Contents
Introduction by Shaykh Gibril F Haddad Glossary Defending the Transgressed By Censuring The Reckless Against The Killing
Of CiviliansInitial Question Excerpt from an Article by a Group called 'al-Muhajiroun'Shaykh Muhammad Afifi al-Akiti's FatwaFasl I. The Target: Maqtûl Fasl II. The Authority: Âmir al-Qitâl Fasl III. The Method: Maqtûl bih Hâsil (Legal Outcome)Masâ'il Mufassala (Various Questions)Tatimma (Conclusion)Select Bibliography
Introduction
In the Name of God, the All-Beneficent, the Most Merciful.
Gentle reader, Peace upon those who follow right guidance!
I am
honored to present the following fatwa or "response by a qualified Muslim
Scholar" against the killing of civilians by the Oxford-based Malaysian
jurist of the Shafi`i School and my inestimable teacher, Shaykh Muhammad
Afifi al-Akiti, titled
Defending the Transgressed by Censuring the Reckless against the
Killing of Civilians.
The Shaykh authored it in a few days, after I asked him to
offer some guidance on the issue of targeting civilians and civilian
centers by suicide bombing in response to a pseudo-fatwa by a deviant
UK-based group which advocates such crimes.
Upon reading Shaykh
Afifi's fatwa do not be surprised to find that you have probably never
before seen such clarity of thought and expression together with breadth
of knowledge of Islamic Law applied (by a non- native speaker) to define
key Islamic concepts pertaining to the conduct of war and its
jurisprudence, its arena and boundaries, suicide bombing, the reckless
targeting of civilians, and more.
May it bode the best start to
true education on the impeccable position of Islam squarely against
terrorism in anticipation of the day all its culprits are brought to
justice.
Dear Muslim reader,
as-Salâmu `alaykum wa-rahmatuLlâh:
Read this luminous
Fatwa by Shaykh Muhammad Afifi al-Akiti carefully and learn it.
Distribute it, publicize it, and teach it. Perhaps we will be counted
among those who do something to redress wrong, not only with our hearts as
we always do, but also with our tongues, in the fashion of the inspired
teachers and preachers of truth.
I have tried to strike the
keynote of this
Fatwa in a few lines of free verse, mostly to
express my thanks to our Teacher but also to seize the opportunity of such
a long-expected response to remind myself of the reasons why I embraced
Islam in the first place.
A TAQRIZ – HUMBLE COMMENDATION:
Praise to God Whose Law shines brighter than the sun!
Blessings
and peace on him who leads to the abode of peace!
Truth restores
honor to the Religion of goodness.
Patient endurance lifts the
oppressed to the heights
While gnarling mayhem separates like with
like:
The innocent victims on the one hand and, on the other,
Silver-tongued
devils and wolves who try to pass for just!
My God, I thank
You for a Teacher You inspired
With words of light to face down
Dajjal's advocates.
Allâh bless you, Ustadh Afifi, for
Defending the Transgressed
By Censuring the Reckless Against the
Killing of Civilians!
Let the powers that be and every actor-speaker high and low
Heed
this unique Fatwa of knowledge and responsibility.
Let every
lover of truth proclaim, with pride once more,
What the war-mongers
try to bury under lies and bombs:
Islam is peace and truth, the
Rule of Law, justice and right!
Murderous suicide is never
martyrdom but rather perversion,
Just as no flag on earth can ever
justify oppression.
And may God save us from all criminals, East
and west!By permission of Shaykh Afifi I have done some very light
editing having
to do mostly with style, spelling, or punctuation such
as standardizing
spacing between paragraphs, providing in-text
translations of a couple
of Arabic supplications, adding quotation
marks to mark out textual
citations, and so forth.
I also
provided the following alphabetical glossary of arabic terms not
already
glossed by the Shaykh directly in the text
May Allâh
Subhânahu wa-Ta'âlâ save Shaykh Muhammad Afifi here and hereafter,
may He reward him and his teachers for this blessed work and grant us its
much-needed benefits, not least of which the redress of our actions and
beliefs for safety here and hereafter.
Blessings and peace on
the Prophet, his Family, and all his Companions,
wal-hamdu liLlâhi Rabb al-'âlamîn.
G.F. Haddad
Day of Jumu`a after `Asr
1 Rajab
al-Haram 1426
5 August 2005
Brunei Darussalam
GLOSSARY
ahl = [1] people; [2] qualified adherents or practicioners
`aql
= intellect, reason
Ahâdith al-Ahkâm = hadîthic proof-texts
for legal rulings
`amal = deed, action
asl = see
usul
Âyât al-Ahkâm = Qur'ânic proof-texts for legal rulings
bâb
= chapter or legal subject
Banû Âdam = human beings
dâbit
= see
dawâbitdarûra = necessity
dawâbit =
pl. of
dâbit = standard or pricipal rule
Doctor Angelicus =
The Angelic Scholar, a title given to Thomas Aquinas,
the great theologian of the western Church.da`i = summoner or preacher
dunyâ = this world,
this life
fâ'ida = benefit
faqîh = see
fiqhfard `ayn = personal obligation
fard kifâya =
communal obligation
far`i = adj. from
far`, see
furu`fasl = see
fusûlfatwâ = legal
opinion, legal response
fiqh = Islamic jurisprudence, the
expertise of the
faqîh; adj.
fiqhî = legal
fitna
= strife, temptation, seduction, delusion, chaos, trial and
tribulation
fitra
= sane mind and soul, primordial disposition
fuqahâ' = pl. of
faqîh (q.v.)
furû` = pl. of
far`, [1] branches
(of the Law), secondary legal texts;
[2] corollaries, corollary legal principlesfusûl = pl. of
fasl = sections or legal
particulars
Hadîth = saying of the Prophet Muhammad, upon him
blessings and peace
halâl = lawful, permitted
harâm
= categorically prohibited, unlawful
hâsil = legal outcome
hukm [shar`i]
= legal status, legal ruling
Iblîs = Satan
Ihsân =
Excellence, the pinnacle of religious practice
Ijmâ` =
Consensus
ijtihâd = independent judgement, personal
decision
insâf = fairness, setting things right
Jâhilî
= lit. ignorant; a pre-Islamic or pagan Arab
Jamâ`a = the
Orthodox Community
Jamâl al-Shuhadâ' = The Beauty of Martyrs, the
title of the
murdered vizier Nizâm al-MulkJihâd = moral or military struggle by the
mujâhidkhilâf = (juridical) disagreement
khilâfiyya =
fem. adjective from
khilâf= having to do with (juridical) disagreementmadhhab = school of Law
makrûh = detestable,
abhorrent, abominable, disliked, legally offensive
maqâsid =
pl. of
maqsad, objective or ends
maqsad = see
maqâsidmasâ'il = pl. of
mas'ala = question or
legal discussion or case
masâ'il mufassala = detailed
questions and answers
mas'ala = see
masâ'ilmaslaha
= welfare, public/general good
mubâh = indifferently
permissible
mufassir = exegete
muftî = one who
formulates
fatwâs or formal legal responses
Muhaqqiq =
The Careful Examiner, a title given to Imâm al-Kurdî,
one of the last great jurist of our Schoolmujâhid = one who does
jihâd (q.v.)
mukallaf
= legally-responsible Muslim
mushâraka = mutual or reciprocal
matter
nafs = ego, self
nasîha = faithful, sincere
advice
qadâyâ = pl. of
qadîya = issue or legal
context
qâdî = judge in an Islamic court of law
qâ'ida
= see
qawâ'idqâtil nafsah = self-killer, suicide
qawâ'id
= pl. of
qâ'ida = maxim or legal principle
qawl =
saying or legal position
qitâl = warfare, battle
sabab al-wujûd
= raison d'être
sabr = patient endurance and fortitude
Sahâbî
= Companions of Prophet Muhammad, upon whom blessings and peace
Salaf
= Pious Predecssors, early authorities
shahîd, pl.
shuhadâ' = self-sacrificing believer
who dies for the sake of God alone, "martyr"shar`i = adj. legitimate in the eyes of the
Shari`a (Islamic Law), lawful, legalsiyar = military expeditions
sunna = way,
path
sûra = a chapter of the Qurân
Tâbi`î =
Successor of the Companions
tafakkur = reflection
tafsîl
= detailed legal discussion
tahluka = self-destruction
thaghrîr bil-nafs
= risking one's life
tatimma = conclusion
tawakkul
= reliance upon God
thawâbit = pl. of
thâbit = axiom
Umma
= the Muslim Community at large
usûl = pl. of
asl =
foundational principle; adj.
usûlîwahm = imaginative
faculty or emotions
wasâ'il = pl. of
wasîla, means
wasîla
= see
wasâ'il
Defending the Transgressed By
Censuring The Reckless Against
The
Killing Of Civilians
Fatwa
according to
the Madhhab of Imâm Shâfi'î
by
Shaykh Muhammad Afifi al-Akiti
Initial Question
If you have time to address this delicate issue for the benefit of this
mercied Umma which is reeling in fitna day in and day out, perhaps a few
blessed words might use a refutation of the following text as a
springboard?
