Question:
Does Islam allow burning alive as a punishment? Some sources have mentioned that Hazrat Abubakr RA burnt apostates and gave permission to Khalid bin Walid RA to burn some people and Ibn Taymiyyah RA and Ibn Hajar Asqalani RA approved of burning a person?
Answer:
Answer:
1) Burning anyone alive is categorically prohibited (haram) in Islam. There are at least two Quranic verses and five authentic hadiths prohibiting that act:
(i) The verse:
فَلاَ يُسْرِف فِّي الْقَتْلِ
“Let one not commit excess in killing” (al-Isra’ 17:33)
which was deemed to be a prohibition of disfigurement (muthla) by Samura b. Jundub, `Imran b. Husayn, Ya`la b. Murra and Talq b. Habib (Suyuti, al-Durr al-Manthur under that verse). “Burning is disfigurement” (al-tahriqu muthla) (Ibrahim al-Nakha`i as narrated by `Abd al-Razzaq, Musannaf 5:213), as is also castration (Qurtubi under al-Nisa’ 4:119) or the display of decapitated heads, which Abu Bakr al-Siddiq (r) called “the cursed fashion of the Persians and the Romans.” “Disfigurement together with killing in the sense of reprisals such as cutting the nose or the ear or gouging out the eye and so forth; that is the meaning of committing excess in killing” (Qunawi, Hashiya on Baydawi 11:497).
However, if proportion and exact talion is kept then it is not excess even in the case of disfigurement, including that of the enemy dead as per the hadith of `Imran b. Husayn: “The Messenger of Allah never addressed us in any sermon except he ordered us to give away charity and he forbade us to disfigure even the unbelievers after we kill them. Therefore we do not disfigure them after killing, we do not cut off their ears or their noses and we do not eviscerate them, unless they did so with us first, in which case we do that to them just as they did.” Ibn Taymiyya quotes this hadith which he introduces by stating, “Disfigurement in killing is impermissible except as talion (qisas),” but concludes: “however, leaving that is superior, as Allah Most High said, ‘And when you retaliate, then retaliate in proportion to the injury that was done to you; but if you endure patiently, it is certainly far better for those who endure patiently! Do endure patiently! Indeed, your patience endurance is with none else but Allah’ (al-Nahl 16:126-127). It was said this was revealed after the disfigurement of the Muslim dead of Uhud by the enemies, whereupon the Prophet had vowed revenge in identical terms.” Just before this passage Ibn Taymiyya also states that “crucifixion as an exemplary punishment is implemented after death according to the vast majority of the scholars.” Majmu`at al-fatawa li-Shaykh al-Islam Ibn Taymiyya, ed. `Amir al-Jazzar and Anwar al-Baz, 3rd ed., 37 vols. (al-Mansura, Egypt: Dar al-Wafa’, 1426/2005) 28:173-174.
(ii) The verse:
وَلاَ يَجْرِمَنَّكُمْ شَنَآنُ قَوْمٍ عَلَى أَلاَّ تَعْدِلُواْ اعْدِلُواْ هُوَ أَقْرَبُ لِلتَّقْوَى وَاتَّقُواْ اللّهَ
“Let not the hatred of a people incite you not to act fairly. Act fairly! That is highest unto piety. And beware of Allah!” (al-Ma’ida 5:8)
which al-Qurtubi commented, “Even if they kill our women and children to demoralize us, it is not permissible for us to equally kill their women and children to demoralize them.” In his encyclopedia of comparative fiqhentitled al-Mughni, Ibn Qudama forwarded consensus on the matter: “Question: And when the enemy is fought, they are not to be burnt by fire. As for the enemy, once they are overpowered, it is not permissible to burn them with fire. There is no dispute over this that we know of. Abu Bakr, Allah be well-pleased with him, did command the burning of the apostates with fire, and Khalid b. al-Walid implemented this, but as for today I do not know of any difference of opinion over it among the people.” (Ibn Qudama, al-Mughni, al-Turki ed. 13:138-139)
مسألة : قال : وإذ حورب العدو لم يحرقوا بالنار أما العدو إذا قدر عليه فلا يجوز تحريقه بالنار بغير خلاف نعلمه وقد كان أبو بكر رضي الله عنه يأمر بتحريق أهل الردة بالنار وفعل ذلك خالد بن الوليد بأمره فأما اليوم فلا أعلم فيه بين الناس خلاف
This qualitative limit to the permissibility of retaliation in kind is a given of classical jihad theory and was reiterated by the contemporary jurist Yusuf al-Qaradawi in his 1650-page summa published in 2009, Fiqh al-jihad: “The preponderant ruling is the prohibition of disfigurement in war generally speaking, and even if they [enemies] disfigure us we do not disfigure them.” al-Qaradawi, Fiqh al-jihad (1:763).
