What Is Jihad In Islam? The Most Authoritative Answer From The Islamic Theology Of Consensus Of All Four Sunni Schools Of Islamic Jurisprudence Or Fiqh – Part 4
Translated by New Age
Islam Edit Desk
19 April
2021
Translated by New Age Islam group of scholars
from the original Arabic Chapter on Jihad in "Al-Mausu'ah
Al-Fiqhiyah" i.e., Encyclopaedia of Islamic Jurisprudence (45 volumes).
This is also known as "Kuwaiti Encyclopaedia for Islamic
jurisprudence," as it is the fruit of an effort of the Ministry of Awqaf
(religious matters) of Kuwait to build up an encyclopaedia of jurisprudence
reconciling all four Sunni mazahib (schools of jurisprudence).
Main aspects covered in Part 4:
1. The
forbidden and the condemned acts during Jihad
2.
Fighting in the sacred Months is forbidden
3.
Prohibition of Travelling with Mushaf and the Shari’i books to Jihad
4.
killing women, children, old, insane, hermaphrodite and relatives Is
forbidden
5.
Forbiddance of Treachery [ghadar], embezzlement [ghulul] and mutilation
[Muthla]
6.
Prohibition of Burning the enemy with fire or drowning him in the water
7.
Damaging the enemy’s property during Jihad
The Forbidden [Haram] And The Condemned Acts [Makroohat]
During Jihad
(A) Fighting
In The Sacred Months
27. The
sacred Islamic months are Rajab,dhul Qa’dah, dhul Hijjah and Muharram.
Fighting in
these months in the early period of Islam was forbidden [haram] because Allah
Almighty says, “The number of months
ordained by Allah is twelve in the Book of Allah since the day He created the
heavens and the earth. Of these, four are sacred; that is the established
principle of Deen” (9:36). Allah
Almighty says, “They ask you about the
war in the Sacred Month. Tell them: “fighting in this month is a heinous
offence” (2:217).
As regards
the situation after that, the majority of jurists hold the view that fighting
in the sacred months is Mansukh
[abrogated], as referenced by Ahmed and the verse that abrogates it is “Kill
the polytheists wherever you find them” (9:5). It is also that the prophet
(peace be upon him) participated in the Ghazwa [battle] of Taa’if in the month
of dhulQa’dah.
According
to another view of the jurists, fighting in these sacred months is still
forbidden. The evidence upon it is the hadith of Jaabir (May Allah be pleased
with him) “The Prophet (peace be upon him) would not engage in war in the
sacred month unless he was first attacked, then he would march forth. He would
otherwise remain idle until the end of the sacred month”. (Related by Ibn Jarir
Tabari in his exegesis (4/300 darulMaa’rif, with the authentic sanad i.e. chain
of narration).
As for the
defensive fighting in the sacred month, it is permitted, as proved by the consensus
[ijma’] of the jurists [fuqaha] without any disagreement. (Al-Mabsoot 10/2.3,
NihayatulMuhtaj 8/45, RaudatutTalibin 10/204 and KashshafulQina’ 3/37)
(b)
Forbiddance of taking Mushaf [the Holy Qur’an) and the Shari’i books to
Jihad
28. The
majority of jurists hold the view that it is not permissible to travel with the
Mushaf [the book of Allah Almighty] to the Darul Harab [the House of War] and
the fighting. It is narrated by Ibn Umar (May Allah be pleased with him) that
the Messenger of Allah Almighty (peace be upon him) said, “do not travel with
the holy Qur’an [to the lands of the enemy], out of fear that they may harm it
with their hands” (Related by Sahih Muslim -3/1491 Alhalabi- from the hadith of
Abdullah ibn Umar). This is because taking it out [in the war] leads to its
being in the hand of the enemy who belittles it. Belittling the Quran is haram
and whatever leads to its [belittling/underestimating] is also forbidden
[haram]. However, according to the Hanafis, it is not condemned [makrooh] to
travel with the Mushaf [to the darulharab] when there is no fear of defeat of
the army that at least should consist of four hundred. Ibnul Hammam said the great army must
comprise of twelve thousand because the prophet (peace be upon him said: “The
best number of companions is four, the best number in expeditions four hundred,
and the best number in armies four thousand; and twelve thousand will not be
overcome through the smallness of numbers” (Hadith related by Abu Dawud 3/82
and Alhakim 1/443).