I would like you to read the following article which
highlights some of the problems we are facing, and
[shows] why it is quite possible that young
Muslims turn to extremism. The article was issued by
"Al-Muhajiroun" not long ago, headed by Omar Bakri Mohammed, and
whatever our reservations about the man, it is the content I am more
concerned about, and it is possibly these types of writings which need to
be confronted head-on.
Excerpt from an Article by a Group called 'al-Muhajiroun':
AQD UL AMAAN: THE COVENANT OF SECURITY
The Muslims living in
the west are living under a covenant of security, it is not allowed for
them to fight anyone with whom they have a covenant of security, abiding
by the covenant of security is an important obligation upon all Muslims.
However for those Muslims living abroad, they are not under any covenant
with the kuffar in the west, so it is acceptable for them to attack the
non-Muslims in the west whether in retaliation for constant bombing and
murder taking place all over the Muslim world at the hands of the
non-Muslims, or if it an offensive attack in order to release the Muslims
from the captivity of the kuffar. For them, attacks such as the September
11th Hijackings is a viable option in jihad, even though for the Muslims
living in America who are under covenant, it is not allowed to do
operations similar to those done by the magnificent 19 on the 9/11. This
article speaks about the covenant and what the scholars have said
regarding Al Aqd Al Amaan - the covenant of security. [...]
Shaykh Muhammad Afifi al-Akiti's Fatwa
bismillahi r-rahman al-rahim
al-hamdulillah alladhi yahuddu l-harba wa-la yuhibbu l-mu'tadina
wa s-salatu wa-s-salamu 'ala qa'idi l-ummah alladhi huwa asbaru 'ala
adha l-a'da'i bi-futuwwatin kamilatin wa-muru'atin shamilatin wa-'ala
alihi wa-ashabihi wa-jayshihi ajma'in!
[In the name of God, the Merciful and Compassionate.
Praise be to God Who sets the boundaries of war and does not love
transgressors! Blessings and peace on the General of the Community, the
most patient of men in the face of the harm of enemies, with perfect
chivalry and complete manliness, and upon all his Family, Companions, and
Army!]
This is a collection of masâ'il, entitled:
Mudâfi' al-Mazlûm bi-Radd al-Muhâmil 'alâ Qitâl Man Lâ Yuqâtil
[Defending the Transgressed, by Censuring the Reckless against the
Killing of Civilians], written in response to the fitna reeling this mercied Umma, day
in and day out, which is partly caused by those who, wilfully or not,
misunderstand the legal discussions of the chapter on warfare outside its
proper contexts (of which the technical fiqh terminology varies
with bâb: siyar, jihâd, or qitâl), which have
been used by them to justify their wrong actions. May Allâh open our eyes
to the true meaning [haqîqa] of sabr and to the fact that
only through it can we successfully endure the struggles we face in this
dunyâ, especially during our darkest hours; for indeed He is with
those who patiently endure tribulations!
There is no khilâf that all the Shafi'i fuqahâ' of today and other
Sunni specialists in the Sacred Law from the Far East to the Middle East
reject outright [mardûd] the above opinion and consider it not only
an anomaly [shâdhdh] and very weak [wâhin] but also
completely wrong [bâtil] and a misguided innovation [bid'a dalâla]: the 'amalcannot at all be adopted by any mukallaf. It is
regrettable too that the above was written in a legal style at which any
doctor of the Law should be horrified and appalled (since it is an
immature yet persuasive attempt to mask a misguided personal opinion with
authority from fiqh, and an effort to hijack our Law by invoking
one of the many qadâya of this bâb while recklessly
neglecting others). It should serve to remind the students of
fiqh of the importance of the forming in one's mind and being aware
throughout of the thawâbit and the dawâbit when reading a
furû'text, in order to ensure that those principal rules have not
been breached in any given legal case.
The above opinion is problematic in three legal particulars
[fusûl]:
(1) the target [maqtûl]: without doubt, civilians;
(2) the authority for carrying out the killing [âmir al-qitâl]: as
no Muslim authority has declared war, or if there has been such a
declaration there is at the time a ceasefire [hudna]; and
(3) the way in which the killing is carried out [maqtûl bih]: since
it is either harâm and is also cursed as it is suicide [qâtil nafsah], or at the very least doubtful [shubuhât] in a way such that it
must be avoided by those who are religiously scrupulous [wara'].
Any sane Muslim who would believe otherwise and think the above to be not
a crime [jinâya] would be both reckless [muhmil] and deluded
[maghrûr]. Instead, whether he realizes it or not, by doing so he
would be hijacking rules from our Law which are meant for the conventional
(or authorized) army of a Muslim state and addressed to those with
authority over it (such as the executive leaders, the military commanders
and so forth), but not to individuals who are not connected to the
military or those without the political authority of the state
[dawla].
The result in Islamic jurisprudence is: if a Muslim carries out such an
attack voluntarily, he becomes a murderer and not a martyr or a hero, and
he will be punished for that in the Next World.
Fasl I. The Target: Maqtûl
The proposition:
"so it is acceptable for them to attack the non-Muslims in the
west", where
"non-Muslims"
can be taken to mean, and indeed does mean in the document, non-combatants,
civilians, or in the terminology of
fiqh: those who are not engaged
in direct combat [
man la yuqâtilu].
This opinion violates a well known principal rule [dâbit] from our
Law:
"la yajUzu qatlu nisA'ihim wa-la SibyAnihim idhA lam yuqAtilU"
[it is not permissible to kill their [i.e., the opponents'] women and
children if they are not in direct combat.]
This is based on the Prophetic prohibition on soldiers from killing women
and children, from the well known Hadith of Ibn 'Umar (may Allâh be
pleased with them both!) related by Imams Malik, al-Shafi'i, Ahmad,
al-Bukhari, Muslim, Ibn Majah, Abu Dawud, al-Tirmidhi, al-Bayhaqi and
al-Baghawi (may Allâh be well pleased with them all!) and other Hadiths.
Imam al-Subki (
may Allâh be pleased with him!) made it unequivocally clear what scholars
have understood from this prohibition in which the standard rule of
engagement taken from it is that: "[a Muslim soldier] may not kill any
women or any child-soldiers unless they are in combat directly, and they
can only be killed in self-defence" [al-Nawawi, Majmû', 21:57].
It goes without saying that men and innocent bystanders who are not direct
combatants are also included in this prohibition. The nature of this
prohibition is so specific and well-defined that there can be no legal
justification, nor can there be a legitimate shar'î excuse, for
circumventing this convention of war by targeting non-combatants or
civilians whatsoever, and that the hukm shar'î of killing them is
not onlyharâm but also a Major Sin [Kabira] and contravenes
one of the principal commandments of our way of life.
II. The Authority: Âmir al-Qitâl
The proposition:
"so it is acceptable for them to attack the non-Muslims in the west
whether in retaliation for constant bombing and murder taking place all
over the Muslim world at the hands of the non-Muslims,"
where it implies that a state of war exist with this particular non-Muslim
state on account of its being perceived as the aggressor.
This opinion violates the most basic rules of engagement from our Law:
"amru l-jihAdi mawkulun ila l-imAmi wa-ijtihAdihi wa-yalzamu r-ra'iyyata
TA'atuhu fImA yarAhu min dhalika"
[The question of declaring war (or not) is entrusted to the executive
authority and to its decision: compliance with that decision is the
subject's duty with respect to what the authority has deemed apropriate in
that matter.]
and
"wa-li-imamin aw amirin khiyarun bayna l-kaffi wa l-qitAli"[The
executive or its subordinate authority has the option of whether or not
to
declare war ].
