Title: Fiqh of Jihad
Author: Dr. Yusuf Al-Qaradawi
Publisher: Wahba Bookshop
Year: 2009
Number of Pages: 1,439
In the seventh section of the valuable book Fiqh Al-Jihad, the erudite Sheikh Yusuf Al-Qaradawi answered the question: When does fighting end? In the eighth section, which we will review in this article, Sheikh Al-Qaradawi answers the title's question: What happens after fighting ends?
In this section, Sheikh Al-Qaradawi discusses six main issues: (1) Rulings on the covenant of protection and security and asking for it; (2) Stance toward enemy captives; (3) Stance toward Muslim captives; (4) War spoils and their rulings; (5) Abode of Islam and abode of war; and (6) Covenanted citizens in terms of their rights and duties.
In the first chapter of this section, Sheikh Al-Qaradawi discusses the rulings on protection and asking for it. He states that when Islam provides security and adequate protection to a person at war with Muslims, this entails many rights that are broader and more elaborate than those provided by contemporary laws to a foreigner who enters a foreign country. The reason is that when a Muslim observes the rights of the one seeking security, he considers such rights as the rulings of the Islamic Shari`ah and the obligations of his religion. The Muslim believes that he shall be rewarded by Allah for such observance and that otherwise he would incur Allah's punishment. This is the best incentive for Muslims to observe the rights of those who seek their protection.
Protection Can Be Given By State or By Individuals
The covenant of security is valid whether it comes from individuals or from the State. The one who seeks protection to hear the Words of Allah and to learn the rulings of Islam should be granted that protection and should then be escorted to a secure place. Any doubt should be interpreted in favor of the one seeking protection. Imam Ibn Qudamah mentioned in his book Al-Mughni that when any member of the enemy seeks protection for himself or herself or for other unnamed enemies, all of them should not be killed. Sheikh Al-Qaradawi comments on that by saying, "See how those faqihs are cautious regarding people's lives and are most cautious with respect to bloodshed. Doubt should always be interpreted in favor of the one seeking protection. This is the justice of the Shari`ah. This also indicates the sanctity of blood in Islam and that Islam does not proscribe killing of anyone except for those who deserve to be killed. If there is some doubt whether someone's sanctity is preservable or not, the former should be given preponderance, and suspicion should be interpreted in favor of the one seeking protection."
Entering Muslim Land Without Covenant of Protection
Ibn Qudamah says, "If a warrior against Islam enters the land of Islam without being provided with a pledge of protection, we should study the case well: If the warrior has something to sell in the land of Islam and it is customary for him or her to enter the area without receiving such pledge of protection, then he or she should not be harmed." Imam Ahmad says, "If Muslims are at sea and see non-Muslim traders heading for the land of Islam, they should not face or fight them. All warriors against Islam who enter the land of Islam for trade should be protected and should not be confronted."
Limitation of State's Provision of Protection
In the context of the current situation, where there dominate ignorance and whims and the fear of providing protection for foreigners, I do not have any objection regarding the regulation of this issue in light of the public exigencies of the Muslim community and under necessary restrictions and conditions so that things are not left open to misinterpretation by anyone. In fact, wicked enemies of the Ummah can exploit this permission and make machinations to gain such protection through deceiving some good but naïve Muslims.
Muslim's Duty Upon Entering Land of War Under Covenant of Protection
Faqihs assert that a Muslim who enters the land of the enemy under the covenant of protection is prohibited from betraying the enemy regarding their wealth. Such betrayal is prohibited because the Muslim has been provided with the said protection on condition of not betraying the enemy. If this is not explicitly expressed, the meaning is clearly implied. The opposite also holds true: Anyone from the land of war comes to our land under our protection and then betrays us will be breaching his or her covenant with us.
In the second chapter, Sheikh Al-Qaradawi covers the stand toward the enemy's prisoners of war. He states:
Islam obligates Muslims to deal humanely with prisoners of war so that their dignity is preserved, their rights are observed, and their humanity is protected. The Noble Qur'an considers prisoners of war among the vulnerable categories that deserve compassion, charity, and care, including the needy and the orphans in society. The Qur'an and the Sunnah pay due attention to these categories. Allah (Exalted and Glorified be He) says in the Qur'an, (And they give food out of love for Him to the poor and the orphan and the captive: We only feed you for Allah's Sake; we desire from you neither reward nor thanks) (Al-Insan 76:8-9). In another Qur'anic verse, Allah addresses His prophet Muhammad with respect to the captives of the Battle of Badr saying, (O Prophet! say to those of the captives who are in your hands: If Allah knows anything good in your hearts, He will give to you better than that which has been taken away from you and will forgive you, and Allah is Forgiving, Merciful) (Al-Anfal 8:70). Allah orders the Prophet to address the captives in a lenient manner so that their hearts may soften and they may become more attracted to Islam.