The Malikis
state that it is forbidden [haram] to travel with the mushaf to their land [the
land of the kuffar], even though it is with a great army. Some jurists have
measured the mushaf with the books of fiqh [jurisprudence] and hadith in this
issue. (Ibn Abidin 3/223,224, AlMabsoot 10/29, HashiyatutDusuqi 2/178,
Al-Mughni 1/149, 8368)
If a Muslim
enters their country under an assurance of immunity [Amaan] and he is sure of
their fulfilling the promise of safety, it is then permissible to take the
mushaf with him, because he is not expected to face any damage.
But if
there is no assurance of immunity or safety [Amaan], it will be forbidden
[haram] to send the mushaf to them, even though they contrive in it, out of
fear that they insult it. This ruling does not apply to the book in which the
verse of the Quran is mentioned and so on. (Ibn Aabidin 3/224, Al-Dusuqi 2/178)
(c) It is not permissible to kill the following
during Jihad
29. The
jurists agree that it is not permissible to kill women, children, the insane
[majnoo], hermaphrodite [mushkalkhuntha] because Ibn `Umar (may Allah be
pleased with him) narrated: “During some of the Ghazawat of Allah's Messenger
(peace be upon him) a woman was found killed, so Allah's Messenger (peace be
upon him) forbade the killing of women and children” (related by Bukhari
(Al-Fatah 6/148) Muslim 3/1363 Alhalabi)
Similarly,
according to the majority of jurists including Mujahid, it is not permissible
to kill the old man. It is narrated that the Prophet (peace be upon him) said:
“Do not kill a decrepit old man, or a young infant, or a child, or a woman”
(hadith related by Abu Dawud 3/86. Its Isnad
Ishasan Le-Ghair-E-Hi). When asked about the command of Allah “do not
commit aggression”, Ibn Abbas said, “Do not kill women, children and the old
people”. The same has also been narrated by Abu Bakr and Umar (may Allah be
please with them). The reason is that the women are not the people of fighting;
therefore, they will not be killed. The prophet (peace be upon him) said: “This
is not one with whom fighting should have taken place” (related by Abu Dawud
3/86. Its isnad is Hasan le ghairihi)
The
Shaafiis, in their preferred view, and IbnulMundhir said, “it is permissible to
kill the old men, because of the general application of the command of Allah
Almighty, “kill the polytheists [Mushrikin]” (9:5) and that the Prophet (peace
be upon him) said, “Kill the elder men among the idolaters and spare their
children [Sharkh i.e. those children who did not begin to grow pubic hair)”
(related by Jami’ Tirmidhi 4/145 from the speech of Samurah bin Jundab. There
is a discontinuity in the chain between Samurah and the one who he has narrated
from)
It is
neither permissible to kill a monk in his hermitage, nor the people of churches
who do not mix with the people but if they mix with them, they will be killed
like the priests, nor the tourist in the mountain who do not fight the people.
The one who
goes mad and recovers consciousness shall be killed [during fighting] in the
state of his consciousness, even though he does not fight. (Ibn Abidin 3/225
and Al-badai 7/101)
The
Hanbalis state that the ill shall be killed if he is one among those who fight
after recovery because he is like the healing of the wounded. However, he will
not be killed if he is despaired of his recovery, as he reaches a condition
where he is incapable of fighting and there remains no fear of his returning to
the state of fighting.
Similarly,
the farmer shall not be killed, as mentioned by Al-Awzai that Ibn Umar (may
Allah be pleased with him) said, “Fear Allah with regards to the farmers who do
not wage war”.
According
to the Shaafii, he shall be killed due to his entering into the general
application of the polytheists.
(Al-Mughni 8/478, 479)
Some
jurists directed that it is not permitted to kill the emissary of the Kuffar.
(RaudatutTalibin 10/244, NihayatulMuhtaj 8/64)
It is
permitted to kill those of the above mentioned who fight, even though that is a
woman, because in the era of the prophet (peace be upon him) on the day of
Qurayza, a woman was killed because she had earlier killed Khallad bin Suwaid
by throwing a grinding stone on his head (related by Ishaq in Al-Maghazi as it
is also mentioned in Assirah Annabawiyyah by Ibn Kathir 3/242).
