Continuing our series on war and peace in Islam, the justifications Jihadi-Salafi groups give for their attacks that breach well-established Islamic rules on covenants and treaties are based on their issuing of erroneous Islamic edicts (fatawa).

Issuing fatawa is only for qualified scholars

Ijtihad (اِجْتِهاد) is derived from the root word Jahada (جهد). Linguistically, it means striving or self-exertion in any activity, which entails a measure of hardship. The great scholars of Usul such as Abu al-Husayn Ali otherwise known as Al-Amidi (d.631 AH) and Mohammad bin Ali Al-Shawkani (d.1255 AH) defined it as, “the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shariah from their detailed evidence in the sources.”[1]

Extracting Islamic edicts (fatawa) from the Qur’an and Sunnah via ijtihad is only for those who are qualified. If someone is seriously ill, they will go to a doctor to diagnose their illness and prescribe medicine. If they went to an unqualified person, then they may end up losing their life due to being misdiagnosed and prescribed the wrong medicine. The Messenger of Allah ﷺ said,

مَنْ تَطَبَّبَ وَلَمْ يُعْلَمْ مِنْهُ طِبٌّ قَبْلَ ذَلِكَ فَهُوَ ضَامِنٌ

“Whoever practices medicine without any prior knowledge of medicine will be held liable.”^[2]

This is similar to issuing fatawa. If an unqualified person issues an erroneous fatwa related to social interactions (mu’amilat) such as family, politics and war then it can lead to disastrous consequences for society. The death and destruction left in the wake of the attacks by Jihadi-Salafi groups like ISIS and Al-Qaeda is a stark example of this.

The Prophet ﷺ severely rebuked some of the sahaba who gave an incorrect fatwa which led to someone’s death. Jabir narrated that “We went out on a journey, and a stone struck one of our men, injuring his head. Then he had a wet dream and asked his companions, ‘Do you find any dispensation (rukhsa) for me to perform tayammum?’[3] They said, ‘We do not find any dispensation for you, as you have access to water.’ He performed ghusl (bath) and died. When we came to the Prophet ﷺ he was informed of this and he said, ‘They killed him, may Allah kill them! Why did they not ask when they did not know? For the cure for ignorance is asking. It would have been sufficient for him to perform tayammum and squeeze out a bandage (or to bandage. Musa was uncertain) He should have placed a cloth over his wound, then wiped over it and washed the rest of his body.’”[4]

This is why the Prophet ﷺ said,

أَجرَؤكم على الفُتْيا أجْرؤُكم على النَّارِ

“Your taking of a risk with issuing Fatawa is like taking a risk with the hellfire.”^[5]

Marc Sageman says, “People assume that the jihadis are well educated in religion. That is not the case. A few religious scholars exist in their midst, but theirs is a very untraditional interpretation of the scriptures. The majority of terrorists come to their religious beliefs through self-instruction. Their religious understanding is limited; they know about as much as any secular person, which is to say, very little. Often, they have not started reading the Quran seriously until they are in prison, because then it is provided to them and they have lots of time to read it.”^[6]

Muhammad Al-Yaqoubi says, “Saudi Arabia strictly follows the Hanbali school, so its Salafism is limited to theology while recognizing the other three schools of law. ISIS, on the other hand, rebels against all of the schools of Islamic law, and against most Salafi interpretations, while adhering to Ibn Taymiyya in his theological views. This lack of an authority in legislation, coupled with the absence of a major reference or manual of law in the hands of ISIS’ judges and Shariah personnel, has led almost every fighter placed in charge of a situation to present a contrived legal ruling based on his own understanding of the Quran and Tradition, most often selecting the quotes which seemingly validate their vengeful ill will. The brutality, savagery, and barbarity we have witnessed from this group is a testimony to the inherent danger of giving ignorant fanatics the authority to do the job of the great independent legal authorities (mujtahids), a status which even great figures such as al-Ghazali and al-Nawawi could not claim.”^[7]

Misunderstanding the reality causes erroneous fatawa

Misunderstanding the reality (manat) of an issue is the main area where most of these Jihadi-Salafi fatawa break down.

