Chapter 75

It should not exceed the duration of the Treaty of Hudaybiyyah, no matter the circumstances! If the Muslims possess strength, they must fight the polytheists after the expiration of the period. If the Imam (ruler) does not possess strength, there is no harm in renewing the duration for a similar or shorter period. ¶

In 'Al-Muhadhdhab', regarding the same topic, it is stated: 'It is not permissible to conclude a truce for a territory or a vast region except by the Imam or someone appointed by the Imam. If the Imam is dominant, consider: if there is no benefit (maslaha) in the truce, it is not permissible to conclude it, based on the saying of Allah the Almighty: "So do not weaken and call for peace while you are superior; and Allah is with you." If there is a benefit in it, such as the hope of their conversion to Islam, the payment of Jizya, or their assistance against another enemy, then it is permissible to make a truce... If the Imam is not dominant, such as when there is weakness and scarcity among the Muslims and strength and abundance among the polytheists, or if the Imam is dominant but the enemy is at a distance and reaching them requires prohibitive costs, it is permissible to conclude a truce for a period necessitated by need. Its maximum duration is ten years, because the Messenger of Allah (peace be upon him) made a truce with Quraish at Hudaybiyyah for ten years.' ¶

I (the author) say: It is understood from the foregoing that the interest of Islam and the Muslims is the axis upon which the conclusion of treaties with the enemy should revolve. The estimation of this interest rests with the Caliph of the Muslims or those authorized in this matter. There are no precise, fixed standards for estimating this interest. ¶

Mahjoub Abdul-Nour says in this regard: 'The jurists restricted the Imam's right to conclude a peace treaty on behalf of the Muslims to the consideration of public interest (maslaha), but they did not mention specific criteria for this interest in the majority of cases, although some of them leaned towards mentioning examples that can serve as a guide for the interest they stipulated.' ¶

The Imam—such as the weakness of the Muslims and the strength of their enemy, or the hope that those under a treaty might accept Islam, or the payment of the Jizya... (1). ¶

Furthermore, Sheikh Taqi al-Din al-Nabhani mentions some of the motives and purposes that lead Muslims to conclude treaties with the enemy—including the realization of public interest (maslaha)—stating: ¶

'The permissibility of a truce (hudna) is conditional upon the existence of a benefit required by jihad or the dissemination of the Da'wah (call to Islam). This is because the Messenger of Allah (ﷺ), before his departure to Al-Hudaybiyyah, was informed that there was collusion between the people of Khaybar and Makkah to attack the Muslims (2). He promptly moved to attack Khaybar immediately upon his return from Al-Hudaybiyyah. He also moved to send envoys to kings and princes, inviting them to Islam, which indicates that the truce of Al-Hudaybiyyah was for a benefit related to jihad and the spreading of the Da'wah, as he was able—by concluding a truce with Quraysh—to dedicate himself to the war against Khaybar and to calling the kings and princes to Islam' (3). ¶

He further states: 'It is permissible for the Islamic State to conclude good-neighborliness treaties with neighboring countries, just as it is permissible to conclude non-aggression treaties with non-neighboring countries for a specified period, if it sees in that a path for the Islamic Da'wah, or a protection for the Muslims, or any interest for the Muslims, Islam, or the progress of the Islamic Da'wah. For the Messenger of Allah (ﷺ) entered into a treaty with (Bani Mudlij and Bani Damrah) (4), to secure the route his army would take to fight his enemy. And he entered into a treaty with (Yuhanna ibn Ru'bah) at (Tabuk) (5), to secure the state’s borders from the direction of the Romans on the borders of the Levant (Bilad al-Sham)' (6). ¶

I say: The word 'maslaha' (interest/expediency), which is a condition for the legitimacy of treaties with the enemy, encompasses every legitimate cause that invites Muslims to enter into such treaties. It also encompasses every legitimate purpose intended to be achieved through them. In our contemporary era, while Muslims have fallen behind other nations and advanced states in the fields of science, industry, technology, and military equipment, it may be in the interest of the Muslims to conclude treaties with some of these states, such that it leads to the transfer of their capabilities in these fields to Muslim lands. This would realize a benefit that outweighs any potential harm that might arise from such treaties, as Imam al-Nawawi indicated earlier. Furthermore, in this era, when we find colonialist powers searching for any pretext to justify—in the eyes of the world—their aggressive actions against Muslims, and waiting for any suitable opportunity to seize their wealth, fragment their unity, and destroy their vital infrastructure... when we find the colonialist powers in this state, the interest of Islam and the Muslims dictates that those in authority avoid everything that would cause those deceitful powers to reveal their claws or show their teeth. In such circumstances, they are obliged to enter into legitimate treaties with the enemy where the benefit for Islam and the Muslims is greater than the harm, in order to block the path to greater dangers and more severe evils. This must be accompanied by a simultaneous effort toward serious and productive treatment of the reality of weakness, humiliation, and disgrace in which Muslims live due to their enmities, fragmentation, division, and backwardness. Ultimately, perhaps what has been mentioned points to the legitimate reasons and purposes—both stated and unstated—that call upon Muslims to conclude treaties with the enemy. Let us now move on to the next issue. The Second Issue: Treaties with non-Islamic states on the condition of paying jizya to the Muslims. We will discuss this issue briefly in two points: 1. The first point: The evidence for the legitimacy of such a treaty. 2. The second point: The opinions of the jurists regarding the legitimacy of treaties with other peoples and states on the condition of paying jizya to the Muslims. ¶

