What is the legal status of the property and dependents of an enemy combatant who converts to Islam while in the enemy's territory (Dar al-Harb)?
General Chapter
Al-Mughni
Book of Jihad
Primary text
If an enemy combatant (Harbi) converts to Islam while in Dar al-Harb, his blood, property, and minor children are protected from enslavement. If he enters Dar al-Islam and converts, and he has minor children remaining in Dar al-Harb, those children become Muslims and cannot be rightfully enslaved. This view is held by Malik, Shafi'i, and Al-Awza'i. The basis is that his property becomes the property of a Muslim, and his children are considered the children of a Muslim, thus they must follow him to Dar al-Islam, similar to if they were already with him in Dar al-Islam. Therefore, his property cannot be taken as spoils of war (ghanimah).
Supporting text
Abu Hanifa holds that any property, slaves, possessions, or minor children he possessed are left to him. However, his assets located in Dar al-Harb may be taken as spoils because the Islam of the children is not established through his conversion due to the difference in territories. He likens this to a child enslaved while his parents are in Dar al-Kuffr, where the child follows the enslaver into Islam rather than the parents. Furthermore, land or a domicile in Dar al-Harb is considered spoils, as is his non-Muslim wife and any fetus she carries.