Decisions of this kind for each Muslim state, such as those questions
dealing with ceasefire ['aqd al-hudna], peace settlement ['aqd al-amân] and the judgment on prisoners of war [al-ikhtâr fi asîr] can
only be dealt with by the executive or political authority [imâm]
or by a subordinate authority appointed by the former authority [amîr mansûbin min jihati l-imâm]. This is something Muslims take for granted from the authority of our
naql [scriptures] such that none will reject it except those who
betray their 'aql [intellect]. The most basic legal reason ['illa aslîyya] is that this matter is one that involves the public interest, and thus
consideration of it belongs solely to the authority:
li-anna hadhA l-amra mina l-masAliHi l-'Ammati
allati yakhtassu l-imAmi bi-n-naZari fI-hA.
All of this is based on the well known legal principle [qâ'ida]:
taSarrufu l-imAmi 'ala r-ra'iyyati manUTun bi l-maSlaHati
[The
decisions of the authority on behalf of the subjects
are dependent
upon the public good].
And:
fa-yaf'alu l-imAmu wujUban al-aHaZZa li-l-MuslimIna li-ijtihAdihi
[So the authority must act for the greatest advantage
of (all
of) the Muslims in making its judgement].
Nasîha: Uppermost in the minds of the authority during their
deliberation over whether or not to wage war should be the awareness that
war is only a means and not the end. Hence, if there are other ways of
achieving the aim, and the highest aim is the right to practice our
religion openly (as is indeed the case in modern day Spain, for example,
unlike in medieval Reconquista Spain), then it is better [awlâ] not
to go to war. This has been expressed in a few words by Imam al-Zarkashî (
may Allâh be pleased with him!):
wujUbuhu wujUbu l-wasA'ili lA l-maqASidi
[Its necessity is the necessity of means, not ends.]
The upshot is, whether one likes it or not, the decision and discretion
and right to declare war or jihâd for Muslims lie solely with the
various authorities as represented today by the respective Muslim states -
and not with any individual, even if he is a scholar or a soldier (and not
just anyone is a soldier or a scholar) - in the same way that an authority
(such as the qâdî in a court of law: mahkamah) is the only
one with the right to excommunicate or declare someone an apostate
[murtad]. Otherwise, the killing would be extra-judicial and
unauthorized.
Even during the period of the Ottoman caliphate, for example, another
Muslim authority elsewhere, such as in the Indian subcontinent, could have
been engaged in a war when at the same time the Khalifa's army was at
peace with the same enemy. This is how it has been throughout our long
history, and this is how it will always be, and this is the reality on the
ground.
Fasl III. The Method: Maqtûl bih
The proposition:
"attacks such as the September 11th Hijackings is a viable option in
jihâd,"where such attacks employ tactics - analogous to the Japanese
"
kamikaze" missions during the Second World War - that have been
described variously as self-sacrificing or martyrdom or suicide missions.
There is no question among scholars, and there is no
khilâf on this
this question by any
qâdî,
muftî or
faqîh, that this
proposition and those who accept it are without doubt breaching the
scholarly consensus [
mukhâlifun li-l-ijmâ'] of the Muslims since it
resulted in the killing of non-combatants; moreover, the proposition is an
attempt to legitimize the killing of indisputable non-combatants.
As for the kamikaze method and tactic in which it was carried out,
there is a difference of opinion with some jurists as to whether or not it
constitutes suicide, which is not only Haram but also cursed. In this,
there are further details. (Note that in all of the following cases, it is
already assumed that the target is legitimate - i.e., a valid military
target - and that the action is carried out during a valid war when there
is no ceasefire [fi hâl al-harb wa-lâ l-hudnata fihi], just as with
the actual circumstance of the Japanese kamikaze attacks.)
Tafsîl I: If the attack involves a bomb placed on the body
or placed so close to the bomber that when the bomber detonates it the
bomber is certain [yaqîn] to die, then the More Correct Position
[Qawl Asahh] according to us is that it does constitute suicide.
This is because the bomber, being also the maqtûl [the one killed],
is unquestionably the same as the qâtil [the immediate and active
agent that kills] =qâtil nafsah [self-killing, i.e. suicide].
Furu': If the attack involves a bomb (such as the lobbing of
a grenade and the like), but the attacker thinks that when it is detonated
, it is uncertain [zann] whether he will die in the process or
survive the attack, then the Correct Position [Qawl Sahîh] is that
this does not constitute suicide, and were he to die in this selfless act,
he becomes what we properly call a martyr or hero [shahîd]. This is
because the attacker, were he to die, is not the active, willing agent of
his own death, since the qâtil is probably someone else.
An example [sûra] of this is: when in its right place and
circumstance, such as in the midst of an ongoing fierce battle against an
opponent's military unit, whether ordered by his commanding officer or
whether owing to his own initiative, the soldier makes a lone charge and
as a result of that initiative manages to turn the tide of the day's
battle but dies in the process (and not intentionally at his own hand).
That soldier died as a hero (and this circumstance is precisely the
context of becoming ashahîd - in Islamic terminology - as he died
selflessly). If he survives, he wins a Medal of Honour or at the least
becomes an honoured war hero and is remembered as a famous patriot (in our
terminology, becoming a true mujâhid).
This is precisely the context of the mas'ala concerning the "lone
charger" [al-hâjim al-wahîd] and the meaning of putting one's life
in danger [al-taghrîr bil-nafs] found in all of the
fiqh chapters concerning warfare. The Umma's Doctor
Angelicus, Imâm al-Ghazâlî (
may Allâh be pleased with him!) provides the best impartial summation:
“If it is said: What is the meaning of the words of the Most High:
{wa-lA tulqU bi-aydIkum ila t-tahlukati}
{and do not throw into destruction by your own hands!}
(al-Baqara, 2:195)?
"We say: There is no difference [of opinion amongst scholars] regarding
the lone Muslim [soldier] who charges into the battle-lines of the
[opposing] non-Muslim [army that is presently in a state of war with his
army and is facing them in a battle] and fights [them] even if he knows
that he will almost certainly be killed. The case might be thought to go
against the requirements of the Verse, but that is not so. Indeed, Ibn
'Abbâs (may Allâh be well pleased with both of them!) says: [the meaning
of] "destruction" is not that [incident]. Instead, [its meaning] is to neglect
providing [adequate] supplies [nafaqa: for the military campaign;
and in the modern context, the state should provide the arms and
equipment and so forth for that for which all of this is done] in
obedience to God [as in the first part of the Verse which says:
{wa-anfiqU fI sabIli LlAhi}
{And spend for the sake of God}
(al-Baqara, 2:195)
]. That is, those who fail to do that will destroy themselves. [In another
Sahâbîauthority:] al-Barâ' Ibn 'Âzib [al-Ansâri (may Allâh be well
pleased with them both!)] says: [the meaning of] "
destruction" is [a Muslim] committing a sin and then saying: 'my repentance will not
be accepted'. [A
Tâbi'î authority] Abû 'Ubayda says: it [the
meaning of "
destruction"] is to commit a sin and then not perform a good deed after it before he
perishes. [Ponder over this!]
In the same way that it is permissible [for the Muslim soldier in the
incident above] to fight the non-Muslim [army] until he is killed [in
the process], that [extent and consequence] is also permissible for him
[i.e., the enforcer of the Law, since the `â'id (antecedent) here
goes back to the original pronoun [dâmir al-asl] for this
bâb: the muhtasib or enforcer, such as the police] in
[matters of] law enforcement [hisba].
However, [note the following qualification (qayd):] were he to
know [zanni] that his charge will not cause harm to the
non-Muslim [army], such as the blind or the weak throwing himself into
the [hostile] battle-lines, then it is prohibited [harâm], and
[this latter incident] is included under the general meaning
['umûm] of "destruction" from the Verse [for in this case, he will be literally throwing
himself into destruction].
It is only permissible for him to advance [and suffer the consequences]
if he knows that he will be able to fight [effectively] until he is
killed, or knows that he will be able to demoralize the hearts and minds
of the non-Muslim [army]: by their witnessing his courage and by their
conviction that the rest of the Muslim [army] are [also] selfless [qilla al-mubâla] in their loyalty to sacrifice for the sake of God [the closest modern
non-Muslim parallel would be 'to die for one's country']. By this, their
will to fight [shawka] will become demoralized [and so this may
cause panic and rout them and thereby be the cause of their battle-lines
to collapse].”