1 - First Point: The evidence for the legitimacy of such a treaty. The evidence for the legitimacy of such a treaty (muwada'a) is found in Sahih al-Bukhari under the chapter heading: 'Chapter: If the Imam makes a peace treaty with the king of a village, does it apply to the rest of them?' - It states: 'Abu Humayd al-Sa'idi reported: We went on an expedition with the Prophet (ﷺ) to Tabuk, and the King of Ayla gifted the Prophet (ﷺ) a white mule and gave him a garment (burd), and the Prophet (ﷺ) wrote a letter to him regarding their coastal territory (bahr).' In Fath al-Bari, it states: 'His statement, "and wrote for him regarding their bahr": meaning their land/country. Or it refers to the people of their coast (ahl bahrihim), because they were inhabitants of the seashore. This means he confirmed them upon the jizya they had committed to.' It also mentions, citing Ibn al-Munayyir: 'The king who sent the gift sought the preservation of his kingdom, and his kingdom only persists through the persistence of his subjects. Therefore, it is understood from this that his treaty is a treaty for his subjects...' Ibn Hajar then says: 'Ibn Battal stated that the scholars are in consensus that when the Imam makes peace with the king of a village, the rest of the inhabitants are included in that peace.' I (the author) say: The aforementioned hadith indicates that when leaders of other peoples and states—who are from the Dar al-Harb—enter into a treaty of peace (muwada'a) with Islamic states, the security (aman) necessitated by that treaty includes not only the leaders but also the subjects under their rule. Therefore, it is not permissible for Muslims, in this situation, to harm them in any way. And when that treaty is conditional upon the payment of a specific jizya that these peoples and states pay to the Muslims—whether that jizya is in cash, commodities, or the like—war against them is forbidden by the Shariah as long as they remain committed to fulfilling that condition. However, when they refuse to fulfill the stated condition, war against them becomes legitimate again, just as it was before the treaty. ¶

It is recorded in the Sirah of Ibn Hisham that the treaty concluded between the Prophet ﷺ and Yuhanna, the King of Ayla, was based on the payment of a specified jizya. He states: 'When the Messenger of Allah ﷺ reached Tabuk, Yuhanna ibn Ru'bah, the ruler of Ayla, came to him, made peace with the Messenger of Allah ﷺ, and paid him the jizya.' Al-Baladhuri records that this jizya amounted to three hundred dinars. ¶

It appears—as suggested in the commentary on the hadith regarding the King of Ayla in Sahih al-Bukhari—that the treaty made with this king was of the nature of 'muwaada'ah' (a truce or cessation of hostilities). That is, it was an external treaty not based on the 'dhimma' contract (protected status), submission to the Islamic legal system, or the obligation of the Islamic state to defend the territory of Ayla and its inhabitants. ¶

Consequently, the jizya committed to by the King of Ayla was of the nature of a 'fidyah' (ransom), which the payer provides solely in the hope of averting combat. It does not carry the same implications as the other type of jizya, which entails the annexation of the territories paying it into the Islamic state, the inclusion of its people under the dhimma of the Muslims, and their consideration as subjects of the state. ¶

In this regard, Al-Baladhuri says: 'Any group of people under treaty for whom the Muslims do not fight to defend [from others], and who continue to have their own laws applied to them within their own territory, are not considered Ahl al-Dhimma. Rather, they are Ahl al-Fidyah; hostility is withheld from them as long as they withhold it, and their treaty is fulfilled as long as they fulfill it.' ¶

It is worth noting here that considering this jizya in external peace treaties as a form of 'fidyah' is from the perspective of those who pay the jizya. However, from the perspective of the Muslims, the collection of this jizya is considered a form of Jihad; for part of Jihad is that the wealth of the disbelievers is made lawful [for the state] just as their lives are made lawful, and the case at hand falls under this category, even if the permissibility here is [governed by specific conditions]. ¶

In the case of a treaty, it is restricted to the specific amount of wealth upon which the treaty was contracted; therefore, it is not permissible to increase it without the consent of the other party. This is a summary of the first point. ¶

