Continuing our series on war and peace in Islam, there is confusion over the classical ‘covenant of security’ and when it applies and when it breaks. This will be continued over a number of articles as it’s a very important topic to be understood in light of the historical attrocities that have been committed in both Muslim and non-Muslim countries.
Citizenship and residency visas are the modern equivalents of the classical sharia concept of Al-Amān (الأَمان) which are security covenants. Ahmed Al-Dawoody says, “Amān (literally, protection, safety) forms an essential part of the Islamic law of war.”[1] He continues, “Some contemporary Muslim scholars have likened this safe conduct status to the “passport” system. Indeed, this ancient safe conduct system is similar to the visa system in some respects. It is a temporary permission to stay in a foreign country and can be renewed after its expiry date.”[2]
Fulfilling security covenants is a well-established rule, that was codified by the imams of the classical schools of thought and applied throughout Islamic history. While abuses, mistakes and collateral damage inevitably occurred by the Islamic armies, since these are human armies not armies of angels, on the whole “rule of law at the height of war” became a mantra of the Islamic conquests.
Unfortunately, nowadays the classical understanding of ahkham al-jihad (rules related to war) has been severely curtailed due to the fear among many of being labelled a terrorist and extremist. This has led to a vacuum in this field, which has been filled by the takfiri groups who have invented new rulings and ideas which are beyond the pale of what the Islamic texts permit and do not permit in relation to warfare. This has led to a maligning of the concept of jihad where it is equated with terrorism and extremism. Jihad is not terrorism. It has a very clear objective which is to make Allah’s word the highest i.e. that justice is established by implementing the Islamic sharia in the lands it governs.
Coming back to Al-Amān (security covenants), these are a type of treaty which Muslims must fulfil.
Al-Kamal ibn al-Humam (d.1457CE) says, “It [Al-Amān]is a kind or type of Muwaada’ah (treaty).”[3]
Al-Aman is one of the causes (asbab) for the cessation of fighting because as Akmal al-Din al-Babarti (d.1384CE) says, “it contains the leaving of Al-Qitaal (fighting) like the Muwaada’ah.”[4]
The Prophet ﷺ said,
الْمُسْلِمُونَ عَلَى شُرُوطِهِمْ إِلاَّ شَرْطًا حَرَّمَ حَلاَلاً أَوْ أَحَلَّ حَرَامًا
“Muslims are bound by their conditions, except for a condition that makes halal what is haram or makes haram what is halal.”[5]
Muhammad Haykal says, “This cessation of fighting could be the result of the Amān which the disbelievers grant to the Muslims just as it could be as a result of the Amān that the Muslims had granted to the disbelievers … Therefore, in each of these two cases, it is obligatory to cease the fighting against those disbelievers from the people of war; whether they were from those granting the Amān or they were those whom the Amān had been granted to … It is upon this basis that it stands out that this Amān represents a type of the Muwaada’ah (treaty).”[6]
All of the schools of thought are in agreement that a Muslim must honour the Amān when entering lands not ruled by Islam which in classical fiqh are known as Dar Al-Harb. Mustafa Al-Zarqa (d.1999) says, “Calling the non-Muslim country Dar al Harb, does not mean that they are in a state of war against Muslims. It only means a non-Muslim country, an independent country that is not under the sovereignty of Islam.”[7]
Ala’ al-Din al-Haskafi al-Hanafi (d.1677CE) says, “Any Muslim who enters Dar Al-Harb under an Amān cannot kill, loot, or commit fornication with any one of them, as Muslims stand by their contract.”[8]
Ibn Qudamah al-Hanbali (d.1223CE) says, “If a Muslim enters Dar Al-Harb as a messenger or merchant—and it is customary for our merchants to enter their lands—he is under their Amān, and they are under his Amān; because Amān is granted by one party to the other.”[9]
Muhammad Al-Yaqoubi sums up this position, “Muslims who live in non-Muslim lands in any continent, whether the population consists of People of the Book like the United States of America, or consist of other faiths like in China and Japan, have entered those countries under covenant and contract, manifested in either the visa, documents for residency, or citizenship. Each of these documents which are obtained by a Muslim in non-Muslim lands contain an agreement, signature, and consent that he or she is a peaceful resident, not a combatant, or that he or she is a citizen and shall protect the land in which he or she is staying, not be an enemy of it.”[10]
Citizenship and residency visas are valid Islamic Contracts
Citizenship and residency visas are the modern equivalents of the classical sharia concept of Al-Amān (الأَمان) which are security covenants. Fulfilling security covenants is a well-established rule, that was codified by the imams of the classical schools of thought and applied throughout Islamic history. In the Qur’an, Allah (Most High) orders Muslims to fulfil their contracts and covenants:
يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَوْفُوا۟ بِٱلْعُقُودِ
“O believers! Honour your covenants.”[11]
The definite article (alif-lam) on the word العُقُود (covenants) is mutlaq (unrestricted) which means it includes all types of contracts and covenants, such as citizenship and residency, employment and business and so on.