(iii) The hadith “Do not punish with the punishment reserved for Allah!” i.e. by burning them. (Bukhari, Sunan, Ahmad, al-Hakim etc. from Ibn `Abbas).
(iv) The hadith “None may punish with fire except Allah” (Bukhari from Abu Hurayra; Abu Dawud from Ibn Mas`ud and Hamza al-Aslami; al-Bazzar from Abu al-Darda’). One version has “except the Lord of the fire.” That makes five Companions relating the above. Ibn Hajar in his commentary on Abu Hurayra’s narration of this hadith in Fath al-Bari said: “The manifest [meaning] of the forbiddance in this [Hadith] is categorical prohibition (hurma).”
(v) The hadith “Raid the enemy in the name of Allah but do not disfigure!” (la tamthulu / la tumaththilu). Mass-transmitted, related from almost 20 Companions. “Burning is disfigurement” (al-tahriqu muthla) (Qurtubi citing Ibrahim al-Nakha`i under Surat 2:36 as already mentioned).
(vi) The hadith of the Companion Hisham b. Hakim b. Hizam who passed by a group of non-Arab peasants in Syria [Homs] who had been made to stand in the sun, and oil had been poured over their heads. He asked, “What is this?” They told him: “They are being tortured over [evading] the tribute (jizya).” Hisham said: “I bear witness that I heard the Messenger of Allah (s) say, ‘Verily Allah shall torture those who torture people in this world.’” He went in and told this to the governor and the latter let them go. (Muslim, Abu Dawud, MusnadAhmad.) Al-Haytami said in al-Zawajir `an iqtiraf al-kaba’ir (no. 74): “This is for torture by means of the sun; what to say of using fire!”
(vii) The hadith of Ibn `Umar who passed by a group of archers using a live hen for target practice, whereupon they dispersed and he said: “The Prophet (s) said that Allah curses anyone who does such a thing [use a live being as a deadly target].” (Bukhari and Muslim.) Al-Haytami said in al-Zawajir `an iqtiraf al-kaba’ir (no. 74): “Torture by fire is like torture by using it as a target, or worse.”
2) Absolutely no one was ever reported to have been burnt alive by the Prophet (s) in the sources. As for the Companions, Ibn Hajar said in Fath al-Bari (6:150 al-Jihad wal-siyar, bab: la yu`adhdhabu bi-`adhabillah): “The Salaf differed over burning: `Umar, Ibn `Abbas and others abominated it in absolute terms–whether in dealing with apostasy, or in the context of combat, or as talion-law, while `Ali, Khalid b. al-Walid and others allowed it.”
واختلف السلف في التحريق: فكره ذلك عمر وابن عباس وغيرهما مطلقا سواء كان ذلك بسبب كفر أو في حال مقاتلة أو كان قصاصا، وأجازه علي وخالد بن الوليد وغيرهما
3) Several versions of the report that Hadrat `Ali b. Abi Talib (r) had some apostates burnt (Bukhari, Sunan, Musnad and elsewhere) (or idol-worshippers or zindiqs depending on the version, see Fath al-Bari 12:270, Istitabat al-murtaddin, bab: hukm al-murtadd) leave it unclear whether this was a live or post-mortem burning. At least three versions explicitly state that the burning was after execution by the sword, namely:
(i) the hadith of al-Tabarani in al-Awsat through Suwayd b. Ghafla that “`Ali heard news that some people had reneged from Islam so he summoned them, gave them a meal, then called them to Islam. They refused. He dug a pit, brought them, beheaded them and cast them into it. Then he threw some firewood over them and burnt them. Then he said, ‘Allah spoke truth and so did His Prophet.’” Ibn Hajar cites it.