Ibn Qudamah
said: we do not know any difference in this regard, as mentioned by Awzai,
Al-Thauri and Al-Laith that Ibn Abbas said, “the prophet (peace be upon him)
came upon a woman who had been killed on the day of the battle of Khandaq, and
he said, “who killed this one?” A man said, “I, O Messenger of Allah”. The
prophet said, “Why?” The man said, “she attempted to wrest my sword from”’ Ibn
Abbas said, ‘At this, the prophet fell silent’ (related by Abu Dawud in
Al-Maraseel as mentioned in Al-Takhlis Al-Habir 4/102)
This is
because the Prophet (peace be upon him) stopped at a slain woman and said,
“This is not one with whom fighting should have taken place” (the source
mentioned above). This indicates that the Prophet (peace be upon him) forbade
killing a woman if she does not fight.
Similarly,
if any one of the above mentioned is a king or gives an opinion to support in
the war, he shall be killed in the same way as Durayd ibn Al-Simma was killed
on the day of the battle of Hunain, while he was an old man because they
[kuffar] brought him to take help from his opinion regarding the war. “That
killing was mentioned to the prophet (peace be upon him) and was not
disapproved of” (the killing of Durayd ibn Al-Simma is related by Bukhari
(Al-Fatah 7/41). This is because the (military) opinion is one of the biggest
supports in the war.
As regards
the dumb, the deaf and those whose left hand or one leg is cut off, they shall
be killed, because they may fight to ride (Ibn Abidin 3/224, Fathul Qadeer
5/201, Al-Mudawwinah 3/6, Al-Dusuqi 2/176)
If the one,
whose killing is not permissible such as we mentioned above, is killed, the
killer needs to repent and seek forgiveness as is done in all other sins. But
there is nothing like blood money [diyat] or Atonement [kafara] because the
blood of kafir is only valued under the assurance of immunity [Amaan] (the
previous source). This subject has been discussed in detail in the chapter of
‘Jizya’.
(D) Killing The Relatives
30. There
are differences in the opinions of the jurists about killing the relatives
during fighting against Kuffar.
The Hanafis
opine that it is not permissible for the son to begin with the killing of his
polytheist [Mushrik] father during the fighting, because Allah Almighty says,
“ "But if they [parents]
strive to make the join in worship with Me things of which thou hast no
knowledge obey them not; Yet bear them company in this life with justice (and
consideration) and follow the way of those who turn to Me (in love): in the
end, the return of you all is to Me and I will tell you the truth (and meaning)
of all that ye did.” (31:15). It is incumbent upon him to keep his father alive
by paying his expenditure, so the application of killing him will violate the
ruling of keeping him alive. Hence, if the son finds his father during the
fighting, he needs to abstain till his father is killed by someone other than
him. When the purpose is achieved by others, he needs not to commit a great sin
by killing his father. However, if the father intends to kill his son and the
son is unable to defend himself except by killing is father, then in that case
there is nothing wrong with it because the purpose is to fight in defence that
is fully permissible. The reason is that if the Muslim father holds the sword
to kill his son in a condition that he cannot save himself except by killing
him, he shall kill him. Such an act is mustahabb (commendable). (Al-Badai’
7/101, Fathul Qadeer 5/203, Ibn Abidin 3/225)
The
Shaafiis direct that it is makrooh tanzihi (improper) for any warrior to kill
his relative because there is a kind of relationship and killing any mahram
relative (such as father and brother etc.) is severely makrooh(condemned)
because the prophet (peace be upon him) prevented Abu Bakr (may Allah be
pleased with him) from killing his son Abdur Rahman on the day of the battle of
Uhad. But if the mahram relative abuses Allah Almighty or mentions His name or
mentions the Messenger of Allah (peace be upon him) or the name of any one of
the prophets with bad words, it is then permissible without any hesitation to
kill him to fulfil the right of Allah Almighty and the right of his prophets.
This is also the opinion of the Hanafis because Abu U’baidah killed his father
and said to the Messenger of Allah Almighty (peace be upon him) “I heard him
abusing you and he (prophet) did not disapprove it” (Ibn Abidin 3/225,226,
NihayatulMuhtaj 8/64, Al-Muhadhdhab 2/233 and RaudatutTalibin 10/243, and the
hadith is the speech of Abu Ubaidah related by Abu Dawud in Al-Marasil as
mentioned in Al-Takhsis by Ibn Hajar Al-Asqalani 4/102, from the hadith of
Malik bin U’mair as a Mursal)
(e) Treachery [Ghadar], embezzlement [Ghulul]
and mutilation [Muthla]
31. The
majority of jurists hold the view that during Jihad it is forbidden [haram] to
act treacherously, steal from the booty and mutilate the body, because the
prophet (peace be upon him) said, “Do not embezzle (steal from the booty), do
not be treacherous and do not mutilate” (related by Muslim 3/1357 –Al-Halabi
from the hadith of Buraidah)
Embezzlement
[Ghulul] during Jihad is what happens
if one of the fighters hides anything from the spoils of war before it is
divided up. So it is not permissible for anyone to take anything from what he
has taken as war booty but he should keep it with the other spoils of war.