Some of those born into citizenship as opposed to naturalised citizens, or those on residency visas may say “I didn’t sign or say any pledge!” Compliance with the pledge for those born in the country is known through custom (‘urf), so in reality both types of citizens are bound by the pledge and oath. This is based on the well-known sharia maxim:
المعروف عرفا كالمشروط شرطا
What is known by custom (‘urf) is like what is stipulated by a condition (shart).[12]
Muhammad Hassan Abdul Ghaffar, explains the meaning of this maxim. “If a prevailing custom is agreed upon by people regarding something, it is considered in Islamic law (sharia) as a condition (shart). It is mentioned in some traditions that Muslims are bound by their conditions. These conditions are qualified by the Prophet’s ﷺ saying: إِلاَّ شَرْطًا حَرَّمَ حَلاَلاً أَوْ أَحَلَّ حَرَامًا “Except for a condition that makes halal what is haram or makes haram what is halal.”[13] This is because the Prophet ﷺ said, every condition that is not in the Book of Allah is invalid, even if there are a hundred such conditions.[14] He ﷺ said,
مَنِ اشْتَرَطَ شَرْطًا لَيْسَ فِي كِتَابِ اللَّهِ فَلَيْسَ لَهُ، وَإِنِ اشْتَرَطَ مِائَةَ شَرْطٍ
“Whoever stipulates a condition that is not in the Book of Allah, it is not valid for him, even if he stipulates a hundred conditions.”[15]
“Therefore, if people agree upon something or if it is a custom among them, it is considered a condition, and this condition must be fulfilled.”[16]
Imam Al-Shafi’i (d.820CE) said in Al-Umm:
فإن أمنوه أو بعضهم وأدخلوه في بلادهم بمعروف عندهم في أمانهم إياه وهم قادرون عليه فإنه يلزمه لهم أن يكونوا منه آمنين وإن لم يقل ذلك
“If they [disbelievers] grant him or some of them security and admit him into their land with a guarantee of safety, and they are capable of providing it, then it is incumbent upon them to be safe from him, even if they do not explicitly state this.” [17]
Former Al-Qaeda ideologue Sayyed Imam Al-Sharif aka Dr. Fadl criticised the 9/11 attacks in a pamphlet written while in an Egyptian prison and serialised in two Arab newspapers in 2007. Specifically, Dr. Fadl accused the hijackers of violating the terms of their visa, which he interpreted it as a form of Amān.[18]
In 2012, a former member of al-Qaeda’ s Shura Council Mahfouz Ould Al-Walid, stated in an interview with al-Jazeera:
“such operations [9/11] violate the pact we made. Anybody who enters the U.S. uses an entrance visa, which we consider, from a religious perspective, to be a binding treaty of protection. Anybody who is protected by the enemy should not harm the enemy. He is prohibited from breaching this treaty of protection.”[19]
Bin Laden and the former Al-Qaeda leader al-Zawahiri disagreed, however, and distinguished between acquired citizenship – which involves taking an oath (‘ahd) – and a visa or citizenship by birth, which do not. While their interpretations differ, it is testament to the strength of the Islamic obligation to honour an oath that senior Al-Qaeda figures view perceived transgressions with such severity.”[20]
As mentioned, there is no difference contractually between a natural born citizen or naturalised citizen due to custom (‘urf). The purchase of a short-term or long-term residency visa is a valid Islamic contract (‘aqd), consisting of two contracting parties, with offer and acceptance over a subject matter of entering the host’s country.[21]
Caliph cannot order treachery
The second invasion of Iraq in 2003 mobilised the Jihadi-Salafi movement once again after their base in Afghanistan was destroyed. Iraq then became the new front for Al-Qaeda under the leadership of Abū Muṣʻab al-Zarqāwī in 2004, but al-Zarqāwī went to such extremes, declaring open war against Shi’ites and massacring civilians, that even Al-Qaeda’s leadership formally rebuked him. After his death in 2006, the Islamic State of Iraq (ISI) was formed under Abu Umar Al-Baghdadi (d.2019). This group then become the Islamic State of Iraq and Syria (ISIS) in 2013, and in 2014 ISIS declared itself as a caliphate with Al-Baghdadi its ‘caliph’.