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.”^[8]

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).[9]

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.”[10] 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.[11] 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.”[12]

“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.”[13]

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.”^{^[14]}

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.[15]

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.”[16]

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.”[17]

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.[18]

Analogy of a historical reality with a new reality

A vivid example of this is when one Muslim British citizen Shaykh Abu Safiyyah attempted to travel to Afghanistan to fight with the Taliban against coalition forces which included British forces. This is clear cut treason to fight the armies of your host country, but in his own words he explains his mistake. This is the mark of a true believer who is brave and honest enough to admit their mistakes, and willingly to do this publicly so that others do not fall into the same trap as he did. He says, “coupled with my emotions and stuff, as I said I read a few books, read a few fatawas which were written what 20, 30 years ago and I said you know what this definitely applies to today that’s it. Afghanistan under the Soviet Union is the same now and that was it for me. So what I did was qiyas upon qiyas. I took a fatwa from one time and I applied with qiyas to another time, which is according to the majority of the ‘usuliyyun^[19] if not all of them, is completely haram.”^[20]

Of course, this does not apply to the Afghans who have lived in those lands for thousands of years, and who are legitimately resisting the invasion and occupation of their country. This is why the Afghan Taliban has never been a proscribed terrorist group under the UK’s Terrorism Act 2000 because they are referred to as insurgents and not terrorists. However, any British resident offering material support or encouraging them to kill British troops in Afghanistan would be considered a terrorist. Islamically such people have also contradicted their Amān (covenant) of citizenship or residency.

It should be noted that this is not an endorsement of the occupation. Legal opposition to the war and lobbying the UK government to withdraw its troops, is perfectly acceptable behaviour both morally and ethically. General Michael Rose in relation to the invasion of Iraq in 2003 said, “the determination of America and Britain to enforce their fundamental view on the world through military action inevitably brings them into armed confrontation with those who follow the path of Islam, for Islam also demands that Muslims defend their faith when it is threatened.”[21]

No one should blindly follow any fatwa

Imam Nawawi in his famous 40 hadith book quotes the following narration:

Wabisah b. Ma’bad said: I came to the Messenger of Allah ﷺ who said to me: “Come close O Wabisah” So I drew closer to him until my knee was touching his knee. He said: “O Wabisah, shall I tell you what you have come to ask me about?” Wabisah said: “Tell me O Messenger of Allah ﷺ.” He said: “You want to question me on the subject of virtue and sin?” “Yes,” I replied, and he went on, “Question your heart. Virtue is that by which the soul enjoys repose and the heart tranquillity. Sin is what introduces trouble into the soul and tumult into man’s bosom, whatever fatwas people may give you.”^[22]

This doesn’t mean the intellect (heart) determines what is husn (halal action) and what is qubh (haram action). Rather it means using the mind to research and assess any legal ruling to ensure it conforms to the Islamic texts. For the majority of people this will be by asking those who are knowledgeable and qualified in this field i.e. the scholars. This is even more vital when someone is issuing fatawa which results in treachery and the deaths of thousands of innocents. The Prophet ﷺ said, فَإِنَّمَا شِفَاءُ الْعِيِّ السُّؤَالُ “The cure for ignorance is asking questions.”[23]

Severity of sinning by oppressing the people

The Messenger of Allah ﷺ said, “Do you know who are bankrupt?” They said, “The one without money or goods is bankrupt.” The Prophet said, “Verily, the bankrupt of my nation are those who come on the Day of Resurrection with prayers, fasting, and charity, but also with insults, slander, consuming wealth, shedding blood, and beating others. The oppressed will each be given from his good deeds. If his good deeds run out before justice is fulfilled, then their sins will be cast upon him and he will be thrown into the Hellfire.”[24]

This is why Sufyan al-Thawri (d.778CE) said,

إِنْ لَقِيتَ اللَّهَ تَعَالَى بِسَبْعِينَ ذَنْبًا فِيمَا بَيْنَكَ وَبَيْنَ اللَّهِ تَعَالَى أَهْوَنُ عَلَيْكَ مِنْ أَنْ تَلْقَاهُ بِذَنْبٍ وَاحِدٍ فِيمَا بَيْنَكَ وَبَيْنَ الْعِبَادِ