روى الطبراني في الأوسط من طريق سويد بن غفلة أن علياً بلغة أن قوماً ارتدوا عن الإسلام فبعث إليهم فأطعمهم ثم دعاهم إلى الإسلام فأبوا فحفر حفيرة ثم أتى بهم فضرب أعناقهم ورماهم فيها ثم ألقى عليهم الحطب فأحرقهم ثم قال صدق الله ورسوله.
(ii) the hadith narrated from Abu Raja’ by al-Tabari in Tahdhib al-Aathaar (Musnad of `Ali b. Abi Talib p. 80 no. 142): “Some people from the Yemenis reneged from Islam in the time of `Ali b. Abi Talib, whereupon `Ali sent Jariya b. Qudama and he sent an army with him. I was part of that army. He marched and when he reached the gorges of `Adiy and Taym, he decided to go faster, so he left men behind and he left me behind as well, and marched faster. When he reached the locality he gathered those who had apostatized from Islam, beheaded them and burnt their bodies with fire. *Thus had `Ali commanded him to do.*”
(iii-iv) the two hadiths narrated from Abu al-Tufayl by al-Tabari in Tahdhib al-Aathaar (Musnad of `Ali b. Abi Talib p. 82 nos. 147-148): “A group of zindiqs were brought in front of `Ali and they said: ‘You are He’ (anta Hu). He said: ‘Who am I?’ They said, ‘You are He.’ He said: ‘A curse upon you! Who am I?’ They said: ‘You are their Lord’ (anta rabbuhum). `Ali said, ‘The people of Ibrahim became angered for their gods, so they decided to burn Ibrahim with fire; we have greater right to become angry for our Lord.’ Then he called Qanbar who beheaded them, after which he dug pits in which he stoked a fire and threw them in.”
See also for the latter: Musnad al-Humaydi (1:145); Sunan al-Bayhaqi (9:71); Fath al-Bari (6:106). However, Al-Munawi in Fayd al-Qadir (entry “la tu`adhdhibu bi-`adhabillah“) asserts that “`Ali burnt them alive.”
4) The reports show that Hadrat `Ali reacted with surprise when news of Ibn `Abbas’s reaction to the burning reached him (at that time Ibn `Abbas was governor of Basra), in which the latter said: “Lo! Had it been for me to decide I would have killed them in conformity with the Hadith of the Prophet (s), ‘Whoever reneges from his religion, kill him,’ but not burnt them, due to the Hadith of the Prophet (s), ‘Do not punish with the punishment reserved for Allah.’” `Ali reportedly just said: “Wayh Umm Ibn `Abbas” (Woe to the mother of Ibn `Abbas!) and in another version “Wayh Ibn `Abbas!” (Woe to Ibn `Abbas). This reaction is ambiguous and Ibn Hajar (Fath al-Bari 12:270) showed that it can be interpreted two ways: either as a “Woe” of mercy to mean: “Woe to him for taking the hadith of prohibition as strict and categorical when it is only a prohibition of preference (lil-tanzih)!” i.e. he rejected Ibn `Abbas’s objection. The second possible meaning is “Woe to him for being right!” The latter interpretation implies that “the Hadith had not reached him [`Ali] before”: al-Hazimi, al-I`tibar fi bayan al-nasikh wal-mansukh min al-aathaar (1940 ed. p. 195). It is the interpretation preferred by the contemporary Egyptian Shaykh Mohamad Said Raslan, in this video’s impassioned comments on Ibn Hajar’s discussion of this particular issue:
5) Furthermore, the hadith of the ruling on apostates is explicit that the sword and nothing else is to be used: “Whoever reneges his religion, strike his neck.” (Muwatta’, bab al-qada’ fiman irtadda `an al-islam, mursal of Zayd b. Aslam; Musnad al-Shafi`i; al-Bayhaqi, al-Sunan al-Kubra).