[al-Ghazali, Ihya', 2:315-6]
It is clear that this selfless deed which any modern soldier, Muslim or
non-Muslim, might perform in battle today is not suicide. It may
hyperbolically be described as a 'suicidal' attack, but to endanger one's
life is one thing and to commit suicide during the attack is obviously
another. And as the passage shows, it is possible to have both situations:
an attack that is taghrîr bil-nafs, which is not prohibited; and an
attack that is of the tahluka-type, which is prohibited.
Tafsîl II: If the attack involves ramming a vehicle into a
military target and the attacker is certain to die, precisely like the
historical Japanese kamikaze missions, then our jurists have
disagreed over whether it does or does not constitute suicide.
Qawl A: Those who consider it a suicide argue that there is
the possibility [zannî] that the maqtûl is the same as the
qâtil (as in
Tafsil I
above) and would therefore not allow for any other qualification
whatsoever, since suicide is a cursed sin.
Qawl B: Whereas those who consider otherwise, even with the
possibility that themaqtûl is the same as the qâtil, will
allow some other qualification such as the possibility that by carrying it
out the battle of the day could be won. There are further details in this
alternative position, such as that the commanding officer does not have
the right to command anyone under him to perform this dangerous mission,
so that were it to be sanctioned, it could only be when it is not under
anyone else's orders and is the lone initiative of the concerned soldier
(such as in defiance of the standing orders of his commanding officer).
The first of the two positions is the Preferred Position [muttajih]
among our jurists, as the second is the rarer because of the vagueness of
a precedent, and its legal details are fraught with further difficulties
and ambiguities, and its opposing position [muqâbil] carries such a
weighty consequence (namely, that of suicide, for which there is
Ijmâ' that the one who commits suicide will be damned to committing
it eternally forever).
In addition to this juristic preference, the first position is also
preferable and better since it is the original or starting state
[asl], and by invoking the well-known and accepted legal principle:
al-khurUju mina l-khilAfi mustaHabbun[To avoid controversy is preferable.]
Finally, the first position is religiously safer, since owing to the
ambiguity itself of the legal status of the person performing the act -
whether it will result in the maqtûlbeing also the qâtil -
and since there is doubt and uncertainty over the possibility of its
either being or not being the case, then this position falls under the
type of doubtful matters [shubuhât] of the kind [naw'] that
should be avoided by those who are religiously scrupulous [wara'].
And here, the wisdom of our wise Prophet (
may Allâh's blessings and peace be upon him!) is illuminated from the
Hadith of al-Nu'man (
may Allâh be well pleased with him!):
"fa-mani ttaqA sh-shubuhAti istabra'a li-dInihi wa 'irDihi"
[He who saves himself from doubtful matters will save his
religion and his honour.]
(Related by Ahmad, al-Bukhari, Muslim, al-Tirmidhi, Ibn Majah,
al-Tabarani, and al-Bayhaqi with variants.)
Wa-Llâhu a'lam bis-sawâb! [God knows best what is right!]
Fa'ida: The original ruling [al-asl] for using a bomb
(the medieval precedents: Greek fire [qitâl bil-nâr or
ramy al-naft] and catapults [manjanîq]) as a weapon is that
it ismakrûh [offensive] because it kills indiscriminately [ya'ummu man yuqâtilû wa-man lâ yuqâtilû], as opposed to using rifles (medieval example: a single bow and arrow).
If the indiscriminate weapon is used in a place where there are civilians,
it becomesharâm except when used as a last resort [min darûra] (and of course, by those military personnel authorised to do so).
Hâsil
From the consideration of the foregoing three legal particulars, it is
evident that the opinion expressed regarding the
'amal in the above
article is untenable by the standards of our Sacred Law.
As to those who may still be persuaded by it and suppose that the action
is something that can be excused on the pretext that there is scholarly
khilâf on the details of
Tafsil II
from Fasl III above (and that therefore, the 'amal itself
could at the end of the day be accommodated by invoking the guiding
principle that one should be flexible with regards to legal controversies
[masâ'il khilâfiyya] and agree to disagree); know then there is no
khilâf among scholars that that rationale does not stand, since it is well
known that:
lA yunkaru l-mukhtalafu fIhi wa-innamA yunkaru l-mujma'u 'alayhi
[The controversial cannot be denied; only (breach of) the unanimous
can be denied.]
Since at the very least, it is agreed upon by all that killing
non-combatants is prohibited, there is no question whatsoever that the
'amal overall is outlawed.
The qâ'ida, which is expressed very tersely above, means,
understood correctly, that an action about which there is
khilâf may be excused, while an action that contravenes the
Ijmâ' is categorically rejected.
Masâ'il Mufassala
Question I
If it is said: "I have heard that Islam says the killing of civilians is
allowed if they are non-Muslims."
We say: On a joking note (but ponder over this so your hearts may
be opened!): the authority is not with what Islam says but with what Allâh
(Exalted is He!) and His Messenger (
may His blessings and peace be upon him!) have said!
But seriously: the answer is absolutely no; for even a novice student of fiqh would be able to see that the
first dâbit above concerns already a non-Muslim opponent in the
case of a state of war having been validly declared by a Muslim authority
against a particular non-Muslim enemy, even when that civilian is a
subject or in the care [dhimma] of the hostile non-Muslim state [Dâr al-Harb]. If this is the extent of the limitation to be observed with regards to
non-Muslim civilians associated with a declared enemy force, what higher
standard will it be in cases if it is not a valid war or when the status
of war becomes ambiguous? Keep in mind that there are more than 100 Verses
in the Qur'ân commanding us at all times to be patient in the face of
humiliation and to turn away from violence [al-i'râd 'ani l-mushrikîn wa l-sabr 'alâ adhâ l-a'dâ'], while there is only one famous Verse in which war (which does not last
forever) becomes an option (in our modern context: for a particular Muslim
authority and not an individual), when a particular non-Muslim force has
drawn first blood.
Question II
If it is said: "What about the verse of the Qur'an which says
{kill the unbelievers wherever you find them}
and the Sahih Hadith which says
'I have been ordered to fight against the people until they
testify'?"
We say: It is well known among scholars that the following verse,
{fa-qtulU l-mushrikIna Haythu wajad-tumUhum}
{kill the
idolaters wherever you find them}(al-Tawba, 9:5)
is in reference to a historical episode: those among the Meccan Confederates
who breached the Treaty of Hudaybiyya [
Sulh al-Hudaybiyya] which led
to the Victory of Mecca [
Fath Makka], and that therefore, no legal
rulings, or in other words, no practical or particular implications, can be
derived from this Verse on its own. The Divine Irony and indeed Providence
from the last part of the Verse, {
wherever you find them} - which many of our
mufassirs understood in reference to place
(i.e., attack them whether inside the Sacred Precinct or not) - is that the
victory against the Meccans happened without a single battle taking place,
whether inside the Sacred Precinct or otherwise, rather, there was a general
amnesty [
wa-mannun 'alayhi bi-takhliyati sabîlihi or
naha 'an safki d-dima'] for the Jâhilî Arabs there. Had the Verse not
been subject to a historical context, then you should know that it is of the
general type [
'amm] and that it will therefore be subject to
specification [
takhsîs] by some other indication [
dalîl]. Its
effect in lay terms, were it not related to the Jahilî Arabs, is that it can
only refer to a case during a valid war when there is no ceasefire.
Among the well known exegeses of
"al-mushrikîn"
from this Verse are: "al-nâkithîna khâssatan" [specifically, those
who have breached (the Treaty)] [al-Nawawi al-Jawi,Tafsîr, 1:331];
"al-ladhîna yuharibunakum" [those who have declared war against
you] [Qâdi Ibn 'Arabi, Ahkâm al-Qur'ân, 2:889]; and
"khâssan fî mushkrikî l-'arabi dûna ghayrihim" [specifically, the
Jâhilî Arabs and not anyone else] [al-Jassâs,
Ahkâm al-Qur'ân, 3:81].
As for the meaning of
"people" [al-nâs]
in the above well-related Hadith, it is confirmed by Ijmâ' that it
refers to the same
"mushrikîn" as in the Verse of Sura al-Tawba above, and therefore what is meant there
is only the Jâhilî Arabs [muskhrikû l-'arab] during the
closing days of the Final Messenger and the early years of the Righteous
Caliphs and not even to any other non-Muslims.