In the Battle of Badr, the Prophet (peace and blessings be upon him) established an important tradition regarding the release of captives: The one who does not have the ransom can instead provide a service to the Muslim community. The Prophet (peace and blessings be upon him) asked the literate captives from the polytheists to teach a number of Muslim children how to read and write as their ransom. The Prophet was not worried about the influence of those polytheists on the minds of Muslim children, because eradication of illiteracy would not entail implantation of any thoughts or beliefs. In addition, they were in the middle of Muslim society, which supervised and monitored the entire process.
International Conventions on Captives and Our Stand Toward Them
There are several international treaties and conventions in force today that regulate the treatment of prisoners of war. They prohibit their being tortured, treated severely, or killed.
Unfortunately, we now see that major world powers do not respect these treaties and conventions when whims and bias dominate. The prisoners of war at the US concentration camp in Guantanamo Bay are a clear example of this. The US has treated them in an extremely inhumane manner, from the time of their arrest, herding them to Cuba, cuffing their hands and feet, blinding their eyes, sealing their ears, and completely isolating them from the outside world. Many other details about these inhumane acts have been reported in newspapers and news agencies.
The Opinion I Adopt Regarding Prisoners of War
The opinion I adopt is that prisoners of war should be treated as explicitly stipulated in the Noble Qur'an. Allah says, (So, when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favor or let them ransom (themselves) until the war terminates. That (shall be so); and if Allah had pleased He would certainly have exacted what is due from them, but that He may try some of you by means of others; and (as for) those who are slain in the way of Allah, He will by no means allow their deeds to perish) (Muhammad 47:4). After capture, there are two options for the treatment of captives: Either to free them for Allah's Sake without ransom, in order to encourage them to love Islam through good treatment by Muslims; or to take ransom in exchange for releasing them, which is what the Prophet (peace and blessings be upon him) did with the approximately 70 captives of Badr. In other battles, he exchanged them for Muslim captives.
In the third chapter, Sheikh Al-Qaradawi deals with the stance toward Muslim captives. He starts by answering the question: Is it permissible for a Muslim fighter to accept being captured?
The answer is that it is permissible for a Muslim fighter to surrender and be a captive of disbelievers if he believes that this would be in his advantage and the advantage of his Ummah. However, he can refuse to surrender and be taken as a captive and, instead, defy death boldly. In this case, if he is martyred, this will be in the Cause of Allah.
Releasing Muslim Captives
If Muslim fighters are captured, what would then be the stance? Would they be left in the hands of their captors, or should Muslims do their best to release them from the yoke of captivity? What is the ruling on that? And is it desirable or obligatory?
No one would say that it is permissible to leave Muslim captives in the hands of their enemies forever; rather, Muslims should try hard to release them by any means.
Look at Zionists in this regard: They do everything, sacrifice money and souls, and carry out military operations to free their captured soldiers. It is then our duty to do that and free our captives.
Islam uses every means to free slaves from serfdom and even prescribes that zakat should be paid to help set slaves free (see Al-Baqarah 2:177). Moreover, it orders Muslims to conclude contracts with slaves who would like to pay for their freedom. Allah says, (And (as for) those who ask for a writing from among those whom your right hands possess, give them the writing if you know any good in them, and give them of the wealth of Allah which He has given you) (An-Nur 24:33).
If Islam does all this to set slaves free, would not it try to release captives?
Releasing Captives of Covenanted Citizens
It is noteworthy that what applies to Muslim captives applies as well to captives from among covenanted citizens (i.e., non-Muslim citizens of Muslim countries). Efforts should be made to release them from captivity because they have the same rights and duties enjoyed by Muslim citizens. In the fourth chapter, Sheikh Al-Qaradawi touches upon the topic of spoils of war and rulings pertaining to them. He first differentiates between the nature of war at the time of the Prophet and the ensuing times — when a fighter would provide himself with arms, food, and all other needs — and the nature of war at the present time — when countries pay billions to have strong armed forces.
Sheikh Al-Qaradawi believes that distributing war spoils at the Prophet's time was related to the then prevalent circumstances of war. The situation has now changed. Moreover, these rulings are not obligatory; rather, they should be related to the causes and reasons. In his book Al-Muwafaqaat, Imam Ash-Shatibi stipulates an important rule in this regard: The basis with rituals is to perform them as acts of worship and abide by them without paying much attention to the causes and reasons behind them. As for customs, transactions, and matters of daily life, we should consider the reasons, causes, and objectives behind them.