2. The second point: The opinions of jurists regarding the legitimacy of treaties with non-Muslim peoples and states, conditioned upon the payment of jizya to the Muslims. ¶

The jurists established the legitimacy of this type of peaceful treaty with the enemy when necessity or public interest (maslaha) demands it, just as they established the invalidity of such legitimacy when it is devoid of any need or interest calling for it. ¶

- It is stated in 'Fath al-Qadir', one of the Hanafi texts: "If the Imam deems it advisable to conclude a truce (muwada'a) with the people of war, and that the Muslims should receive wealth in return—it is permissible; for if it is permissible without wealth, then it is more so with wealth, as it is of greater benefit. However, this applies when the Muslims have a need. If there is no such need, they should not conclude a truce with them... Then he says—taking their wealth breaks their power and diminishes their resources; thus, taking it for this reason is a form of jihad, not a wage for abandoning it!"(1). ¶

The meaning of the latter phrase in this text—as previously indicated—is that Muslims do not abandon jihad and combat against the enemy merely for the sake of obtaining jizya or ransom, as if it were a wage for abandoning the jihad that is religiously obligatory. Rather, they suspend fighting the enemy for a specific period under a treaty conditioned by jizya because of the Muslims' need for that treaty, and because it is deemed more beneficial in achieving the intended interest than fighting. Accordingly, if the interest were found to be best served by concluding such a treaty without jizya or ransom, Muslims should be bound by it, even if devoid of those material benefits. This confirms that when jizya is paid to Muslims in peaceful treaties, provided it is conditioned, it is not a wage for abandoning mandatory combat. ¶

It is also mentioned in 'Fath al-Qadir', citing al-Sarakhsi’s 'Al-Mabsut': "If they (i.e., the people of war) conclude a treaty with the Muslims on the condition that they pay a known amount every year, and on the condition that..." ¶

The Imam enforces the laws of the Muslims upon them in their own lands, but he should only do so if it is beneficial for the Muslims; for by this truce (muwada'a), they do not commit to the laws of Islam, nor do they cease to be considered 'Ahl Harb' (people of war). Ceasing hostilities with the people of war is not permissible unless it is in the best interest of the Muslims. ¶

In 'Al-Siyar al-Kabir' and its commentary, it is stated regarding this: 'It is not appropriate to conclude a truce with the polytheists if the Muslims possess strength, because this involves abandoning or delaying the mandated combat, which an Amir should not do without necessity. If the Muslims lack the strength to face them, there is no harm in a truce, as the truce is better for the Muslims in such a situation. Allah the Almighty has said: "But if they incline to peace, then incline to it [also] and rely upon Allah." This is also part of military strategy, for a fighter must first preserve his own strength and then seek supremacy and victory when able to do so.' It further states regarding jizya stipulated within a truce: 'What is taken from them through a truce (i.e., wealth or other agreed-upon items) is lawful and beneficial for the Muslims.' ¶

In 'Qawanin al-Ahkam al-Shar'iyya' from the Maliki school, there is evidence that the basis for the legitimacy of treaties with the enemy is the existence of public interest (maslaha), not merely the acquisition of wealth. It states: 'If it (the peace treaty) is for a purpose other than public interest, it is not permissible, even if the enemy offers wealth. If it is for a valid interest, such as inability to fight generally or at a specific time, then it is permissible, whether with or without compensation.' ¶

In 'Al-Muhadhdhab', regarding Shafi'i fiqh, the author states on this issue: 'It is permissible to contract a truce for wealth taken from them, because there is an interest in doing so for the Muslims.' ¶

In 'Al-Mughni', from the Hanbali school, in commenting on the permissibility of treaties being contingent upon interest and the consideration of the Muslims' welfare, it says: 'This is not permissible except for the benefit of the Muslims, such as when they are too weak to fight them.' ¶

fighting them, or there is hope for their conversion to Islam through a truce, or hope for their payment of jizya and commitment to the laws of the religion, or other such interests. He then says: 'It is permissible to conclude a truce with them without compensation, for the Prophet (ﷺ) made a truce with them on the day of Hudaybiyyah without compensation. It is also permissible to do so in exchange for wealth that the Imam collects from them; for if it is permissible without compensation, then it is a fortiori (more appropriately) permissible with it (1).' ¶

In 'Al-Ahkam al-Sultaniyya' by al-Farra, within the context of explaining the effects of fulfilling or failing to fulfill the payment of wealth stipulated in the treaty under discussion, it states: 'The wealth offered for a truce is of two types: First, that they offer it for a specific time and do not make it a continuous tribute (kharaj) (2)... This serves as a security (aman) for them to refrain from fighting in this jihad, and it does not prevent jihad against them in the future. Second, that they offer it every year, in which case it becomes a continuous tribute and the security becomes established... It is not permissible to renew jihad against them as long as they adhere to the payment of wealth, because the truce is established upon it. If any of them enters the Abode of Islam (Dar al-Islam), they are granted security for their life and property by virtue of the truce agreement. If they withhold the payment, the truce is nullified, the security is lifted, and jihad against them becomes obligatory, just like other belligerents (Ahl al-Harb)' (3). ¶