6) Most of the reports about Hadrat Abu Bakr (r), Khalid b. al-Walid (r) and `Abd Allah b. al-Zubayr burning apostates or sodomites have very weak chains, and most come through Sayf b. `Umar al-Dabbi and his bookal-Ridda wal-Futuh, who is discarded in Hadith. However, they are strengthened by contextual corroborants such as the report of Hadrat `Umar b. al-Khattab’s (r) strenuous objection to Abu Bakr concerning Khalid’s treatment of the apostates: “Are you going to leave that one (Khalid b. al-Walid (r)) alone when he is punishing with the punishment reserved for Allah?” Abu Bakr replied: “I am not going to sheathe a sword Allah drew against the polytheists.” (`Abd al-Razzaq, Musannaf 5:212). This might mean burning alive, but Ibn `Abbas voiced the same argument to `Ali b. Abi Talib even when he had apparently applied the burning post-mortem.
7) Furthermore, the authentic position retained from the above-mentioned Companions was that the apostate be executed by the sword and the sodomite by stoning, not by fire. This is the position of Ibn `Abbas, `Ali b. Abi Talib, Abu Bakr al-Siddiq, `Abd Allah b. al-Zubayr, al-Sha`bi, al-Zuhri, Jabir b. Zayd, Rabi`a b. Malik, al-Shafi`i, and Ishaq b. Rahawayh. Ibn al-Musayyib said it was an established old Sunna. See al-Bayhaqi, al-Sunan al-kubra (8:231-233 bab ma ja’ fi hadd al-luti) and al-Mughni, chapter on the ruling pertaining to sodomites.
Note: al-Mawsu`a al-Fiqhiyya al-Kuwaytiyya (44:25) here mistakenly asserts that all of the above viewed that both are executed by the sword.
8) According to the Kufans also, there is no punishment with fire but only with the sword (or stoning or just lashing for the sodomite) whether as a criminal penalty (hadd) or otherwise: Ibrahim al-Nakha`i, Sufyan al-Thawri and Abu Hanifa and his school as well as `Ata’ among the scholars of Hijaz as narrated by al-Hazimi,al-I`tibar fi bayan al-nasikh wal-mansukh min al-aathaar (1940 ed. p. 194). Al-Mawardi said in al-Ahkam al-Sultaniyya: “Burning is categorically prohibited (haram), whether the living or the dead.”
However, al-Hazimi on the same page mentions that one who murdered another by fire in cold blood is executed in the same fashion, i.e. by fire, as a judiciary criminal penalty, according to Malik b. Anas and the scholars of Medina, al-Shafi`i and his companions, Ahmad b. Hanbal and Ishaq b. Rahuyah. Its gist is related from al-Sha`bi and `Umar b. `Abd al-`Aziz as well.
This “talion-law ruling” (qisas) is how the firebrand-eye-gouging of the bedouin murderers from `Ukl and `Urayna (Bukhari and Muslim from Anas) is understood as a judiciary sentence and not as something applicable in the conduct of war, “so the preponderant ruling is the prohibition of disfigurement in war generally speaking, and even if they [enemies] disfigure us we do not disfigure them” according to al-Qaradawi, Fiqh al-jihad (1:763). Furthermore, such punitive use of the firebrand was abrogated by the verse of qisas even as a talion-law punishment and is thus impermissible in absolute terms according to Ibn Sirin as also narrated by al-Hazimi.
9) Therefore all the burning reports are understood (i) as post-mortem, as stated explicitly in one version through Ja`far al-Sadiq, from his father, from `Ali b. Abi Talib, “the sodomite is stoned to death then burnt” (al-Bayhaqi, al-Sunan al-kubra 8:232-233); and, in the case of apostates, (ii) in the heat of battle using military pyrotechny (see discussion below); or (iii) as a retaliation (qisas) for their murder of Muslims as explicitly mentioned in this report by al-Tabari in Tahdhib al-Aathaar (Musnad of `Ali b. Abi Talib p. 83 no. 149) and hisTarikh (3:233): al-Sariy b. Yahya al-Hanzhali wrote me saying, Shu`ayb narrated to us, from Sayf [b. `Umar], from whoever narrated to him, from Nafi`, that Abu Bakr wrote to Khalid b. al-Walid during his fighting with the apostates: “Do not catch any *killer of Muslims* but that you kill him and make an example of him. Whoever you like among those who defied or opposed Allah, if you see benefit in it, kill them….” In this latter case the rationale was therefore that the apostates had committed both apostasy and crimes (ridda wa haraba). Abu Bakr’s burning of al-Fuja’a (Iyas b. `Abd Allah b. `Abd Layl) in al-Baqi` for the murder of Muslims on a large scale (Ibn Kathir, Bidaya) is of the same order.
