The Fiqh of Jihad – in Times of War

From Reliance of the Traveler – A Shafii Fiqh Manual

0 9 . J I H A D


(0: Jihad means to war against non-Muslims, and is etymologically derived from the word mujahada, signifying warfare to establish the religion. And it is the lesser jihad. As for the greater jihad, it is spiritual warfare against the lower self (nafs), which is why the Prophet (Allah bless him and give him peace) said as he was returning from jihad,

“We have returned from the lesser jihad to the greater jihad.”

The scriptural basis for jihad, prior to scholarly consensus (def: b7) is such Koranic verses as:

(1) “Fighting is prescribed for you” (Koran 2:216);

(2) “Slay them wherever you find them” (Koran 4:89);

(3) “Fight the idolators utterly” (Koran 9:36);

and such hadiths as the one related by Bukhari and Muslim that the Prophet (Allah bless him and give him peace) said:

“I have been commanded to fight people until they testify that there is no god but Allah and that Muhammad is the Messenger of Allah, and perform the prayer, and pay zakat. If they say it, they have saved their blood and possessions from me, except for the rights of Islam over them. And their final reckoning is with Allah”;

and the hadith reported by Muslim,

“To go forth in the morning or evening to fight in the path of Allah is better than the whole world and everything in it.”

Details concerning jihad are found in the accounts of the military expeditions of the Prophet (Allah bless him and give him peace), including his own martial forays and those on which he dispatched others. The former consist of

he ones he personally attended, some twenty- seven (others say twenty-nine) of them. He fought in eight of them, and killed only one person with his noble hand, Ubayy ibn Khalaf, at the battle of UhuJ. On the latter expeditions he sent others to fight. himself remaining at Medina, and these were forty-seven in number.)

THE OBLIGA TORY CHARACTER OF JIHAD

09.1 Jihad is a communal obligation (def: c3.2). When enough people perform it to success- fully accomplish it, it is no longer obligatory upon others (0: the evidence for which is the Prophet’s saying (Allah bless him and give him peace),

“He who provides the equipment for a sol- dier in jihad has himself performed jihad,”

and Allah Most High having said:

“Those of the believers who are unhurt but sit behind are not equal to those who fight in Allah’s path with their property and lives. Allah has pre- ferred those who fight with their property and lives a whole degree above those who sit behind. And to each. Allah has promised great good” (Koran 4:95).

Ifnoneofthoseconcernedperformjihad, and it does not happen at all, then everyone who is aware that it is obligatory is guilty of sin, ifthere was a possibility of having performed it. In the time of the Prophet (Allah bless him and give him peace) jihad was a communal obligation after his emigration (hijra) to Medina. As for subsequent times, there are two possible states in respect to non- Muslims.

The first is when they are in their own coun- tries, in which case jihad (def: 09.8) is a communal obligation, and this is what our author is speaking of when he says, “Jihad is a communal obliga- tion,” meaning upon the Muslims each year.

The second state is when non-Muslims invade a Muslim country or near to one, in which case jihad is personally obligatory (def: c3.2) upon the inhabitants of that country, who must repel the non-Muslims with whatever they can).

09.2 jihad is personally obligatory upon all ‘those present in the battle lines (A: and to flee is an enormity (dis: pH)) (0: provided one is able to fight. If unable, because of illness or the death of one’s mount when not able to fight on foot, or because one no longer has a weapon, then one mayleave.Onemayalsoleaveiftheopposing non-Muslim army is more than twice the size of the Muslim force).

09.3 Jihad is also (0: personally) obligatory for everyone (0: able to perform it, male or female, old or young) when the enemy has surrounded the Muslims (0: on every side, having entered our territory, even if the land consists of ruins, wilder- ness, or mountains, for non-Muslim forces enter- ing Muslim lands is a weighty matter that cannot be ignored, but must be met with effort and struggle to repel them by every possible means. All of which is if conditions permit gathering (A: the above-mentioned) people, provisioning them, and readying them for war. If conditions do not permit this, as when the enemy has overrun the Muslims such that they are unable to provision or prepare themselves for war, then whoever is found by a non-Muslim and knows he will be killed if captured is obliged to defend himself in whatever way possible. But if not certain that he will be killed, meaning that he might or might not be, as when he might merely be taken captive, and he knows he will be killed ifhe does not surrender, then he may either surrender or fight. A woman too has a choice between fighting or surrendering if she is certain that she will not be subjected to lin indecent act if captured. If uncertain that she will be safe from such an act, she is obliged to fight, and surrender is not permissible).

WHO IS OBLIGED TO FIGHT IN JIHAD

09.4 Those ealled upon (0: to perform jihad when it is a communal obligation) are every able- bodied man who has reached puberty and is sane

9.5 The following may not fight in jihad:

(1) Someoneindebt,unlesshiscreditorgives him leave:

(2) or someone with at least one Muslim parent. until they give their permission;

unless the Muslims are surrounded by the enemy, in which case it is permissible for them to fight without permission.

09.6 It is offensive to conduet a military expe- dition against hostile non-Muslims without the ealiph’s permission (A: though if there is no caliph (def: 025), no permission is required).

09.7 Muslims may not seek help from non- Muslim allies unless the Muslims are considerably outnumbered and the allies are of goodwill towards the Muslims.