Having said this, we conclude here the discussion on the issue regarding a peaceful treaty conditional upon the payment of jizya to the Muslims—with other nations and states that are not subject to the Islamic system. We now move on to the third issue. ¶

Third Issue: A treaty involving the payment of wealth by Muslims to other states in exchange for halting combat against the Muslims. ¶

This issue was previously addressed during an earlier research section titled 'A Brief Overview of War Accounts and their Cessation through Treaties in the Prophetic Biography,' within the context of the discussion on the Battle of the Trench (Ghazwa al-Khandaq). ¶

Therefore, we shall not dwell long on this issue, and we will confine our discussion—briefly—to the following points: ¶

1. First Point: The evidence from Shariah texts regarding the permissibility of a treaty involving the payment of money by Muslims in exchange for halting combat. 2. Second Point: The opinions of the jurists of the schools of thought regarding the legitimacy of treaties conditional upon paying money to the enemy if necessity dictates. 3. Third Point: Some of the Umayyads making peace with the enemy and paying them money in exchange for sparing the Muslims from fighting. ¶

1. First Point: The evidence from Shariah texts regarding the permissibility of a treaty involving the payment of money by Muslims in exchange for halting combat. The Shariah text mentioned by the jurists regarding this issue is the Prophet’s (PBUH) negotiation with Al-Harith al-Ghatafani, one of the commanders of the coalition against the Muslims who surrounded Medina during the Battle of the Trench. The negotiation centered on the Muslims giving the Ghatafan faction of the allied forces a specified portion of Medina’s harvest for that year, on the condition that this (Harith) would sow discord among the parties, break this alliance, lift the siege of Medina, and cause the allies to return to their homes. ¶

As we have mentioned, we have already presented those negotiations and their outcome in a previous discussion, along with the jurists' indications of the legitimacy of such an action in times of necessity (1); therefore, there is no need to repeat it, to avoid lengthiness and redundancy where possible. ¶

2. Second Point: The opinions of the jurists of the schools of thought regarding the legitimacy of a treaty conditional upon paying money to the disbelievers if necessity dictates. - In the Hanafi Fiqh, it is stated in Bada'i al-Sana'i': "There is no harm in Muslims requesting peace from the disbelievers and paying money for it if they are forced to do so, based on His saying—the Almighty and Exalted—: 'And if they incline...' ¶

(1) See the report and the conclusion of the negotiations regarding this agreement in (Majma' al-Zawa'id) 6/132-133. Al-Haythami said: It was narrated by Al-Bazzar and Al-Tabarani on the authority of Abu Hurairah. He then mentioned that its chain of narration includes 'Muhammad ibn 'Amr,' whose hadith is Hassan (good), and the rest of its narrators are trustworthy. See also the hadith in (Kashf al-Astar 'an Zawa'id al-Bazzar) No. (1803), Vol. 2/331-332. ¶

Allah (SWT) has permitted reconciliation (sulh) for us in absolute terms. Therefore, it is permissible with or without compensation. Because reconciling for wealth is intended to repel the immediate evil of the disbelievers and to prepare for the future—it falls under the category of striving (mujahadah) with wealth and self, and is therefore permissible. ¶

It is stated in 'Tanwir al-Absar' and its commentary: 'It is permissible to reconcile by abandoning jihad against them in exchange for wealth, either from them or from us, for the sake of benefit; based on the saying of the Almighty: "But if they incline to peace, then incline to it also." Ibn Abidin commented on the phrase "or from us," saying: "Meaning, wealth that we give to them if the Imam fears destruction for himself and the Muslims in any way possible." ¶

Furthermore, in 'al-'Inayah' and 'Fath al-Qadir,' the legitimacy of such a truce (muwada'ah) is supported by the negotiations that took place between the Prophet (PBUH) and some of the commanders of the allied armies that besieged Medina. In 'al-'Inayah,' after establishing the prohibition for the Imam of the Muslims to make a truce with the disbelievers by paying them wealth—due to the indignity therein—it says: "Except if he fears destruction, meaning for himself and for all other Muslims; in that case, there is no harm in paying the wealth. This is because it is narrated that when the polytheists surrounded the Trench and the Muslims reached the state about which Allah informed us: "There, the believers were tested and shaken with a severe shaking," the Messenger of Allah (PBUH) sent to 'Uyaynah ibn Hisn and requested him to return with those who were with him, on the condition that he would give him one-third of the fruits of Medina each year. But he refused, demanding half." ¶

