girl - with his wife's permission no less! - should, according to the Prophet's judgement, be condemned to death, or at least receive a proportionate discretionary penalty (Sunan al-Tirmidhi, 1454).
This, of course, underscores that sexual relations with slaves outside marriage are simply not accepted within the Qur'anic-Prophetic model.
Another report provides an insightful example of how even during the time of the rightly-guided Caliphs, there were efforts by subordinates who held political offices to blur such clear injunctions. One instance showed that, Umar, the Prophet's Companion and second Caliph, intended to enjoin a harsh legal penalty for the rape of slave-girl, but was unable to do so due to distance and bureaucracy:
"Umar ibn al-Khattab, may Allah be pleased with him, sent Khalid ibn al-Waleed with the army and Khalid sent Dirar ibn Al-Azwar along with a company and they invaded a district belonging to the tribe of Asad. They captured a beautiful girl and Dirar was impressed with her. He asked his companions to give her to him and they did, then he had intercourse with her. When he completed his mission, he felt guilty for what he had done and he want to Khalid and told him about it. Khalid said, 'Indeed, I have made it permissible and wholesome for you.' Dirar said, 'No, not until you write to Umar.' Umar replied that he should be stoned but by the time the letter had arrived, Dirar had passed away from natural causes. Khalid said, 'Allah did not want to disgrace Dirar.'" (Sunan al-Kubra al-Bayhaqi, 16761, reported from Habeeb ibn Salim)
This narration shows that Umar, the Caliph at the time, recognised the illegitimacy of the act by Dirar and the requirement for a penalty, but was, effectively thwarted by his own military commander, Khalid bin al-Waleed.
Umar had elsewhere, however, successfully punished someone else for raping a slave-girl:
"Umar ibn al-Khattab was given a servant girl among the girls who served the leadership. She was forced upon by one of the young men, so Umar flogged the man and he did not flog the woman." (Musannaf ibn abi Shayba, 29012)
There are further reports that the Prophet himself also exhorted harsh penalties for rape in general. According to the following sound (sahih) tradition:
"A woman went out to pray during the time of the Prophet and she was met by a man who attacked her and raped her. She said, 'This man has molested me!' The Messenger of Allah, peace and blessings be upon him, said: He is condemned to death." (Susan al-Tirmidhi, 1454)
Notably, this hadith shows that for the crime of rape, which is not mentioned directly in the Qur'an, the evidentiary requirements to punish the rapist was much lower than even for other crimes invoking hudud penalties, which involve the need for several witnesses. In this example, the testimony of the woman was sufficient.
While this in itself is insufficient to derive any general or universal rules in this regard - a much deeper analysis of all the relevant hadith of this type would be necessary to develop a rounded understanding of Islam's little-understood zero-tolerance approach to rape - it is clear from these texts that all rape is explicitly prohibited by Islam.