If `Umar Ibn Al-Khattab contemplated the Qur'anic text related to the distribution of war spoils in Surat Al-Anfal (lit. War Spoils) and restricted it to exclude land and property, we also have the right in this age — in which military and financial conditions have changed — to contemplate the Qur'anic text once again to understand it in light of the current reality. There is nothing in such text, if it is well understood, that prevents us from Ijtihad (i.e., juristic reasoning) to change the old ruling on distributing war spoils. This follows the steps of the old ruling, which was undoubtedly valid in its age, but not in ours.
Through this insightful understanding based on Shar`i foundations, we can refute the allegations of modern secularists who claim that rulings of the Shari`ah are not suitable for our age, referring to the rulings on war spoils stipulated, for example, in Surat Al-Anfal. Thanks to Allah, we find the refutation of such allegations and the solution in the first verse of the same Surah.
In the fifth chapter, Sheikh Al-Qaradawi discusses the concepts of land of Islam andland of war. He tackles an important issue that has been widely discussed by some contemporary faqihs and intellectuals, that the above-mentioned distinction of lands (into land of Islam and land of war) is an innovation of faqihs and that there is no proof on it. However, Sheikh Al-Qaradawi contends that we could understand it if such an accusation came from secularists and Orientalists, but not from faqihs.
Origin of Distinction in the Noble Qur'an
In fact, if we contemplate the Noble Qur'an, we can find implicit references to such distinction. Allah says, (And it does not behoove a believer to kill a believer except by mistake, and whoever kills a believer by mistake, he should free a believing slave, and blood money should be paid to his people unless they remit it as alms; but if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave (suffices), and if he is from a tribe between whom and you there is a covenant, the blood money should be paid to his people along with the freeing of a believing slave) (An-Nisaa' 4:92).
The above verse mentions three types of the people killed by mistake and shows the ruling on each one of them.
The first type is a believer killed by mistake while among other believers (in other words, in their homeland): (Whoever kills a believer by mistake, he should free a believing slave, and blood money should be paid to his people unless they remit).
The second type is a believer killed by mistake while not living among us, but in an enemy society. Therefore, the killer should provide some expiation — (the freeing of a believing slave (is prescribed)) — but there is no blood money to be paid, because the deceased lived in a society that is at war with ours, that is, in an enemy country. Therefore, Allah says, (If the deceased belonged to a people at war with you and he was a believer; the freeing of a believing slave (suffices)). In this case, giving his or her family the due blood money would strengthen them in fighting Islam and Muslims.
The third type in the verse is one who lives in another society that is not at war with ours but with whom there is a treaty and alliance of nonaggression, peaceful coexistence, solidarity in peace and war, etc. In this case, the killer must pay blood money and offer expiation: (And if he is from a tribe between whom and you there is a covenant, the blood money should be paid to his people along with the freeing of a believing slave).
The verse clearly indicates different lands and refers to them through referring to people: "a people at war with you" and "a people with whom you have a treaty of mutual alliance". People are thus divided into enemies and allies and into warriors and peaceful people. It is not surprising then that the lands of these people are divided into lands of peace and lands of war, according to the stance of their people.
In light of the above, we can say that this verse refers to the three types of lands, though it does not use the exact Fiqhi terminology. In addition, there are two other verses at the end of Surat Al-Anfal that refer to the same distinction. Allah says, (Surely those who believed and fled (their homes) and struggled hard in Allah's way with their property and their souls, and those who gave shelter and helped — these are guardians of each other; and (as for) those who believed and did not fly, not yours is their guardianship until they fly; and if they seek aid from you in the matter of religion, aid is incumbent on you except against a people between whom and you there is a treaty, and Allah sees what you do. And (as for) those who disbelieve, some of them are the guardians of others; if you will not do it, there will be in the land persecution and great mischief) (Al-Anfal 8:72-73).
In the above text, people are divided into four types:
1) The believers, the Muhajirun (i.e., Immigrants from Makkah to Madinah) and the Ansar (i.e., Helpers, inhabitants of Madinah who supported the Prophet), who live in the land of Islam. 2) The believers who remain in their land, which is at war with Muslims, and do not immigrate to the land of Islam. 3) The disbelievers who have a treaty with Muslims. 4) The other disbelievers who do not have a treaty with Muslims.
