Fatwa Permits Mujahideen to Kidnap, Imprison, and Have Sexual Intercourse with Infidel Women
MEMRI 6 December 2011
On October 28, 2011, the jihadi forum Minbar Al-Tawhid Wal-Jihad published a fatwa by Sheikh Abu Humam Al-Athari, a member of its shari'a council, in which he unequivocally permits mujahideen to capture the infidels' women and have sexual intercourse with them, even those who are married, on the claim that their marriage bonds to infidels are dissolved as soon as they are taken captive.
Following are the fatwa's main points:
The inquiry in response to which Al-Athari issued the fatwa reads as follows: "Is it permissible for mujahideen in jihad fronts to kidnap the infidels' women and hold them as their captives? What is the ruling regarding a captive in our times? How should they be divided [among the mujahideen]? Is it permissible to imprison [an infidel woman who has been taken captive] in an infidel land, or must she be brought to Dar Al-Islam [the abode of Islam]? How much time must one wait before having sexual intercourse with her, regarding both one who is a virgin and one who is not?"
Al-Athari replies: "There is no doubt that taking the women of the combatant infidels captive – whether they are from Ahl Al-Kitab [i.e., Christians or Jews] or pagans – is permitted according to the shari'a... That being said, it must be done only after [the spoils] has been divided by an imam in Dar Al-Islam; if there is no imam at hand, prisoners may not be taken..."
Al-Athari emphasizes that before deciding to take infidel women captive, "one must consider the gains and losses that will result from this deed, which is to say that if the imam of the Muslims in a given country believes that taking the infidels' women captive will lead the infidels to band together and rape the Muslims' women, and that the Muslims are in too weak a state to prevent this, he should forbid taking [infidel women] captive..."
Al-Athari notes that "there are too many proofs of the permissibility of taking the infidels' women captive to enumerate here, but we can divide them into two categories: 'general proofs' and 'concrete proofs.'" He explains that the "general proofs" are those which clarify that it is forbidden to violate the honor of Muslim women, but that this does not hold true regarding the infidel women, except in cases where they are assured protection. Al-Athari claims that the permissibility is absolute and anchored in the principles of the shari'a. Therefore, he says, it does not necessitate proof, and it falls rather on those who forbid taking infidel women captive to prove the legitimacy their claims.
In his discussion of "concrete proofs," Al-Athari quotes Al-Qurtubi, who says: "Most scholars, including Malik [ibn Anas], Al-Shafi'i, Abu Hanifa, and others, thought that taking [infidel women] captive removes the protection [they previously enjoyed], and permits whoever is holding them to have sexual intercourse with them." Al-Athari also quotes another scholar whose interpretation of Al-Qurtubi's ruling says that the latter uses the word "protection" to refer to married women, who are forbidden to men other than their husbands. That is, when these women are taken captive, their marriage contracts with their infidel husbands become void, and they become permissible to their captors. Al-Athari adds that the amount of time a captor must wait until having sexual intercourse with a captive infidel woman depends on her condition: if she is pregnant, he must wait until after she gives birth; if she is menstruating, he must wait until after her period is over; and if she is young and has not yet begun menstruating, he must wait a month from her capture.
 Rather than providing a name or handle of the inquirer, the website mentions only that the inquiry was taken from forum correspondence.
 Al-Qurtubi ("The Cordovan," d. 671), Malik ibn Anas (711-795), Al-Shafi'i (767-820), and Abu Hanifa (699-767) are among the great Koranic scholars, and the last three are founders of major schools of Islamic jurisprudence.