In 'al-Siyar al-Kabir' and its commentary: "And if the Muslims fear the polytheists and request a truce with them, but they refuse..." ¶

Regarding the polytheists' demand that the Muslims pay them wealth to secure a truce: there is no harm in this when absolute necessity arises. (After citing the report of the negotiations concerning peace in exchange for some of Medina’s fruits during the Battle of the Trench, the author states): This hadith clarifies that in times of weakness, there is no harm in such a truce (muwada'a), as the Messenger of Allah ﷺ desired it when he sensed weakness among the Muslims. In times of strength, however, such a truce is not permissible. (He then added): It contains—meaning the peace involving the payment of wealth to the disbelievers—a sense of humiliation (istidhlaal), which is why the Ansar disliked giving up some of their produce. It is not permissible for Muslims to accept humiliation except when necessity is established. ¶

I say: We conclude from the above that the Hanafis, regarding this treaty where Muslims pay wealth to the disbelievers, argue for its legitimacy based on several proofs, summarized as follows: ¶

A—The scriptural text permitted treaties with disbelievers in an absolute sense—that is, it is not restricted by the absence of an obligation for Muslims to pay wealth to the disbelievers. By virtue of this unrestricted legitimacy of treaties, it is permissible to conclude them with or without compensation. ¶

As al-Kasani, author of 'al-Bada'i', expressed: Since paying wealth to disbelievers to avert fighting against Muslims carries a sense of humiliation, it is not permissible for Muslims to resort to such a treaty unless necessity is realized. ¶

B—The report of the negotiations for peace with the disbelievers during the Battle of the Trench is evidence for the legitimacy of a peace treaty including wealth paid by Muslims when in a state of weakness, and its lack of legitimacy in other circumstances. This is because when the Prophet ﷺ sensed from the Ansar the ability to stand firm against the disbelievers, and they said, 'By Allah, we will give them nothing but the sword,' he refrained from finalizing that peace. ¶

C—The obligation to avert destruction from the Muslims. That is, when a treaty with the disbelievers by paying them wealth is determined to be the path to avert destruction from the Muslims, such a treaty becomes mandatory to protect them. ¶

Regarding the avoidance of destruction. It is stated in (Al-Hidayah) in this regard: "Because repelling destruction is obligatory by any possible means"(1). ¶

This is the stance of the Hanafis. In the other schools of jurisprudence, the issue does not depart from the framework mentioned by the Hanafis regarding the legitimacy of such treaties conditioned on Muslims paying money to the disbelievers. ¶

- Regarding the Malikis - It is stated in (Qawanin al-Ahkam al-Shar'iyya): Among the conditions for the validity of peace with disbelievers is that it be free from any corrupt condition (shart fasid). They illustrated a corrupt condition as: "Giving them wealth without any state of fear. However, it is permissible in the state of fear"(2). ¶

- Regarding the Shafi'i fiqh - In (Mukhtasar al-Muzani), concerning the truce (muhadana) between the Imam of the Muslims and the disbelievers, it is stated: "Al-Shafi'i (may Allah have mercy on him) said: ... It is not permissible to make a truce with them on the basis that Muslims give them anything at all; because being killed for Muslims is martyrdom, and Islam is too noble to give a polytheist something so that he may refrain from [harming] his people. For his people, whether they are killers or killed, are victorious in the truth, except in a situation where they fear total annihilation (istilam), in which case they may give from their wealth, or ransom a captive - there is no harm in this, for this is a situation of necessity"(3). We previously quoted from (Mughni al-Muhtaj) regarding this issue, the text of which states: "If necessity dictates paying them (i.e., paying money to the disbelievers) — such as if they were torturing captives and we ransomed them, or they surrounded us and we feared annihilation — then paying is permissible. In fact, according to the most correct (asah) view, it is obligatory"(4). ¶

Similar views are found in the Hanbali school of jurisprudence regarding the payment of wealth to disbelievers in a peace treaty with them. ¶

In Al-Mughni: 'If necessity demands it, specifically the fear that Muslims might perish or be taken captive, then it is permissible; for it is lawful for a captive to ransom himself with wealth, and the same applies here.'(1) ¶

This has already been discussed in the context of the Battle of the Trench and the lessons derived from it—during the brief overview of wars and treaties in the Prophetic biography. Further opinions of scholars have been presented regarding the legitimacy of conditional treaties involving the payment of wealth to disbelievers in times of necessity. They have based this on the negotiations that took place between the Prophet ﷺ and some of the allied forces during that battle, in order to lift the siege of Medina in exchange for a certain portion of the Muslims' fruit produce to be paid to them.(2) ¶