As regards
what is needed such as food, animal feed and weapon, it is permissible to take
them when needed (Ibn Abidin 3/224, Jawahar-ul-Iklil 1/254,255, Hashiyat-ud-Dusuqi
2/179 and Al-Mughni 8/494). This subject has been discussed in detail in the
chapters ‘Ghanima’ [Spoils of War] and ‘Ghulul’ [embezzlement].
Treachery [Ghadar] is what happens when a person
acts treacherously and breaches the treaty [A’had].
This is
forbidden [haram] because Allah Almighty says, “O believers! fulfil [your] promises” (5:01). Allah Almighty says,
“(But the treaties are) not dissolved with those pagans with whom Ye have
entered into alliance and who have not subsequently failed you in aught nor
aided anyone against you. So fulfil your engagements with them to the end of
their term: for Allah loveth the righteous.” (9:04). However, if the Kuffar
break the promise, it will be permissible to fight them without throwing their
covenant to them. But if the signs of breaking the covenant or promise appear
from the Kuffar, it will be permissible to throw their promise back to them,
because Allah Almighty says, “If thou
fearest treachery from any group throw back (their covenant) to them (to be) on
equal terms: for Allah loveth not the treacherous.” (8:58). This subject is
in detail in the chapters of ‘A’had’ [promise/covenant/treaty],
‘mua’hadah[pact/agreement/treaty] and ‘Aman’ [assurance of immunity].
As for
mutilation [muthla], it is a gruesome punishment such as cutting off of the
nose, ear, limb and so on. This was initially permissible without any penalty
but if a person inflicted damages upon the bodies of people, the qisas
(equality in punishment) would be implemented on him for disfiguring the people
by mutilation.
In short,
the mutilation [muthla] as retaliation upon the one who mutilates [other] is
established. There is disagreement with some detail in it. This is implemented
on the one who deserves killing not as a result of the forbidden muthla. On
this basis, there is nothing wrong with carrying the head of the
mushrik[polytheist] if it makes him resent and stops him from inflicting evil
upon our hearts.
There is
disagreement in carrying heads of the dead kuffar from one city to another,
between its being forbidden and permissible. This has been discussed in detail
in the chapter of ‘muthal’ [mutilation] (Ibn Abidin 3/225, Jawahruliklil 1/254,
HashiyatudDusuqi 2/179, RaudatutTalibin 10/250 and Al-Mughni 8/494)
(f) Burning
the enemy with fire, drowning him in the water and using catapult [minjaneeq]
against him
32. Ibn
Qudamah said, “If one can defeat the enemy, it is not allowed burning him with
fire. There is no disagreement [among the jurists], because Abu Hurairah (may
Allah be pleased with him) narrated, “Allah's Messenger (peace be upon him)
sent us in a mission (i.e., an army-unit) and said, “If you find so-and-so and
so-and-so, burn both of them with fire”. When we intended to depart, Allah's
Messenger (peace be upon him) said, “I have ordered you to burn so-and-so and
so-and-so, and it is none but Allah Who punishes with fire, so, if you find
them, kill them (i.e., don't burn them)” (related by Bukhari (Al-Fatah 6/149 t.
Assalafiyyah)
As for
burning them with fire before taking them; if they can be taken captive without
fire, no one is allowed to burn them with it, because they fall under the
category of those over whom one has power. However, when being powerless
against them without fire, one can do so following what most scholars hold,
such as Imam Thawri, Awzai’, and Imam Shafi’i. Similarly, according to these
scholars, it is not allowed to drown them in the water, if they can be overcome
without it. (Al-Mughni 8/448, 449)
33. As
regards seizing the castles: TheHanafis and the Shaafi’is say, it is
permissible to seize the kuffar in the country and the castles, breach the
river banks to drown them, stop water for them and using catapult against them
and so on, because Allah Almighty says, “Take them captive and besiege them”
(9:5). This is also because the prophet (peace be upon him) “besieged the
people of Taif and used catapult against them” (mentioned by Ibn Ishaq in
Al-Maghazi as in Asseerahof Ibn Kathir 3/658). Imam Ahmed agrees with the
Hanafis and the Shaafiis in the permissibility of using catapult against them
whether necessary or not. (Ibn Aabidin 3/223, Fathul Qadeer 5/197,
NihayatulMuhtaj 8/64, MughniulMuhtaj 4/223, and Al-Mughni 8/448, 449).