In sum, we are not in a perpetual state of war with non-Muslims. On the
contrary, the original legal status [al-asl] is a state of peace,
and making a decision to change this status belongs only to a Muslim
authority who will in the Next World answer for their ijtihâd and
decision; and this decision is not divinely charged to any individuals -
not even soldiers or scholars - and to believe otherwise would go against
the well-known rule in our Law that a Muslim authority could seek help
from a non-Muslim with certain conditions, including, for example, that
the non-Muslim allies are of goodwill towards the Muslims:
[la-yast'Inu bi-mushkrikin illA bi-shurUTin
ka-an takUna niyyatuhu Hasanatan li-l-MuslimIna).
Question III
If it is said: "I have heard a scholar say that 'Israeli women are not
like women in our society because they are militarised'. By implication,
this means that they fall into the category of women who fight and that
this makes them legitimate targets but only in the case of Palestine."
We say: No properly schooled jurists from any of the Four Schools
would say this as a legal judgement if they faithfully followed the
juridical processes of the orthodox Schools relating to this bâb;
for if it is true that the scholar made such a statement and meant it in
the way you've implied, then not only does this violate the well-known
principal rule above (Fasl I: "It is not permissible to kill their
women and children if they are not in direct combat"), but the supposed
remarks also show a lack of sophistication in the legal particulars. If
this is the case, then it has to be said here that this is not among the
masâ'il khilâfiyya, about which one can afford to agree to
disagree, since it is outright wrong by the principles and the rules from
our usûl and furû'.
Let us restate the dâbit again, as our jurists have succinctly
summarised its rule of engagement: a soldier can only attack a female or
(if applicable) child soldier (or a male civilian) in self-defence and
only when she herself (and not someone else from her army)
is engaged in direct combat. (As for male soldiers, it goes without saying
that they are considered combatants as soon as they arrive on the
battlefield even if they are not in direct combat - provided of course
that the remaining conventions of war have been observed throughout, and
that all this is during a valid war when there is no ceasefire.)
Not only is this strict rule of engagement already made clear in our
secondary legal texts, but this is also obvious from the linguistic
analysis of the primary proof-texts used to derive this principal rule.
Hence, the form of the verb used in the scriptures,yuqâtilu, is of the mushâraka-type, so that the verb denotes a direct or a
personal or a reciprocal relationship between two agents: the minimum for
which is one of them making an effort or attempt to act upon the other.
The immediate legal implication here is that one of the two can only even
be considered a legitimate target when there is a reciprocal or direct
relationship.
In reality [wâqi'], this is not what happens on the ground (since
the bombing missions are offensive in nature - they are not targeting, for
example, a force that is attacking an immediate Muslim
force; but rather the attack is directed at an overtly non-military
target, so the person carrying it out can only be described as attacking
it - and the target is someone unknown until only seconds before the
mission reaches its termination).
In short, even if these women are soldiers, they can only be attacked when
they arein direct combat and not otherwise. In any case,
there are other overriding particulars to be considered and various
conditions to be observed throughout, namely, that it must be during a
valid state of war when there is no ceasefire.
Question IV
If it is said: "When a bomber blows himself up he is not directing the
attack towards civilians. On the contrary, the attack is designed to
target off-duty soldiers (which I was told did not mean reservists, since
most Israelis are technically reservists). The innocent civilians are
unfortunate collateral damage in the targeting of soldiers."
We say: There are two details here.
Tafsîl A: Off-duty soldiers are treated as civilians.
Our jurists agree that during a valid war when there is no ceasefire, and
when an attack is not aimed at a valid military target, a hostile soldier
(whether male or female, whether conscripted or not) who is not on
operational duty or not wearing a military uniform and when there is nothing
in the soldier's outward appearance to suggest that the soldier is in
combat, then the soldier is considered a non-combatant [
man lâ yuqâtilu] (and in this case must therefore be treated as a normal civilian).
A valid military target is limited to either a battlefield [mahall al-ma'raka or sahat al-qitâl] or a military base [mu'askar; medieval
examples are citadel or forts; modern examples are barracks, military
depots, etc.]; and certainly never can anything else such as
a restaurant, a hotel, a public bus, the area around a traffic light, or
any other public place be considered a valid military target, since
firstly, these are not places and bases from which an attack would
normally originate [mahall al-ra'y]; secondly, because there is
certain knowledge [yaqîn] that there is intermingling
[ikhtilât] with non-combatants; and thirdly, the non-combatants
have not been given the option to leave the place.
As for when the soldiers are on the battlefield, the normal rules of
engagement apply.
As for when the soldiers are in a barracks or the like, there is further
discussion on whether the soldiers become a legitimate target, and the
Qawl Asahh [the More Correct Position] according to our jurists is
that they do, albeit to attack them there is makrûh.
Tafsîl B: Non-combatants cannot at all be considered
collateral damage except at a valid military target, for which they may be
so deemed, depending on certain extenuating circumstances.
There is no khilâf that non-combatants or civilians cannot at all
be considered collateral damage at a non-military target in a war zone,
and that their deaths are not excusable by our Law, and that the one who
ends up killing one of them will be sinful as in the case of murder, even
though the soldier who is found guilty of it would be excused from the
ordinary capital punishment [hadd], unless the killing was found to
be premeditated and deliberate:
[aw ata bi-ma'siyyatin tujibu l-hadda].
If not, the murderer's punishment in this case would instead be subject to
the authority's discretion [
ta'zîr] and he would in any case be
liable to pay the relevant compensation [
diya].
As for a valid military target in a war zone, the Shâfi'î School have
historically considered the possibility of collateral damage, unlike the
position held by others that it is unqualifiedly outlawed. The following
are the conditions stipulated for allowing this controversial exception
(in addition to meeting the most important condition of them all: that
this takes place during a valid war when there is no ceasefire:)
(1) The target is a valid military target.
(2) The attack is as a last resort [min darura] (such as when the civilians
have been warned to leave the place and after a period of siege has
elapsed).
wujUb al-indhAri qabla l-bad'i bi-l-qatli
li-annahu lA yajUzu an yaqtula illA man yuqAtilu
(3) There are no Muslim civilians or prisoners.
(4) The decision to attack the target is based on a considered judgement of
the executive or military leader that by doing so, there is a good chance
that the battle would be won.
(Furthermore, this position is subject to khilâf among our jurists
with regard to whether the military target can be a Jewish or Christian
[Ahl l-Kitâb] one, since the sole primary text that is invoked to
allow this exception concerns an incident restricted to the same
"mushrikin"
as in the Verse of Sura al-Tawba in Question II above.)
To neglect intentionally any of these strict conditions is analogous to
not fulfilling the conditions [shurût] for a prayer [salât]
with the outcome that it becomes invalidated [bâtil] and useless
[fasâd].
This is why the means of an act ['amal] must be correct and
validated according to the rule of Law in order for its outcome to be
sound and accepted, as expressed succinctly in the following wisdom of
Imam Ibn 'Ata'illah (may Allâh sanctify his soul!):
man ashraqat bidayatuhu ashraqat nihayatuhu
[He who makes good his beginning will make good his ending.]
In our Law, the ends can never justify the means except when the means are
in themselves permissible, or mubâh (and not harâm), as is
made clear in the following famous legal principle:
wasIlatu T-TA'ati TA'atun wa-wasIlatu l-ma'Siyati ma'Siyatun
[the means to a reward is itself a reward and the means to a sin is
itself a sin.]
Hence, even a simple act such as opening a window, which on its own is
only mubâhor halâl, religiously entailing no reward nor
being a sin, when a son does it with the intention of his mother's comfort
on a hot summer's day before she asks for it to be opened, the originally
non-consequent act itself becomes mandûb [recommended] and the son
is rewarded in his 'amal-account for the Next World and acquires
the pleasure of Allâh.
wAllâhu a'lam wa-ahkam bi-s-sawab!
[God knows and judges best what is right!]
Question V
If it is said: "In a classic manual of Islamic Sacred Law I read that "it
is offensive to conduct a military expedition [ghazw] against
hostile non-Muslims without the caliph's permission (though if there is no
caliph, no permission is required)." Doesn't this entail that though it is
makrûh for anyone else to call for or initiate such a jihâd,
it is permissible?"
We say:
lA ghazwata illA fi l-jihAdi[there can be no battle except during a war!]
