Must statutory punishments (hudud) be carried out against a raider (ghazi) in the land of war (dar al-harb) before returning?
General Chapter
Al-Mughni
Book of Jihad
Primary text
A statutory punishment or retribution (qisas) that becomes due to a raider in the land of war shall not be carried out until the army returns (yaqful), at which point the punishment is inflicted. This is the opinion of Al-Awza'i and Ishaq. Evidence for delaying the punishment is found in the report that when a thief was brought before a commander during a campaign, he refrained from cutting off the hand, citing the Prophet's saying, 'Hands shall not be cut off during campaigns.' Furthermore, there is consensus among the Companions regarding this postponement. The postponement is due to the necessity of maintaining troop morale and preventing the enemy from gaining an advantage, as exemplified by the historical account of Abu Mihjan during the battle where his punishment was delayed until after victory, whereupon he voluntarily returned to confinement.
Supporting text
Malik, Al-Shafi'i, Abu Thawr, and Ibn al-Mundhir state that the punishment must be established everywhere because God’s command for its establishment is absolute in all places and times. Al-Shafi'i further specified that if the army commander is neither the Imam nor the governor, he should delay it until the Imam arrives, as enacting hudud belongs to the Imam. Abu Hanifa holds that neither statutory punishments nor retribution are to be carried out in the land of war, nor upon returning.