Al-Thauri, Al-Awzai’ and Ibn Mundhir are of the same view.
The Malikis
stood out as an exception to this position and said: “The enemy will be killed
in the fortress without being burnt and drowned, in case the Muslims or
children or women are with them” (HashiyatudDusuqi 2/177, JawaharulIklil 1/253)
The
Hanbalis opine that if one can defeat the enemy without drowning him, it is
impermissible to drown him if it leads to the destruction of the women and the
children whose destruction is intentionally haram [forbidden]. But if one does
not have the power to defeat the enemy except by drowning him, it [drowning
him] is then permissible. (Al-Mughni 8/448)
If the Imam
besieges a fortress, it is incumbent upon him to stay here. He should not go
away from it except in three conditions:
(1) When they [kuffar] accept Islam and save their
blood and wealth by [accepting] Islam, because the prophet (peace be upon him)
said, “I have been ordered to fight with the people till they say, 'None has
the right to be worshipped but Allah,' and whoever says, 'None has the right to
be worshipped but Allah,' his life and property will be saved by me except for
Islamic law, and his accounts will be with Allah, (either to punish him or to
forgive him.)” (Related by Bukhari)
(2) When they pay money for protection and
security, he must accept it from them, whether they give it as a whole or make
it kharaj [land tax] to pay it every year continuously. If they are those who
the Jizya is accepted from, it is then incumbent upon him to accept it, because
Allah Almighty says, “Fight those who believe not in Allah nor the Last Day nor
hold that forbidden which hath been forbidden by Allah and His apostle nor
acknowledge the religion of truth (even if they are) of the People of the Book
until they pay the Jizya with willing submission and feel subdued.” (9:29).
And if they
[Kuffar] pay money in a way other
than Jizya, he should check if there is any benefit in its acceptance and then
accept it. He should not accept it if he sees no benefit in it. (Al-Mughni)
(3) When
The Imam Conquers It.
(4) When the Imam sees any benefit in going away
from it [fortress], either because of damage as a result of his staying here,
or disrepair of it or because if he stays here he cannot gain the benefit, then
in all such conditions the Imam shall go away from it [fortress], for it is
narrated that the prophet (peace be upon him) besieged the people of Ta’if but
he did not find anything from them, so he (peace be upon him) said, “If Allah
will, we will return home tomorrow……..”(related by Bukhari (Alfatah 8/44,
Assalafiyah, on the authority of ‘Abdullah Bin ‘Umar)
(5) When they [Kuffar] agree to accept the
verdict of a ruler, it is permissible [for the Imam to leave the fortress],
because it is narrated that when the prophet (peace be upon him) besieged Bani
Qurayzah, they agreed to accept the verdict of Sa’d Bin Mu’adh. (a hadith about
it is mentioned in Sahih Bukhari).
Ibn Qudamah
said: “It is stipulated that the ruler must be free, Muslim, intelligent,
mature, male, just and jurist, just as all that is stipulated for the ruler of
Muslims. If the ruler is blind, it is permissible for the reason that blindness
does not harm here, because the purpose is to take his opinion and know the’
maslaha’ [benefit], therefore blindness does not harm in it. This is on the
contrary to the judgment where eye-sight is required for the ruler to recognize
the claimant [muddai’] from the defendant [Muddai’
Alaihi], the witness from the witnessed [Mashoodalaihi] and the defendant [Mashhoodlahu], the acknowledged kinsman [muqirrlahu i.e. a person
of unknown descent whose kinship has been acknowledged by the deceased not
through himself but another] from the person who acknowledged him [Al-Muqirr]
and to take into consideration the matter of fiqh [jurisprudence] related to
what is permissible and what is considered for him and so on. His fiqh
[jurisprudence] shall not be considered in all those rulings that have nothing
to do with it. Therefore, Sa’d bin Mu’adh was appointed a judge but it did not
prove that he knew all the rulings. And if they [Kuffar] choose two judges, it is permissible and the judgment must
be in agreement with both of them. If they choose a judge appointed by the
Imam, it is permissible, because the Imam does not choose other than the good
one. If they accept the verdict of a person from among them or appoint him to
them, it is not permissible, because they may choose the one who is not good.