Basis of This Concept in Sunnah and Traditions of Companions
In addition to the Qur'anic references, we find references, if not explicit expressions, in the Prophet's Sunnah and the traditions of his Companions (may Allah be pleased with them all) that mention the land of Islam and the land of Hijrah. As related in Sahih Muslim, Buraydah said: Whenever the Messenger of Allah (peace and blessings be upon him) appointed anyone as a leader of an army or detachment, he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: "When you meet your enemies who are disbelievers, invite them to three courses of action. If they respond to any one of these, you also accept it and withhold yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then, invite them to migrate from their lands to the land of Muhajirun and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirun. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the spoils of war or Fai' except when they actually fight with Muslims (against the disbelievers)" (Book 19, Jihad and Expedition, 4294).
The land of Muhajirun referred to here is the land of Islam. In his book At-Tabaqaat, Ibn Sa`d reports that Salamah ibn Nufayl Al-Hadrami narrated that the Messenger of Allah (peace and blessings be upon him) said, "The ground of the land of Islam is the Levant [i.e., the region covering Syria, Lebanon, Jordan, and Palestine]."In Sahih Al-Bukhari and Sahih Muslim, Ibn `Umar (may Allah be pleased with him) narrated that the Prophet (peace and blessings be upon him) prohibited taking the Noble Qur'an to the land of the enemy.
Distinction of Lands is Logical and Not Arbitrary
However, even if we accept that the distinction of lands — whether dual (land of Islam and land of war) or tripartite (land of Islam, land of war, and land of treaty) — is the result of the mere Ijtihad of faqihs without being based on the Qur'an or the Sunnah, as may be claimed, the question is: Is it a logical and reasonable distinction or an arbitrary one not based on a reasonable foundation or valid heavenly text?
It is not that easy to accuse faqihs of innovating something like this and devising a ruling that has its own serious effects on international relations and its consequences of prohibitions, allowances, and other impacts without a reasonable logical basis;Fiqh is defined as the knowledge of Shar`i rulings derived from their detailed proofs.
Essence of Land of War and Land of Islam
When can we consider a land to be of Islam or war? Faqihs differ widely in this regard. There is no space here to mention all the details, which can be found in books of fiqh, both past and present. In brief, they believe that the land of Islam is the land in which the following three conditions are fulfilled:
1) Muslims are the ones who have authority and power, even if the majority of the inhabiting people are not Muslims. Some say that this would be fulfilled if only the rulers are Muslims. 2) Islamic rulings — such as those related to family and civil status — as well as Islamic rituals — such as building mosques, observing Jumu`ah(i.e., Friday) Prayer and congregational prayer, and fasting during Ramadan — are applied, even if partially. 3) Muslims are secure due to their religion and covenanted citizens are secure due to their covenant.
Can Land of Islam Turn Into Land of War?
There is still an important question to be addressed: If one specific land is established as the land of Islam, can this ruling change and later turn into a land of war? If so, in what situation?
Various opinions are given by faqihs in this respect:
First opinion: The land of Islam can never turn into a land of war in any situation, even if its people and rulings change.
Second opinion: The land of Islam can turn to be a land of war once disbelievers seize it, such as when the enemy army invades and occupies it, as happened when Britain occupied Egypt and Iraq; Italy occupied Libya; France occupied Tunisia, Algeria, and Morocco; the Netherlands occupied Indonesia, etc.
Third opinion: According to Abu Yusuf and Muhammad, the Hanbalis, and some Zaidis, the land of Islam turns to be a land of war once the rulings of disbelief appear therein.
Fourth opinion: The land of Islam does not turn into a land of war when rulings of disbelief appear therein or when disbelievers control it, as long as its Muslim people can stay there to defend their religion and observe Islamic rituals such as Adhan (i.e. call to Prayer), Jumu`ah Prayer, congregational prayers, and Eid (religious feast) Prayer.
Fifth opinion: The land of Islam only turns into a land of war when three criteria are met, as mentioned by Muhammad At-Tamartashi, author of Tanweer Al-Absaar:
1) Rulings of disbelief dominate therein and rulings of Muslims are not implemented. 2) It is connected to the land of war and there is no land of Islam in between. 3) Muslims, due to their religion, and covenanted citizens, due to their covenants, are no longer secure.
Sheikh Al-Qaradawi favors the opinion of Imam Abu Hanifah, who has reservations regarding considering the land of Islam as a land of disbelief and war. He says that it remains the same because "certainty is not abrogated by suspicion." This is the opposite case of the land of war that turns into a land of Islam even without certainty, because Islam dominates, and nothing is superior to it.
Separation of Part of Land of Islam and Its Waging War Against Muslims
Another important question is that of the condition of adjacency to the land of Islam: What is the ruling if a part of the land of Islam becomes an independent entity that is an enemy to Muslims, usurps their land, and disperses them all over the world by force, torture, mass murder, and massacre, as is the case today with the Zionist state of Israel? Can we consider it a part of the land of Islam? The issue here is that we should defend this land. But how can we do that while it is fighting against us with all its might?