We now come to the final point of this issue. ¶

3. Third point: Some Umayyad rulers making peace with the enemy and paying them wealth in exchange for ceasing hostilities against the Muslims. The Islamic state may pass through severe crises and critical circumstances, whether internal or external, compelling it to seek a truce with its enemy, even if it means satisfying some of their greed for the wealth the state possesses. The state is fully aware that this is a dangerous path and a rugged course, yet it forces itself to undertake it in order to avert something more heinous and atrocious, according to the estimation of those in authority tasked with choosing between evils. ¶

This occurred during some of the early periods of Islamic history at the hands of some Umayyad Muslim leaders. In the year 70 AH, during the reign of Abd al-Malik ibn Marwan—as al-Baladhuri stated—'A Roman cavalry force set out toward Mount al-Lukkam(3) led by one of their commanders, then proceeded to Lebanon. Many Jarajima, Nabataeans, and fugitive slaves of the Muslims joined them. Consequently, Abd al-Malik was forced to make peace with them for one thousand dinars every week, and he also made peace with the Roman tyrant with wealth paid to him to keep him occupied from fighting against the Muslims, fearing that if he marched into the Levant, he would overcome it.'(4) ¶

He followed the precedent of Muawiya in his peace treaty when he was preoccupied with the war against the people of Iraq, for he made peace with them on the condition that they would pay him wealth and provide hostages, whom he settled in Baalbek (1). ¶

It goes without saying that the power of taqwa (God-consciousness) within those in authority, their intense zeal for the interests of the Muslims, their extreme concern for Islamic honor, along with vigilant awareness of all matters—so that errors are avoided as much as possible in assessing circumstances—is what makes the scale of necessity or darrurah (exigency), which is referred to when resorting to such treaties, precise in its estimation and judgment. Thus, it does not tilt in favor of private interests against public interests. However, when the souls of those holding the reins of the Ummah's decision-making are devoid of these values, the scale of necessity in such a state becomes a 'private scale' manipulated by the whims of a specific group whose misfortune has afflicted the people! In such a case, the wealth and resources of the Ummah are made a bounty for its enemies under the pretext of necessity. Although this may deceive some, it does not deceive many. Most importantly, this alleged and exposed argument—the argument of necessity or exigency—does not exonerate its proponents in the scale of Islam for what they have undertaken, despite all the illegitimate attempts to forcefully confer legitimacy upon it. ¶

Moving on to another issue in this chapter: 4 - The Fourth Issue: Other Treaties According to Circumstances. - We have learned from the legitimate treaties in Islam—in this chapter and previous discussions—the model of the Treaty of Hudaybiyyah, under which fighting ceases between Muslims and those at war (ahl al-harb), even if this peace does not entail the payment of jizya by the belligerent countries, their submission to the Islamic system, or the granting of permission for the Islamic call to spread therein, or the cessation of harm against the believers among their subjects. - We also learned of the model of the peace treaty with the King of Aila—Yuhanna ibn Ru’ba—under which war is prevented between the disbelievers and the Islamic state, provided they pay jizya to the Muslims, even if this does not entail incorporating the lands of non-Muslims into the Islamic state or their subjection to the Islamic system. (1) Futuh al-Buldan, by al-Baladhuri: p. 164. ¶

Just as we also recognized a model of peace (sulh) that the Messenger of Allah (PBUH) intended to conclude, but it did not materialize because it became clear that the compelling necessity (darura) for it was not urgent. This was the peace of the Trench (al-Khandaq) which was not finalized. Had it been concluded, it would have required the Muslims to pay a specific portion of their wealth to the disbelievers in order to halt the fighting against the Muslims and lift the siege upon them. ¶

I say: We have known, in the preceding discussion, these models of peace or treaties. In the issue before us now, we want to know: Is it mandatory for the Islamic state, when it resorts to concluding a treaty with other states, for that treaty to be restricted to these aforementioned models or those similar to them that have been reported in the Prophetic biography (Seerah) or the purified Sunnah? ¶

The answer to this question is that the Shariah texts that approved treaties did not restrict their legitimacy to a specific model. Rather, they came absolute (mutlaq), free from any restriction, as in the saying of the Almighty: 'And if they seek help of you for the religion, then you must help, except against a people between whom and you is a treaty (mithaq).' The word 'mithaq' in this verse is an absolute term, not restricted. Therefore, it applies to any treaty, whether it is of the type previously mentioned or another type of treaty necessitated by the interest of Islam and the Muslims—naturally, within the limits of Shariah—resulting in the cessation of fighting between the Islamic state and other states. ¶

Consequently, it is permissible for the Islamic state—for example—to conclude a treaty with another state whereby that state cedes only its foreign sovereignty to the Muslims while retaining its internal sovereignty. Meaning, it would be subordinate to the Islamic state in its foreign policy, while at the same time being independent from it in its internal policy and system of governance. I say: It is permissible for the Islamic state to conclude such a treaty with other states when it sees in it the realization of an interest for Islam and the Muslims. Thus, such a treaty becomes one of the reasons for halting the fighting between the Islamic state and this treaty-bound state. ¶