If they appoint a good person and the Imam agrees with him, then it is
permissible because Bani Qurayzah agreed to accept the verdict of Sa’d Bin
Mu’adh and appointed him a judge, so the prophet (peace be upon him) agreed
with him and allowed his verdict and said, “You have given a judgment according
to Allah’s judgment” (related by Bukhari).
If the man
who they [Kuffar] agreed with died,
they shall have to agree to the one who is fit and good for being his
substitute. If they do not agree to his substitute or they demand a judge who
is not good, they will be returned to their Ma’man
[haven] and will come under siege till they agree [with his substitute]. If
they agree to judges and one of them dies and they agree to his substitute, it
is then permissible, otherwise, they will be returned to their Ma’man. Similarly, if they agree to
choose a judge who does not fulfil the required conditions of being a judge and
the Imam concurs with them on that matter, then it appears that he is not
capable of this work, in that case, he shall not be made a judge and they will
be returned to their ma’man as they were before.
34. As for
the characteristic of the arbitrator: if he gives a verdict that their fighters
[of Kuffar] should be killed and their offspring be seized, his verdict shall
be implemented, because Sa’d bin Muaadh gave a verdict to the people of Qurayza
in this regard and the prophet (peace be upon him) said: “you have judged among
them according to the judgment of Allah from above the seven heavens” (related
by Ibn Ishaq from Mursal of Alqama and Qaas as mentioned in Alfatah by Ibn
Hajar 7/412- its origin is mentioned in Sahih Bukhari Alfatah 7/412). If he
gives a verdict of releasing their fighters and children without ransom, the
Qadi said, his verdict shall be adhered to, and the same is the view of
Al-Shaafi’i, because the arbitrator gives his verdict in what he sees a
benefit, so he will have [the authority] of manna [i.e. releasing someone
without ransom] as do the Imam concerning the prisoners.
Abul
Khattab opined: his verdict shall not be followed because he must give a
verdict of what is related to good fortune [for Muslims] and keep in mind the
Muslims while releasing them without ransom [manna]. If he gives a verdict to
release their offspring without ransom, it should not be permissible because
the Imam cannot release their offspring without ransom if they are taken
captive, similarly, the arbitrator cannot. There is a probability of
permissibility too in this regard with some conditions. If the arbitrator judges them in return for a
ransom, it will be permissible because the Imam has options concerning the
prisoners of war between killing, ransom, istirqaq [enslaving someone] and
manna [releasing one without ransom], similarly, the arbitrator does have such
options. If the arbitrator gives a verdict to them to pay Jizya, his ruling
shall not be followed, because the treaty of protection is that of compensation
which cannot be done except by agreement. This is why the Imam cannot force the
prisoner of war to pay Jizya. If the arbitrator gives a verdict of killing and
seizing [the prisoners of war], it is permissible for the Imam to release some
of them, for Thabit Bin Qais asked the prophet (peace be upon him) about Zubair
Bin Bata from Qurayza and his wealth, so he (peace be upon him) replied to him.
There is disagreement with the war booty if Muslims possess it, for they have
control over it. If they [the prisoners of war] accept Islam before the ruling
is implemented upon them, their blood and possessions shall be protected
because they have accepted Islam, become free and their wealth belongs to
themselves, so enslaving them is not allowed. If they enter into Islam after
the verdict is made for them, it will be checked whether the ruling is related
to killing them, if it is so, then this ruling will be abolished because if
someone accepts Islam, it is incumbent to protect his blood. It is not allowed
to enslave them because they have accepted Islam before being enslaved. Abul
Khattab said: it is probably permissible to enslave them if they enter into
Islam after being captured, for the possession [of wealth] remains on the same
condition it was ruled in, and if it is ruled that the wealth is for Muslims,
then it will be Ghanimah [war booty]
because they have taken it by force and by besieging them. (Al-Mughni
8/380,381)
(G) Damaging The Property
35. If the Kuffar get ready or increase their strength
to fight the Muslims, we shall seek help from Allah Almighty and fight them to
achieve victory over them, even though it results in damaging their property.
However, if there is a strong probability of getting victory over them without
any damage to their property, then it is Makrooh
[disliked] to damage their wealth because it destroys without any need.