10) Whatever qualified approval Ibn Taymiyya actually gave of “disfigurement” (muthla, which includes burning) in war was apparently meant as a limited dispensation given to commanders on the field to have the bodies of slain enemy combatants thus used strictly on two conditions: (i) as retaliation (qisas) if and only if such disfigurement had been committed by the enemy prior to that time, a stipulation similar to the judiciary context mentioned above; and (ii) for deterrent effect (rad`, tarhib) as part of the conduct of war, if they assessed that it might deter enemies from such acts in the future. The words related from him in this context are:
وَإِنْ مَثَّلَ الْكُفَّارُ بِالْمُسْلِمِينَ فَالْمُثْلَةُ حَقٌّ لَهُمْ فَلَهُمْ فِعْلُهَا لِلِاسْتِيفَاءِ وَأَخْذِ الثَّأْرِ وَلَهُمْ تَرْكُهَا، وَالصَّبْرُ أَفْضَلُ وَهَذَا حَيْثُ لَا يَكُونُ فِي التَّمْثِيلِ السَّائِغِ لَهُمْ دُعَاءٌ إلَى الْإِيمَانِ وَحِرْزٌ لَهُمْ عَنْ الْعُدْوَانِ فَإِنَّهُ هُنَا مِنْ إقَامَةِ الْحُدُودِ وَالْجِهَادِ
“If the unbelievers disfigure the Muslims, then disfigurement becomes their [the Muslims’] due right: they have the choice to either do it so as to reclaim their right and exact revenge or to leave it–steadfast endurance being superior–but the latter case is when mutilation, [although] justifiable for them (al-tamthīl al-sa’igh lahum), neither conveys a call to faith nor achieves any security for them from further hostility. For here its status [i.e. mutilation] is that of applying criminal penalties and waging jihad.” Ibn Taymiyya, al-Fatawa al-kubra (`Ilmiyya ed. 5:540).
The above passage was variously paraphrased by subsequent Hanbali jurists such as Ibn Mufliḥ, al-Furu`(Risala ed. 10:265); al-Ba`lī, al-Ikhtiyarat al-fiqhiyya (Misr 1329 ed. pp. 185-186); and al-Buhuti, Kashshaf al-qina` (Riyadh 2005 ed.7:81-82).
11) The principle of talion or “identical retaliation” (mithliyya) is based on the saying of Allah in the Qur’an,
فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُواْعَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ
“Whoever aggresses you, aggress them in identical proportion (bi-mithl) to their aggression of you” (al-Baqara 2:194) and:
وَإِنْ عَاقَبْتُمْ فَعَاقِبُواْ بِمِثْلِ مَا عُوقِبْتُم بِهِ
“If you make reprisals, do so in identical proportion (bi-mithl) to what you were harmed with” (al-Nahl 16:126).
The two prohibitory verses and five prohibitory hadiths we mentioned in Paragraph 1 are understood as limitations for both the application of these two retaliatory verses (as pointed out by al-Qurtubi) and that of the jurists’ dispensation.
12) Even burning to death a live insect such as a flea was counted among the enormities (kaba’ir) by the early jurists. See on this the 74th chapter of al-Haytami’s Encyclopedia of enormities, al-Zawajir `an iqtiraf al-kaba’ir. There is not even a word big enough to condemn the act of burning a human being.
13) All of the above refers to deliberate burning in cold blood. As for hurling fire at the enemy ranks or fortifications in battle–for example with catapults and mangonels (manjaniq)–or water to drown them, the consensus of the jurists is that it is impermissible if the enemy can be overcome without use of fire or water; but if not, the majority deem it permissible, even if the enemy are using Muslim captives as their cover. The Companions did this (using fire or water) in their military campaigns. (Mawsu`a Kuwaytiyya 2:125, 12:244, 16:152)
And Allah knows best.
Hajj Gibril Haddad