Secondary legal texts, just as with primary proof-texts (a single Verse of
the Qur'an from among the relatively few Âyat al-Ahkâm or a Hadith
from among the limited number of Ahâdith al-Ahkâm), must be read and
understood in context. The conclusion drawn that it is offensive or
permissible for anyone other than those in authority to declare or
initiate a war is evidently wrong, since it violates the principal rule of
engagement discussed in
Fasl II
above.
The context is that of endangering one's life [taghrîr bi-nafs]
when there is already a valid war with no ceasefire, as seen in the above
example from the Ihyâ' passage, but certainly not in executive
matters of the kind of proclaiming a war and the like. This is also
obvious from the terminology used: a ghazw [a military act,
assault, foray or raid; the minimum limit in a modern example: an attack
by a squad or a platoon (katîba)] can take place only when there is
a state of jihâd [war], not otherwise.
Fâ'ida Imâm Ibn Hajar (
may Allâh be pleased with him!) lists the organizational structure of an
army as follows: a ba'th [unit] and several such together, a
katîba [platoon], which is a part of a sariyya [company;
made up of 50-100 soldiers], which is in turn a part of a
mansar [regiment; up to 800 soldiers], which is a part of a
jaysh [division; up to 4000 soldiers], which is a part of a
jahfal[army corps; exceeding 4000 soldiers], which makes up the
jaysh 'azîm [army]. [Ibn Hajar, Tuhfa, 12:4]
In our School, it is offensive but not completely prohibited for a soldier
to defy, or in other words to take the initiative against the wishes of,
his direct authority, whether his unit is strong or otherwise. In the
modern context, this may include cases when soldier(s) disagree with a
particular decision or strategy adopted by their superior officers,
whether during a battle or otherwise.
The accompanying commentary to the text you quoted will help clarify this
for you:
[Original Text:] It is offensive to conduct an assault [whether the unit
is strong (man'a) or otherwise; and some have defined a strong force as
10 men] without the permission of the authority ([Commentary:] or his
subordinate, because the assault depends on the needs [of the battle and
the like] and the authority is more aware about them. It is not
prohibited [to go without his permission] (if) there is no grave
endangering of one's life even when that is permissible in war.) [Ibn
Barakat, Fayd, 2:309]
Question VI
If it is said: "What is the meaning of the rule in fiqh that I
always hear, that jihâd is afard kifâya [communal
obligation] and when the Dâr al-Islâm is invaded or occupied it is
a fard 'ayn [personal obligation]? How do we apply this in the
context of a modern Muslim state such as Egypt?"
We say: It is fard kifâya for the eligible Muslim subjects
of the state in the sense that recruitment to the military is only
voluntary when the state declares war with a non-Muslim state (as for
non-Muslim subjects, they evidently are not religiously obligated but can
still serve). It becomes a fard 'ayn for any able-bodied Muslim
when there is a conscription or a nationwide draft to the military if the
state is invaded by a hostile non-Muslim force, but only until the hostile
force is repelled or the Muslim authority calls for a ceasefire. As for
those not in the military, they have the option to defend themselves if
attacked even if they have to resort to throwing stones and using sticks
[bi ayyi shay'in aTAqUhu wa-law bi-HijAratin aw 'aSA].
Furu': When it is not possible to prepare for war [and rally
the army for war (ijtimâ' li-harb), and a surprise attack by a
hostile force completely defeats the army of the state and the entire
state becomes occupied] and someone [at home, for example] is faced with
the choice of whether to surrender or to fight [such as when the hostile
force comes knocking at the door], then he may fight. Or he may surrender,
provided that he knows [with certainty] that if he resisted [arrest] he
would be killed and that [his] wife would be safe from being raped
[fâhisha] if she were taken. If not [that is to say, even if he
surrenders he knows he will be killed and his wife raped when taken], then
[as a last resort] fighting [jihâd] becomes personally obligatory
for him. [al-Bakri, I'ânat, 4:197].
Reflect upon this legal ruling of our Religion and the emphasis placed
upon preserving human life and upon the wisdom of resorting to violence
only when it isabsolutely necessary and in its proper place;
and witness the conjunction between the maqâsid and the
wasâ'il and the meaning of the conditions when fighting actually
becomes a fard 'ayn for an individual!
Question VII
If it is said today: "In the (Shafi`i) Madhhab, what are the different
classifications of lands in the world? For example, Dar al-Islam, Dar
al-Kufr and so forth, and what have the classical ulema said their
attributes are?"
We say: As it is also from empirical fact [tajrîba], Muslim
scholars have classified the territories in this world into:
Dâr al-Islâm [its synonyms: Bilâd al-Islâm or
Dawla al-Islâm; a Muslim state or territory or land or country,
etc.] and Dâr al-Kufr [a non-Muslim state, territory etc.]
The definition of a Muslim state is: "any place at which a resident Muslim
is capable of defending himself against hostile forces [harbiyyûn]
for a period of time is a Muslim state, where his judgements can be
applied at that time and those times following it." [Ba'alawi, Bughya,
254]. A non-Muslim who resides in a Muslim state is, in our terminology:
kâfir dhimmi or al-kâfir bi-dhimmati l-Muslim [a non-Muslim
in the care of a Muslim state].
By definition, an area is a Muslim state as long as Muslims continue to
live there and the political and executive authority is Muslim. (Think
about this, for the Muslim lands are many, varied, wide and extensive; and
how poor and of limited insight are those who have tried to limit the
definition of what a Muslim state must be, and whether realizing it or not
thus try to shrink the Muslim world!)
As for a non-Muslim state, it is the absence of a Muslim state.
As for the Dâr al-Harb [sometimes called, Ard al-'Adw], it
is a non-Muslim state which is in a state of war with a Muslim state.
Therefore, a hostile non-Muslim soldier from there is known in our books
as: kâfir harbî.
Furu': Even if such a person enters or resides in a Muslim
country that is in a state of war with his home country, provided of
course he does so with the permission of the Muslim authority (such as
entering with a valid visa and the like), the sanctity of akâfir harbî's
life is protected by Law, just like the rest of the Muslim and non-Muslim
subjects of the state. [al-Kurdi, Fatâwâ, 211-2]. In this case, his
legal status becomes a kâfir harbî bi-dhimmati l-imâm [a hostile
non-Muslim under the protection of the Muslim authority], and for all
intents and purposes, he becomes exactly like the non-Muslim subjects of
the state. In this way, the apparent difference between a dhimmî and a
harbî non-Muslim becomes only an academic exercise and a distinction in
name only.
The implications of this rule for the pious, God-fearing and Law-abiding
Muslims are not only that to attack non-Muslims becomes something illegal
and an act of disobedience [ma'siya], but also that the steps taken
by the Muslim authority and enforcers, such as in Malaysia or Indonesia
today, to protect their places, including churches or temples, from the
threat of killings and bombings, are included under thebâb of
amr bi-ma'ruf wa nahi 'ani l-munkar [the duty to intervene when
another is acting wrongly; in the modern context: enforcing the Law], even
if the Muslim enforcers [muhtasib] die in the course of protecting
non-Muslims.
Question VIII
If it is said: "What land classification are we in the European Union, and
what is thehukm of those who are here? Should they theoretically
leave?"
We say: It is clear that the countries in the Union are non-Muslim states,
except for Turkey or Bosnia, for example, if they are a part of the Union.
The status of the Muslims who reside and are born in non-Muslim states is
the reverse of the above non-Muslim status in a Muslim state:
al-Muslim bi-dhimmati l-kâfir [a Muslim in the care of a non-Muslim
state] and from our own Muslim and religious perspective, whether we like
it or not, there are similarities to the status of a guest which should
not be forgotten.
There is precedent for this status in our Law. The answer to your question
is that they should as a practical matter remain in these countries, and
if applicable, learn to cure the schizophrenic cultural condition in which
they may find themselves - whether of torn identity in their souls or of
dissociation from the general society. If they cannot do so, but find
instead that their surroundings are incompatible with the life they feel
they must lead, then it is recommended for them to leave and reside in a
Muslim state. This status is made clear in the fatwa of the
Muhaqqiq, Imam al-Kurdi (
may Allâh be pleased with him!):
"He (
may the mercy of Allâh - Exalted is He! - be upon him!) was asked:
"In
a territory ruled by non-Muslims, they have left the Muslims [in peace]
other than that they pay tax [mâl] every year just like the
jizya-tax in reverse, for when the Muslims pay them, their
protection is ensured and the non-Muslims do not oppose them [i.e., do not
interfere with them]. Thereupon, Islam becomes practiced openly and our
Law is established [meaning that they have the freedom to practice their
religious duty in the open and in effect become practicing Muslims in that
non-Muslim society]. If the Muslims do not pay them, the non-Muslims could
massacre them by killing or pillage. Is it permissible to pay them the tax
[and thereby become residents there]? If you say it is permissible, what
is the ruling about the non-Muslims mentioned above when they are at war
[with a Muslim state]: would it or would it not be permissible to oppose
them and if possible, take their money? Please give us your opinion!