For example, it is permissible for the Islamic State to enter into a treaty with another state on the condition that it applies certain Islamic systems and rulings within its internal policy—such as adhering to the rulings of Islam regarding its tourism activities. The authorities may perceive that such a treaty achieves a clear benefit for the Muslims. ¶

It is well-understood that such a condition in a treaty can be significant for the Islamic State, particularly when it observes Muslims visiting that state for tourism. In this case, the aforementioned condition serves to protect the conduct and morals of the Muslims, and it also brings the lifestyle of the treaty-bound state closer to the lifestyle of the Islamic State. This diminishes the sense of disparity in the way of life felt by the people of those lands—a sense which, when it intensifies, usually generates prejudice towards one’s own way of life and aversion to the lifestyle of others. ¶

Thus, eliminating or weakening this sense in the hearts of the people of those lands through such a treaty becomes a pathway to accepting the idea of living according to the Islamic way. Consequently, this makes it easier for them, little by little, to accept the idea of submitting to the Islamic system on the basis of the 'dhimma' (covenant of protection). Thereby, such a treaty becomes a means for Islamic Dawah (invitation) in a practical way; that is, through non-Muslims living under its shadow and touching the reality of the ideas and rulings it brings to people. It is known that a call towards something that has a living, embodied reality is different from a theoretical call to ideas and rulings that have no reality or tangible existence, especially in terms of its impact on the souls. ¶

Furthermore, the Islamic State may enter into a common market treaty with certain non-Islamic states, provided that the Islamic economic system is applied to this market. Or, at the very least, with the reservation that the Islamic State is not bound by any activities, relations, or governing systems of that market that contradict Islam. This is permissible provided that no harm falls upon the Muslims, and that such a treaty serves as a path to strengthening the Islamic State and introducing the Dawah. ¶

Bearing them (responsibilities), and removing psychological barriers against Islam and its people from the hearts of the subjects of those states... which paves the way for them to embrace the Islamic ideology or to enter into the protection (dhimmah) of the Muslims. - Likewise, it is permissible for the Islamic state to conclude treaties or agreements with other hostile states regarding the suspension of fighting while the war is ongoing, based on a short-term truce from time to time, in order to clear the theater of operations and battlefields of martyrs, the wounded, and corpses... if there is a benefit for the Muslims in doing so. - It is also permissible to conclude treaties or agreements with belligerent states to refrain during combat from bombing places of worship, residential areas, archaeological buildings, etc., that are not used for military affairs... to the extent that current circumstances demand. In summary, it is permissible for the Islamic state to enter into any treaties with the enemy that the interest of the state requires. The reality of these treaties, in truth, is that they are truce agreements with the enemy in which fighting stops under specific conditions that vary from one treaty to another. These conditions—as Al-Qalqashandi states in 'Subh al-A'sha'—: 'Have no fixed limit or strict rule; rather, they depend on what necessity dictates in that truce according to the prevailing situation' (1). Furthermore, Al-Qalqashandi provides examples of what the authority in Islam may stipulate to his counterpart in belligerent lands during a truce or treaty: 'For example, that he (the enemy) shall be a friend to his (the Muslim ruler's) friends and an enemy to his enemies... and that he shall restrain anyone who seeks to violate the peace—if they are among those who obey him—and fight them if they are among his opponents. And that if someone from their kingdom commits a crime, he must produce him or exact compensation for the crime... Among these is also the condition that he keeps the hands of those in his group away from his (the Muslim) lands... and that he does not prepare an army against them, nor attempt any invasion...'" (1) Subh al-A'sha fi Sina'at al-Insha by Al-Qalqashandi: 9/14. ¶

Among these is the stipulation that he (the enemy) release all those held in his custody who are shackled by the yoke of captivity. ¶

Among these is the stipulation that he provides a payment to be brought to him annually, or that he hands over whatever he chooses of fortresses, citadels, borderlands, and coastal areas, whether they were taken from Muslim lands or those he (the Muslim leader) desires to wrest from the lands of the disbelieving kings with whom he is concluding a truce. ¶

Among these is the stipulation that he must not interfere with the merchants of his (the Muslim) kingdom or the travelers of his subjects, whether by land or sea, with any form of harm or injury, neither to their persons nor their wealth. ¶

Among these is the stipulation that if there remains of the truce period a duration similar to that which requires mobilization (1), he must inform him of whether he desires a truce or otherwise. ¶

Among these is the stipulation that if the truce period expires for one of the two parties while he is in the lands of the other, he shall be granted safe conduct (aman) until he reaches a place of safety... in addition to other countless matters upon which an agreement may be reached (2). ¶

