أحكام الأسرى والمعتقلين في الفقه الإسلامي والقانون الدولي الإنساني : الواقع الفلسطيني نموذجاً

Abstract

Issues pertaining to imprisonment and detention are at present some of the most haunting problems for people around the world because of the various forms of injustice and aggression committed against detainees and prisoners. The present study looks into a unique case of oppression, deprivation and injustice inflicted on a defenseless and occupied people, i.e. the case of the Palestinian people under the Israeli occupation that has been unfolding for a long time in full view of the world and its legal international organizations. The dissertation deals with the problem of prisoners and detainees in light of Islamic jurisprudence and International Humanitarian Law, taking the Palestinian situation as an ideal case of the worst kind of maltreatment that a detainee might undergo. To achieve the objective of the study, the researcher undertook the task of elucidating the meaning of detention and imprisonment and their causes and forms both under Islamic and conventional law. He also examined the rules and precepts established in Islamic jurisprudence and provisions spelled out in International Humanitarian Law regarding the detention of women, children, and statesmen and government officials with diplomatic immunity, and legislating the rights of detainees in general. Then the researcher dealt with the rights of Palestinian prisoners and detainees in particular. Firstly, he traced the views of classical and modern Muslim jurists and scholars as well as the opinions of experts of International Humanitarian Law concerning issues of prisoners and detainees at the theoretical level, thus analyzing and discussing the grounds underlying such views and opinions. On another level, he made use of historical and descriptive methods in order to put the question of Palestinian prisoners and detainees in its proper context on the one hand, and to expose the different kinds of aggression and violation that those prisoners and detainees are continuously subjected on the other. In this respect, data were collected through personal interviews with a group of Palestinian prisoners and detainees freed in a prisoner swap with the Israeli authorities. This is followed by explication of Islam’s approach to the liberation of prisoners and detainees, and the role Muslim states, international organizations, and NGOs can undertake to free those prisoners and detainees. This study arrived at a number of findings, two of which can be mentioned here. First, Islam has preceded modern conventional laws and regimes by legislating rules to guarantee the rights of prisoners and detainees in wartime, protect their dignity and treat them in a humane manner; International Humanitarian Law however differs from Islam only on particular issues or specific applications. Second, the study has shown that “Israel” does not respect human rights and violates the rules of International Humanitarian Law and all world agreements and conventions when dealing with Palestinian prisoners and detainees through racial, barbaric and inhumane ways.