The answer:
Insofar as it is possible for Muslims to practice their religion openly with
what they can have power over, and they are not afraid of any threat
[
fitna] to their religion if they pay tax to the non-Muslims, it is
permissible for them to reside there. It is also permissible to pay them the
tax as a requirement of it [residence]; rather, it is obligatory
[
wâjib] to pay them the tax for fear of their causing harm to the
Muslims. The ruling about the non-Muslims at war as mentioned above, because
they protect the Muslims [in their territory], is that it would not be
permissible for the Muslims to murder them or to steal from them.
[al-Kurdi,
Fatawa, 208]
The dâbit for this mas'ala is:
wa-in qadara 'ala iZhAri d-dIni wa-lam yakhafi l-fitnata fi d-dIni
wa-nafsihi wa-mAlihi lam tajib 'alayhi al-hijratu
[if someone is able to practice his religion openly and is not
afraid of trouble to his religion, life and property, then emigration is
not obligatory for him.]
Furu': Our Shâfi'î jurists have discussed details concerning
the case of Muslims residing in a non-Muslim state, and they have divided
the legal rulings about their emigration from it to a Muslim state into
four sorts (assuming that an individual is capable and has the means to
emigrate):
1. Harâm: It is prohibited for them to leave when they are able to
defend their territory from a hostile non-Muslim force or withdraw from it
(as in the case of a border state, buffer area or disputed territory) and
do not need to ask for help from a Muslim state. The reason is that their
place of residence is already, technically [hukman], a 'Muslim
state' even though not in name [sûratan], since they are able to
practice their religion openly even though the political or executive
authority is not Muslim; and if they emigrated it would cease to be so.
This falls under the fiqhîclassification of
Dâr Kufr Sûratan Lâ Hukman, which is equivalent to
Dâr Islâm Hukman Lâ Sûratan.
2. Makrûh: it is offensive to leave their place of residence when
it is possible for them to practice their religion openly, and they wish
to do so openly.
3. Mandûb: leaving becomes recommended only when it is possible for
them to practice their religion openly, but they do not wish to do so.
4. Wâjib: it becomes obligatory to leave when it is the only
remaining option, that is, when practicing their religion openly is not
possible. A legal precedent is the case after the Reconquista in Spain
(which is no longer the case today) when the Five Pillars of the Faith
were actively proscribed, so that, for example, the Muslim houses were
required to keep their doors open after sunset during the fasting month of
Ramadân in order that the authority could see that there was no breaking
of the fast.
Question IX
If it is said: "Would you say that in the modern age with all the
considerations surrounding sovereignty and inter-connectedness, these
classical labels do not apply any longer, or do we have sufficient
resources in the School to continue using these same labels?"
We say: As Imam al-Ghazâlî would say:
idhâ `urifa l-ma`nâ falâ mushâhhata fî l-asmâmî[Once the real meaning is understood, there is no need to quibble
over names.]
Labels can never be relied upon; it is the meaning behind them that must be
properly understood. Once they are unpacked, they immediately become
relevant for all times; just as with the following loaded terms:
jihâd, mujâhid and
shahîd. The result for Muslims who fail to
notice the relevance and fail to connect the dots of our own inherited
medieval terms with the modern world may be that they will live in a
schizophrenic cultural reality and will be unable to associate themselves
with the surrounding society and will not be at peace [
sukûn] with
the rest of creation. Just as the
sabab al-wujûd of this article is a
Muslim's misunderstanding of his own medieval terminology from a long and
rich legacy, the
fitna in the world today has been the result of
those who misunderstand our Law.
Pay heed to the words of Mawlânâ Rûmî (may Allâh sanctify his secrets!):
Go beyond names and look at the qualities, so that they may show
you the way to the essence.
The disagreement of people takes place because of names. Peace
occurs when they go to the real meaning.
Every war and every conflict between human beings has happened
because of some disagreement about names.
It's such an unnecessary foolishness, because just beyond the
arguing there's a long table of companionship, set and waiting for
us to sit down.
End of the masâ'il section.
Tatimma
It is truly sad that despite our sophisticated and elaborate set of rules
of engagement and in spite of the strict codes of warfare and the
chivalrous disciplines which our soldiers are expected to observe, all
having been thoroughly worked out and codified by the orthodox jurists of
the Umma from among the generations of theSalaf, there are
today in our midst those who are not ashamed to depart from these sacred
conventions in favour of opinions espoused by persons who are not even
trained in the Sacred Law at all let alone enough to be a qâdî or a
faqîh - the rightful heir and source from which they should receive
practical guidance in the first place. Instead they rely on engineers or
scientists and on those who are not among its ahl, yet speak in the
name of our Law. With these "reformist" preachers and da'îs comes a
departure from the traditional ideas about the rules of
siyar/jihâd/qitâl, i.e., warfare. Do they not realize that by doing
so and by following them they will be ignoring the limitations and
restrictions cherished and protected by our pious forefathers and that
they will be turning their backs on the Jamâ'a and Ijmâ' and
that they will be engaging in an act for which there is no accepted legal
precedent within orthodoxy in our entire history? Have they forgotten that
part of the original maqsad of warfare/jihâd was to limit
warfare itself and that warfare for Muslims is not total war, so that
women, children and innocent bystanders are not to be killed and property
not to be needlessly destroyed?
To put it plainly, there is simply no legal precedent in the history of
Sunni Islam for the tactic of attacking civilians and overtly non-military
targets. Yet the awful reality today is that a minority of Sunni Muslims,
whether in Iraq or Beslan or elsewhere, have perpetrated such acts in the
name of jihâd and on behalf of the Umma. Perhaps the first
such mission to break this long and admirable precedent was the Hamas
bombing on a public bus in Jerusalem in 1994 - not that long ago. (Reflect
on this!)
Immediately after the incident, the almost unanimous response of the
orthodox Shâfi'î jurists from the Far East and the Hadramawt was not only
to make clear that the minimum legal position from our Sacred Law is
untenable for persons who carry out such acts, but also to warn the
Umma that by going down that path we would be compromising the
optimum way of Ihsân and that we would thereby be running a real
risk of losing the moral and religious high ground. Those who still defend
this tactic, invoking blindly a nebulous usûlî principle that it is
justifiable out of darûrawhile ignoring the
far'î strictures, must look long and hard at what they are doing
and ask the question: was it absolutely necessary, and if so, why was this not done before 1994, and especially during the
earlier wars, most of all during the disasters of 1948 and 1967?
How could such a tactic be condoned by one of our Rightly Guided Caliphs
and a heroic fighter such as 'Alî (may Allâh ennoble his face!), who when
in the Battle of the Trench his notorious non-Muslim opponent, who was
seconds away from being killed by him, spat on his noble face, immediately
left him alone. When asked later his reasons for withdrawing when Allâh
clearly gave him power over him, he answered: "I was fighting for the sake
of God, and when he spat in my face I feared that if I killed him it would
have been out of revenge and spite!" Far from being an act of cowardice,
this characterizes Muslim chivalry: fighting, yet not out of anger.
In actual fact, the only precedent for this tactic from Muslim history is
the cowardly terrorism carried out by the "Assassins" of the Nizari
Isma'îlîs. Their most famous victim from a suicide mission was the wise
minister and the Defender of the Faith, who could have been alive to deal
with the fitna of the Crusades: Nizâm al-Mulk, the Jamâl
al-Shuhadâ' (may Allâh encompass him with His mercy!), assasinated on
Thursday, the 10th of the holy month of Ramadan 485/14 October 1092.