This is what is mentioned in 'Subh al-A'sha', which depicts for us an image of the treaties and conditions that used to occur between Muslim leaders and the leaders of other countries. ¶

We now move to the final issue of this chapter. ¶

The Fifth Issue: Aman (Safe Conduct) - What is it? What is the evidence for its legitimacy? And what is its role in halting combat with the ahl al-harb (people of war)? ¶

It has been previously indicated that the purpose of the chapters of this book and the issues we address in each is not to discuss them in an expansive manner. Rather, the purpose is to address them in terms of their status as causes for halting combat in Islam, even if from an individual or partial perspective... and we may address some of these. ¶

(1) Ta'bi'ah: This refers to preparation and equipping for battle. In 'Al-Nihayah' by Ibn al-Athir (3/168): 'I mobilized (a'bba'tu) the army... and I mobilized them (ta'bi'atan)... meaning, I arranged them in their positions and prepared them for war.' (2) Subh al-A'sha fi Sina'at al-Insha', by Al-Qalqashandi: 14/9-11. ¶

These chapters contain some detailed discussion of the issues, as we estimate that the objective dominating this entire section necessitates such an expansive treatment of these matters. ¶

Accordingly, we do not see a need in this issue to address all the aspects that the jurists have covered. Therefore, it suffices here to define what we mean by 'aman' (security/safe-conduct) in this context, what the evidence for its legitimacy is, and what its role is in cessation of hostilities with the belligerents (ahl al-harb). ¶

First: What is Aman? As the author of Fath al-Qadir states: 'It is a form of muwada'ah (cessation of hostilities/truce).' ¶

The author of al-'Inayah justified classifying it as a type of muwada'ah by saying: 'Because it involves the cessation of fighting, just like a muwada'ah.' Based on this, the aman we intend here is the mutual security granted by each party to the other, between the Muslims and the ahl al-harb, whether the recipient of the aman is an individual or more, according to the details provided by the jurists. This clarifies that aman is a type of muwada'ah—that is, the treaty mentioned previously. ¶

We have specified that the intended meaning of aman here is the mutual security granted by each party to the other, and have not restricted it to the security Muslims grant to the disbelievers. This is because what concerns us in this issue is the security that serves as a cause for stopping the war against the ahl al-harb, even if on an individual or partial basis. This cessation of hostilities may result from the security granted by the disbelievers to the Muslims, just as it may result from the security granted by the Muslims to the disbelievers. Consequently, in both cases, it is mandatory to stop the fighting against these ahl al-harb, whether they are the ones granting the security or the ones receiving it from the Muslims. Hence, it becomes evident that this aman is a type of muwada'ah. However, since the aman granted to the ahl al-harb might be from a single Muslim to one or more members of the enemy, and that individual Muslim does not possess the authority (wilayah) to contract a muwada'ah or a formal treaty with non-Muslims, it was necessary to provide the evidence for the legitimacy of this aman we are discussing; for the evidence for the validity of a formal treaty is not sufficient. ¶

This issue is addressed when the holder of authority is not the one granting aman (asylum/protection) to the combatant disbelievers (ahl al-harb). ¶

Second: The proof for the legitimacy of an ordinary Muslim granting aman to the enemy in this matter. ¶

The evidence for this legitimacy is what is narrated in Sahih al-Bukhari, from Ali ibn Abi Talib (may Allah be pleased with him), from the Prophet (peace be upon him), who said: 'The dhimmah (covenant/protection) of the Muslims is one; so whoever violates the protection of a Muslim, upon him is the curse of Allah, the angels, and all people.' ¶

It is stated in Fath al-Bari: 'The dhimmah of the Muslims is one: meaning their aman is valid. Thus, if a kafir is granted aman by one of them, it becomes haram for others to harm him.' ¶

Hence, when Umm Hani (may Allah be pleased with her) granted aman to two of her mushrik in-laws on the day of the Conquest of Mecca, the Prophet (peace be upon him) upheld her aman. This prevented her brother, Ali ibn Abi Talib (may Allah be pleased with him), from acting against them, which he had intended to do. These two men were among those not covered by the general aman that the Prophet (peace be upon him) had granted to the people of Mecca—except for a few individuals he named due to their prior crimes—because they had not adhered to the conditions of that aman, which were to remain in their homes or in the mosque; instead, they had carried weapons and fought on that day. ¶

In Sahih al-Bukhari and Muslim, regarding this story, it is narrated from Umm Hani: 'I went to the Messenger of Allah (peace be upon him) in the year of the Conquest and found him bathing, while his daughter Fatimah was shielding him. I greeted him, and he asked: 'Who is this?' I said: 'I am Umm Hani bint Abi Talib.' He said: 'Welcome, Umm Hani.' When he finished his bath, he stood and prayed eight rak'ahs, wrapped in a single garment. When he finished, I said: 'O Messenger of Allah...' ¶