THE OBJECTIVES OF JIHAD

o9.R Thc caliph (025) makes war upon Jews, Christians, and Zoroastrians (N: provided he has first invited them to enter Islam in faith and prac- tice, and if they will not, then invited them to enter the social order of Islam by paying the non- Muslim poll tax (jizya, def: 01L4)-which is the significance of their paying it, not the money itself-while remaining in their ancestral reli- gions) (0: and the war continues) until they become Muslim or else pay the non-Muslim poll tax (0: in accordance with the word of Allah Most High,

“Fight those who do not believe in Allah and the Last Day and who forbid not what Allah and His messenger have forbidden-who do not prac- tice the religion of truth, being of those who have been given the Book-until they pay the poll tax out of hand and are humbled” (Koran 9:29),

the time and place for which is before the final des- cent of Jesus (upon whom be peace). After his

final coming, nothing but Islam will be accepted from them. for taking the poll tax is only effective until Jesus’ descent (upon him and our Prophet be peace), which is the divinely revealed law of Muhammad, The coming of Jesus does not entail a separate divinely revealed law, for he will rule by the law of Muhammad, As for the Prophet’s saying (Allah bless him and give him peace),

“I am the last, there will be no prophet after me,”

this does not contradict the final coming of Jesus (upon whom be peace), since he will not rule according to the Evangel, but as a follower of our Prophet (Allah bless him and give him peace)).

09.9 The caliph fights all other peoples until they become Muslim (0: because they are not a people with a Book, nor honored as such, and are not permited to settle with paying the poll tax (iizya») (n: though according to the Hanafi school, peoples of all other religions, even idol worship- pers, are permitted to live under the protection of the Islamic state if they either become Muslim or agree to pay the poll tax, the sale exceptions to which are apostates from Islam and idol worship- pers who are Arabs, neither of whom has any choice but becoming Muslim (al-Hidaya sharh Bidaya al-mubtadi’ (y21). 6.48–49)).

THE RULES OF WARFARE

09.10 It is not permissible (A: in Jihad) to kill women or children unless they are fighting against the Muslims. Nor is it permissible to kill animals, unless they are being ridden into battle against the Muslims, or if killing them will help defeat the enemy. It is permissible to kill old men (0: old man (shaykh) meaning someone more than forty years of age) and monks.

69.11 It is unlawful to kill a non-Muslim to whom a Muslim has given his guarantee of protec- tion (0: whether the non-Muslim is one or more than one, provided the number is limited, and the Muslim’s protecting them does not harm the Mus- lims, as when they are spies) provided the protect- ing Muslim has reached puberty, is sane, and does so voluntarily (0: and is not a prisoner of them or a spy).

09.12 Whoever enters Islam before being cap- tured may not be killed or his property confis- cated, or his young children taken captive.

09.13 When a child or a woman is taken captive, they become slaves by the fact of capture, and the woman’s previous marriage is immediately annulled.

09.14 When an adult male is taken captive, the caliph (def: 025) considers the interests (0: of Islam and the Muslims) and decides between the prisoner’s death, slavery, release without paying anything, or ransoming himself in exchange for money or for a Muslim captive held by the enemy.

If the prisoner becomes a Muslim (0: before the caliph chooses any of the four alternatives) then he may not be killed, and one of the other three alternatives is chosen.

09.15 It is permissible in jihad to cut down the enemy’s trees and destroy their dwellings.

TRUCES

09.16 (0: As for truces, the author does not mention them. In Sacred Law truce means a peace treaty with those hostile to Islam, involving a ces- sation of fighting for a specified period, whether for payment or something else. The scriptural basis for them includes such Koranic verses as:

(1) “An acquittal from Allah and His mes- senger…” (Koran 9:1);

(2) “If they incline towards peace, then incline towards it also” (Koran 8:61);

as well as the truce which the Prophet (Allah bless him and give him peace) made with Quraysh in the year of Hudaybiya, as related by Bukhari and Muslim.

Truces are permissible, not obligatory. The only one who may effect a truce is the Muslim ruler of a region (or his representative) with a seg- ment of the non-Muslims of the region, or the caliph (025) (or his representative). When made with other than a portion of the non-Muslims, or when made with all of them, or with all in a par- ticular region such as India or Asia Minor, then only the caliph (or his representative) may effect it, for it is a matter of the gravest consequence because it entails the nonperformance of jihad, whether globally or in a given locality, and our interests must be looked after therein, which is why it is best left to the caliph under any cir- cumstances, or to someone he delegates to see to the interests of the various regions.

There must be some interest served in mak- ing a truce other than mere preservation of the status quo. Allah Most High says,

“So do not be fainthearted and call for peace, when it is you who are the uppermost” (Koran 47:35).

Interests that justify making a truce are such things as Muslim weakness because of lack of numbers or materiel, or the hope of an enemy becoming Muslim, for the Prophet (Allah bless him and give him peace) made a truce in the year Mecca was liberated with Safwan ibn Umayya for four months in hope that he would become Mus- lim, and he entered Islam before its time was up. If the Muslims are weak, a truce may be made for ten years if necessary, for the Prophet (Allah bless him and give him peace) made a truce with Quraysh for that long, as is related by Abu Dawud. It is not permissible to stipulate longer than that, save by means of new truces, each of which does not exceed ten years.

The rulings of such a truce are inferable from those of the non-Muslim poll tax (def: 011); namely, that when a valid truce has been effected, no harm may be done to non-Muslims until it expires.)

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