Ironically, in the case of Palestine, the precedent was set not by Muslims
but by early Zionist terrorist gangs such as the Irgun, who, for example,
infamously bombed the King David Hotel in Jerusalem on 22nd July 1946. So
ask yourself as an upright and God-fearing believer, whose every organ
will be interrogated: do you really want to follow the footsteps and the
models of those Zionists and the heterodox Isma'îlîs, instead of the path
taken by our Beloved (may Allâh's blessings and peace be upon him!), who
for almost half of the (twenty-three) years of his mission endured Meccan
persecution, humiliation and insults? Is anger your only strength? If so,
remember the Prophetic advice that it is from the Devil. And is
darûra your only excuse for following them instead into their
condemned lizard-holes? Do you think that any of our famous
mujâhids from history, such as 'Ali, Salâh al-Dîn, and Muhammad
al-Fâtih (may Allâh be well pleased with them all!) will ever condone the
article you quoted and these acts today in Baghdad, Jerusalem, Cairo,
Bali, Casablanca, Beslan, Madrid, London and New York, some of them
committed on days when it is traditionally forbidden by our Law to fight:
Dhû l-Qa'da and al-Hijja, Muharram and Rajab? Every person of
fitra will see that this is nothing other than a sunna of
perversion.
This is what happens to the Banû Adam when the wahm is abandoned by
'aql, when one of the maqâsid justifies any wasîla,
when the realities of furû' are indiscriminately overruled by
generalities of usûl, and most tragically, as illustrated from the
eternal blunder of Iblis, when Divine tawakkul is replaced by basic
nafs.
Yes, we are one Umma such that when one part of the macro-body is
attacked somewhere, another part inevitably feels the pain. Yet at the
same time, our own history has shown that we have also been a wise and
sensible, instead of a reactive and impulsive, Umma. That is the
secret of our success, and that is where our strengths will always lie as
has been promised by Divine Writ: in sabr and intawakkul. It
is already common knowledge that when Jerusalem fell to the Crusading
forces on the 15th of July 1099 and was occupied by them, and despite its
civilians having been raped, killed, tortured and plundered and the Umma
at the time humiliated and insulted - acts far worse than what can be
imagined in today's occupation - that it took more than 100 years of
patience and legitimate struggle under the Eye of the Almighty before He
allowed Salâh al-Din to liberate Jerusalem. We should have been taught
from childhood by our fathers and mothers about the need to prioritize and
about how to reconcile the spheres of our global concerns with those of
our local responsibilities - as we will definitely not escape the
questioning in the grave about the latter - so that by this insight we may
hope that our response will not be disproportionate nor inappropriate.
This is the true meaning [haqîqa] of the true advice
[nasîha] of our Beloved Prophet (
may Allâh's blessings and peace be upon him!): to leave what does not
concern one [tark ma lâ ya'nîh], where one's time and energy could
be better spent in improving the lot of the Muslims today or benefiting
others in this world.
Yes, we will naturally feel the pain when any of our brothers and sisters
die unjustly anywhere when their deaths have been caused directly by
non-Muslims, but it mustbe the more painful for us when they die in Iraq, for example, when their
deaths are caused directly by the self-destroying/martyrdom/suicide
missions carried out by one of our own. On tafakkur, the second
pain should make us realize that missions of this sort, when the means and
the legal particulars are all wrong - by scripture and reason - are not
only a scourge for our non-Muslim neighbours but a plague and great
fitna for this mercied Umma, and desire insâf so that
out of maslaha and the general good, it must be stopped.
To this end, we could sum up a point of law tersely in the following
maxim:
lA yaj'alu Z-ZulmAni th-thAniya Haqqan[two wrongs do not make the second one right]
If the first pain becomes one of the mitigating factors and ends up being
used as a justification by our misguided young to retaliate in a manner
which our Sacred Law definitely and without doubt outlaws (which makes
your original article the more appalling, as its author will have passed
the special age of 40), then the latter pain should by its graver
significance generate a greater and more meaningful response. With this
intention, we may hope that we shall regain our former high ground and
reputation and rediscover our honour and chivalrous qualities and be no
less brave.
I end with the first ever Verse revealed in the Qur'an which bestowed the
military option only upon those in a position of authority:
wa-qAtilU fI sabIli LlAhi l-ladhIna yuqAtilUnakum
wa-lA ta'tadU
inna LlAha lA yuHibbu l-mu'tadIna
{And fight for the sake of God those who fight you: but do not commit
excesses, for God does not love those who exceed (i.e., the Law)}
(al-Baqara, 2:190).
Even then, peace is preferred over war:
wa-in janaHU li-s-salmi fa-jnaH la-hA wa-tawakkal 'ala LlAhi
{Now if they incline toward peace,
then incline to it, and place
your trust in God}
(al-Anfal, 8:61)
Even if you think that the authority in question has decided wrongly and
you disagree with their decision not to war with the non-Muslim state upon
which you wish war to be declared, then take heed of the following Divine
command:
yA ayyhuhA l-ladhIna AmanU aTI'u l-LAha wa-aTI'u r-rasUla wa-uli l-amri
minkum
{O believers, obey Allâh, and obey the Messenger, and those with
authority among you!}
(al-Nisa', 4:58)
If you still insist that your authority should declare war with the
non-Muslim state upon which you wish war to be declared, then the most you
could do in this capacity is to lobby your authority for it. However, if
your anger is so unrestrained that its fire brings out the worst in you to
the point that your disagreement with your Muslim authority leads you to
declare war on those you want your authority to declare war on, and you
end up resorting to violence, then know with certainty that you have
violated our own religious Laws. For then you will have taken the
Sharî'a into your own hands. If indeed you reach the point of
committing a violent act, then know that by our own Law you would have
been automatically classified as a rebel [ahl al-baghy] whom the
authority has the right to punish: even if the authority is perceived to
be or is indeed corrupt [fâsiq]. (The definition of rebels is:
"Muslims who have disagreed [not by heart or by tongue but by hand] with
the authority even if it is unjust [jâ'ir] and they are correct
['adilûn]" [al-Nawawî, Majmû', 20:337].)
That is why, my brethren, when the military option is not a legal one for
the individuals concerned, you must not lose hope in Allâh; and let us be
reminded of the words of our Beloved (
may Allâh's blessings and peace be upon him!):
afDalu l-jihAdi kalimatu Haqqin 'inda sulTAnin jA'irin
[The
best Jihad is a true (i.e., brave) word in the face of a tyrannical
ruler.]
(From a Hadîth of Abû Sa'îd al-Khudrî (
may Allâh be well pleased with him!) among others, which is related by Ibn
al-Ja'd, Ahmad, Ibn Humayd, Ibn Mâjâh, Abû Dawûd, al-Tirmidhî, al-Nasâ'î,
Abû Ya'lâ, Abû Bakr al-Rûyânî, al-Tabarânî, al-Hâkim, and al-Bayhaqî, with
variants.)
For it is possible still, and especially today, to fight injustice or
zulm and taghût in thisdunyâ through your tongue and
your words and through the pen and the courts, which still amounts in the
Prophetic idiom to jihâd, even if not through war. As in the
reminder [tadhkira] of the great scholar, Imâm al-Zarkashî: war is
only a means to an end and as long as some other way is open to us, that
other way should be the course trod upon by Muslims.
Ma shâ-Allâh, how true indeed are the Beloved's words, so that the
latter mujâhid or activist will be no less brave or lacking in any
courage with his or her campaign for a just cause in an oppressive country
or one needing reforms than the former mujâhidor patriot who fought
bravely for his country in a just war.
fa-t-taqillaha wa-raji' mufatashata nafsika wa-islaha fasadiha wa-huwa
hasbuna wa-ni'ma l-wakil wa-la hawla wa-la quwwata illa billahi
l-'aliyyi l-'azim! wa-salawatuhu 'ala sayyidina Muhammadin wa-alihi
wasallim waradiyAllâhu tabaraka wa-ta'ala 'an sadatina ashabi
rasulillahi ajma'in wa-'anna ma'ahum wa-fihim wa-yaj'aluna min hizbihim
bi-rahmatikaya arhama r-rahimin! Âmin!
[Fear God, and go back to controlling your self and to curing your
wickedness! For indeed, He is enough for us: what an excellent guardian!
There is no help nor power except through God, the High and Mighty! May
His blessings and peace be upon our master, Muhammad, and his Family! And
may He be pleased with our leaders, the Companions of the Messenger of
God, one and all! And may we be together with them and in their company,
and may He make us among their Troop! By Your Mercy, O Most Merciful of
those who show mercy, Amen!]
May this be of benefit.
With heartfelt wishes for salâm & tayyiba
from
Oxford to Brunei,
Muhammad Afifi al-Akiti
16th Jumâdâ' II
1426
23rd July 2005
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