Baghdadi issued an order to the Muslim Ummah, “This is the order of the Khalifah…Either ones [sic] performs hijrah to the wilayat of the Khilafah or, if he is unable to do so, he must attack the crusaders, their allies, the Rafidah, the tawaghit, and their apostate forces, wherever he might be with any means available to him, and he should not hesitate in doing so, nor consult any supposed “scholar” on this obligation. He should attack after declaring his bay’ah[22] to the Khilafah, so as not to die a death of Jahiliyyah.”[23]
It is true that once a legitimate caliph has been elected with a sahih bay’ah (legally convened pledge of allegiance), then all the Muslims living within his domains are obliged to obey the caliph as citizens of the caliphate. This obedience however is not unconditional, and the caliph cannot order someone to disobey Allah by being treacherous. The Prophet ﷺ said,
لاَ طَاعَةَ فِي مَعْصِيَةٍ، إِنَّمَا الطَّاعَةُ فِي الْمَعْرُوفِ
“There is no obedience to anyone if it is disobedience to Allah. Verily, obedience is only in good conduct.”[24]
This is a general principle when it comes to following any order or law from anyone. Muslims, non-Muslims, parents, caliphs, rulers, army commanders, company directors etc are not obeyed in sin. If they order treachery, corruption, unlawful killing, torture and oppression, there is no obedience here. Even in the western justice systems “just following orders” is generally rejected, establishing the principle that individuals are responsible for their actions. The Nuremberg Trials of Nazi war criminals is the most famous in this regard.
We need to keep in mind that the caliph is simply an executor of Islamic law. He is not elevated to such a high status that Muslims blindly follow him in everything he orders. Rashida Rida (d.1935) explains this. “The caliph in Islam is nothing more than a leader of government whose powers are limited. He has no authority or control over people’s spirits and hearts. He is but the one who implements the revealed law. The duty to obey him is restricted to that. This means obeying the revealed law, not obeying him personally…”[25]
Therefore, no caliph, fake or otherwise can order Muslims to disobey Allah and be treacherous in the lands in which they reside. Muhammad Al-Yaqoubi says, “Therefore, the one who gives allegiance to al-Baghdadi is neither required to uphold the oath nor obey the one given allegiance. Maintaining allegiance to him is a major sin and a cause of schism in the community.”[26]
Notes
[1] Ahmed Al-Dawoody, ‘The Islamic Law of War: Justifications and Regulations,’ Palgrave Macmillan, 2011, p.129
[2] Ahmed Al-Dawoody, ‘The Islamic Law of War: Justifications and Regulations,’ Palgrave Macmillan, 2011, p.130
[3] Al-Kamal ibn al-Humam, “Fath ul-Qadeer, 5/462
[4] Akmal al-Din al-Babarti, Al-‘Inaverse ‘Ala l-Hidaverse
[5] Jami’ at-Tirmidhi 1352, https://sunnah.com/tirmidhi:1352
[6] Muhammad Khayr Haykal, ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya,’ vol.6, Chapter Three: The Mu’aahadaat (treaties) and Al-Amaan (the security)
[7] Mustafa Az-Zurqa, Fatawa, pp. 626-625, quoted in Qaradawi, Fiqh of Minorities, p.170
[8] Ibn ‘Abidin, Radd Al-Muhtar ‘ala al-Durr al-Mukhtar (vol. 4 p. 166),
https://shamela.ws/book/21613/2297#p1
[9] Ibn Qudāmah, Al- Kāfī, Vol. 4, p. 163. https://shamela.ws/book/21731/1333
[10] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal Of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p.31
[11] Holy Qur’an, Surah Al-Ma’ida, verse 1
[12] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58
[13] Jami’ at-Tirmidhi 1352, https://sunnah.com/tirmidhi:1352
[14] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58
[15] Sahih al-Bukhari 2735, https://sunnah.com/bukhari:2735
[16] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58
[17] Al-Shafi’i, Al-Umm, https://shamela.ws/book/1655/1117
[18] Rashad Ali and Hannah Stuart, ‘A Guide to Refuting Jihadism: Critiquing radical Islamist claims to theological authenticity,’ p.90
[19] Al-Jazeera interview with Mahfouz Ould Al-Walid, 17 and 19 October 2012.
[20] Rashad Ali and Hannah Stuart, ‘A Guide to Refuting Jihadism: Critiquing radical Islamist claims to theological authenticity,’ p.90
[21] Wael b. Hallaq, ‘Sharia: Theory, Practice, Transformations,’ Cambridge University Press, 2009, p.239
[22] The bay’ah or pledge of allegiance, is a ruling contract which governs the relationship between Muslims and the Islamic state. For those Muslims living under the authority of the state, the bay’ah is their citizenship contract with its ruler – the Caliph.
[23] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p.7
[24] Ṣaḥīḥ al-Bukhārī 7257, https://sunnah.com/bukhari:7257 Ṣaḥīḥ Muslim 1840, https://sunnah.com/muslim:1840a
[25] Muhammad Rashid Rida, ‘The Caliphate or Supreme Imamate,’ Translated by Simon A Wood, Yale University Press, 2024, p.192 ; Original Arabic: https://shamela.ws/book/9682
[26] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p.28
Islamic Civilization 