Damaging their property is not permissible unless it needs [to defeat them].
The objective is to break their forces and enrage them in the war, so if it is
achieved without causing damage to their property, it is essential to not
damage their property. (Ibn Abidin 3/223)
As regards cutting their trees and crops, the
trees and the crops are divided into three kinds:
The first
kind of trees and crops are those whose damage is permitted, provided that it
was dictated by military necessities, for example, if the trees or crops are
near the fort and prevent the army from conducting military operations, or if
the enemy is taking shelter behind them, or when the army needs to widen the
way or other than that. Or if the enemy cut our trees and crops, this sort of
destruction can be done in reciprocity, to desist them from it, and this is
permissible without any disagreement [among jurists].
Second of
them are those which, if damaged or cut off, will inflict harm on the Muslims
who get benefit from the existence of such trees and crops, such as receiving
food or seeking shelter or eating their fruits. Therefore, cutting such trees
and crops are forbidden [haram], for it leads to inflicting damage upon
Muslims.
A third of
them are other than the aforementioned which neither harm the Muslims nor
benefit, except for enraging the Kuffar and inflicting damage upon them. The
Hanbali jurists give two opinions concerning whether or not it is permissible
to cut them:
First: it
is permissible [to cut them]. The same is the view of Malik, Shaafi’i and so
on. Ibn Umar (may Allah be please with him) narrated that the Messenger of
Allah Almighty [peace be upon him] burnt the palm-trees of Banu An-Nadir”
(related by Bukhari-Al-Fatah 8/629 from the hadith of Abdullah bin Umar) and
Allah Almighty says, “Whether ye cut down
(o ye Muslims!) The tender palm-trees or ye left them standing on their roots
it was by leave of Allah and so that He might cover with shame the rebellious
transgressors.” (59:5).
Second: it
is not permissible [to cut them] because it is narrated by Ibn Masood (may
Allah be pleased with him) that his cousin came to him from a battle in which
he fought. So he said: “perhaps you have burnt corps? He said “yes”. He said:
‘perhaps you have drowned the palm-tree?’ He said, ‘yes’. He then said,
‘perhaps you have killed a child?’ He said, ‘yes’. [then] He said: your battle
should be free from [such] sins” (Athar of Ibn Mas’ud related by Saeed bin
Mansoor in his Sunan vol 2 p. 257 Ilmi press)
The reason
is that there is purely damage, it is, therefore, not permissible. This is also
the view of Al-Awzai, Al-Laith and Abu Thaur.
As for the
animals, we do not see any disagreement in the permissibility of killing them
during the war, because killing their beasts results in their killing and
defeat. The Malikis opine that following the more preferred view, it is Wajib
to burn the animals after killing them, provided that they [Kuffar] consider eating the dead as
legal in their faith. If they return to it before its decay, it is wajib to
burn it otherwise not, because it aims at desisting them from benefitting from
it.
As for
during other than the state of war: according to the Hanafis and the Malikis,
it is permissible to cut off their animals, as this will humiliate and weaken
them, so killing it will be identical to the case of their fighting.
The
Shaafiis and the Hanbalis opine it is never permissible because “the Messenger
of Allah (peace be upon him) forbade killing beasts of burden in cold blood” (Sabran; the expression Qutila Sabran is used to refer to
someone who was not killed in battle but massacred after having fallen into the
hands of the conqueror) (the hadith related by Muslim -3/1550 on the authority
of Jabir bin Abdullah). This is also because Abu Bakr as-Siddiq (may Allah be
pleased with him) said to Yazeed bin Abi Sufyan, “No fruit-bearing trees are to
be cut down and no crops should be set on fire. No animal should be killed
except those slaughtered for eating”.
The reason
is that it is a corruption [Fasad]
that is included in the general meaning of the words of Allah Almighty:
“When he turns his
back his aim everywhere is to spread mischief through the earth and destroy
crops and cattle. But Allah loveth not mischief.” (2:205)
It is
permissible to cut off the animals to eat if needed because the necessity makes
even the property of the infallible permissible, so the property of the kafir
is more appropriate. In case there is no need as such, then we will have to
see: if the animal is intended only for eating purposes such as chicken, pigeon
and other birds, its ruling will be like
that of food because it is not for anything other than eating purpose. If the
animal is from what is required during the fighting, it is impermissible to
slaughter it, except for eating.
(Al-Mughni 8/451)
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