Can we divide, separate, or adapt the rulings in this case? This should be considered to be a part of the land of Islam that has been usurped in front of our eyes. Consequently, the duty of the Ummah is to restore it jointly in due course. This should be a collective obligation that does not lapse with time, especially as some of our faqihs — such as the Shafi`is — are of the opinion that the land of Islam never turns into a land of war.
At the same time, this usurped land and the entity established thereon that is at war with us attacks our sanctities and sacred locations and sheds the blood of our brothers on the land of Israa' and Mi`raaj (i.e., journey of Prophet Muhammad from Makkah to Al-Quds and then to the heavens), so it should be considered a land of war from the point of view to which the rulings of the land of war apply.
In other words, historically speaking, it is a usurped Islamic land and, according to reality, it is an enemy land of war. I think that this point of view should outweigh the others or at least deserves consideration.
Ruling If Disbelieving Country Takes Over Muslim Country
According to the Shafi`is, it is clear that a Muslim country remains Muslim and never turns into a land of war.
Scholar Abd Al-Karim Zaidan poses an important question in his book Ahkaam Adh-Dhimiyyin Wa Al-Musta'manin: "Can the land of Islam become a land of war if it is seized by a disbelieving country?"
The brief answer, derived from the opinions of Imam Al-Isbijabi and Imam Al-Halawani, is that the land of Islam does not turn into a land of war once it is taken over by a disbelieving country, as long as the rulings of Islam are applied therein and it is not connected to the land of war.
Fiqhi Description of Our World Today
The important question here is: How should we classify our world today? Does it consist of a land of Islam, a land of war, and a land of treaty? Or has this classification ended forever, as some contemporary scholars and researchers believe?
In my opinion, there is still some room for this classification. We cannot say that the land of Islam has come to an end and has no place in our modern world of globalization because it is no longer divided according to a religious basis. This reason cannot be taken for granted. If others have excluded religion from their lives and constitutions, we have not, and we are not allowed to do that as long as Islam remains our religion and our identity rests on the Shari`ah, by which our main reference is established.
All Muslim Countries Are Lands of Islam
I believe that all countries referred to as Islamic countries and inhabited by a Muslim majority are lands of Islam, even if some of them do not follow the Shari`ah in all its aspects or adopt secularism, such as Turkey since the time of Kemal Ataturk.
It is enough for us that these countries are originally and historically Islamic, the majority of their people are Muslims, and their rulers are Muslims, even if only officially and nominally.
The Entire World Is a Land of Treaty Except for the Zionist Entity
Moreover, for Muslims, the entire world is a land of treaty, except for the Zionist entity of Israel. We are connected to this surrounding world by the UN Convention, as all Muslims are members of the UN.
Israel Alone Is Land of War
There remains one country that is considered the land of war for Muslims: The Zionist entity of Israel, which has usurped our land through deception and brute force. One century ago, it had no presence in the land of prophecies, the land of Israa' and Mi`raaj, the land of Palestine.
Therefore, Islamic Fiqh considers Israel the land of war for Muslims, because it occupied a piece of their land, adopted the replacing settling occupation, and expelled its people from their land by force and replaced them with others. It is obligatory for Muslims to restore this piece of their land and give it back to its people. This is obligatory on the people of Palestine first, and if they are unable to do so, it becomes obligatory on their neighbors, starting with the nearest and widening gradually until it involves all Muslims.
In the sixth chapter, Sheikh Al-Qaradawi deals with the rights of covenanted citizens. He mentions these rights as follows:
1) Protection from external aggression 2) Protection from internal injustice 3) Protection of blood and souls 4) Protection of wealth 5) Protection of honor 6) Security in weakness, old age, and poverty 7) Freedom of belief and building of churches in Muslim countries 8) Freedom of work and earning money 9) Freedom of accommodation and movement 10) Holding state positions except for the positions dominated by religious hue such as imamate, presidency, leadership of the army, judging among Muslims, supervising Sadaqah (i.e., voluntary charity), etc.
Duties of Covenanted Citizens
These are the rights of covenanted citizens as stipulated by the Islamic Shari`ah. In other words, these are the rights of non-Muslim citizens in a Muslim society. What about their duties under Islam?
Duties of these covenanted citizens are limited to the following:
1) Payment of Jizyah (i.e., poll tax required from non-Muslims living in an Islamic state), land tax, and commercial tax. These are their financial duties.
2) Compliance with rulings of Islamic law in civil transactions, etc.
3) Respect for rituals and feelings of Muslims.