“For you to meet Allah Almighty with seventy sins between you and Allah would be easier on you than to meet Him with a single sin between you and His servants.”[25]

Allah (Most High) is All-Forgiving and All-Merciful and forgives all sins except shirk. The people however are not so forgiving and merciful and want justice for the wrong committed against them. The Prophet ﷺ said, “The first of matters to be judged between people [on qiyamat] will be cases of murder.”[26]

Therefore, great care needs to be taken when undertaking actions related to people, family and society. Fatawas which justify treachery and the breaking of convenants, even if they are based on some tenuous justification from the Islamic texts are to be rejected.

“Your taking of a risk with issuing Fatawa is like taking a risk with the hellfire.”^[27]

Notes

[1] Abu Tariq Hilal/Abu Ismael al-Beirawi, ‘Understanding Usul Al-Fiqh,’ Revival Publications, 2007, p.138; Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250.

[2] Sunan Ibn Mājah 3466, https://sunnah.com/ibnmajah:3466 Hasan (fair) according to Al-Albani

[3] Tayammum is the Islamic method of dry purification using clean earth, sand, or stone in place of water

[4] Sunan Abi Dawud 336, https://sunnah.com/abudawud:336

[5] Musnad of Ad-Daarami 69/1, Kanz ul-‘Amaal 28961. Al-Haafizh said that the Musnad of Ad-Daarami is not of a lesser level than the books of the Sunan and if it was included with the five (books) then it would be preferred to the Sunan of Ibn Maajah

[6] Marc Sageman, ‘Leaderless Jihad Terror Networks in the Twenty-First Century,’ University of Pennsylvania Press, 2008, p.51

[7] Muhammad Al-Yaqoubi, ‘Refuting ISIS: A Rebuttal of Its Religious And Ideological Foundations Paperback,’ Sacred Knowledge, 2015, p. xiii

[8] Holy Qur’an, Surah Al-Ma’ida, verse 1

[9] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58

[10] Jami’ at-Tirmidhi 1352, https://sunnah.com/tirmidhi:1352

[11] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58

[12] Sahih al-Bukhari 2735, https://sunnah.com/bukhari:2735

[13] Muhammad Hassan Abdul Ghaffar, The Book of Legal Maxims: Between Originality and Guidance, https://shamela.ws/book/37692/58

[14] Al-Shafi’i, Al-Umm, https://shamela.ws/book/1655/1117

[15] Rashad Ali and Hannah Stuart, ‘A Guide to Refuting Jihadism: Critiquing radical Islamist claims to theological authenticity,’ p.90

[16] Al-Jazeera interview with Mahfouz Ould Al-Walid, 17 and 19 October 2012.

[17] Rashad Ali and Hannah Stuart, ‘A Guide to Refuting Jihadism: Critiquing radical Islamist claims to theological authenticity,’ p.90

[18] Wael b. Hallaq, ‘Sharia: Theory, Practice, Transformations,’ Cambridge University Press, 2009, p.239

[19] Scholars of the fundamentals of Islamic jurisprudence (usul al-fiqh)

[20] 5Pillars, Jihad with the Taliban | Blood Brothers #4, https://www.youtube.com/watch?v=6fz15sCyPV8

[21] Michael Rose, ‘Washington’s War: From Independence To Iraq,’ Weidenfeld & Nicolson, 2007, p.16

[22] Al-Munziri said: Ahmad has narrated this hadith with a hasan chain. An-Nawawi said: the hadith is hasan and has been reported by Ahmad and ad-Daarimi in both their Musnads.

[23] Sunan Abi Dawud 336, https://sunnah.com/abudawud:336

[24] Sahih Muslim 2581, https://sunnah.com/muslim:2581

[25] Tanbīh al-Ghāfilīn 1/380

[26] Ṣaḥīḥ al-Bukhārī 6864, Ṣaḥīḥ Muslim 1678

[27] Musnad of Ad-Daarami 69/1, Kanz ul-‘Amaal 28961. Al-Haafizh said that the Musnad of Ad-Daarami is not of a lesser level than the books of the Sunan and if it was included with the five (books) then it would be preferred to the Sunan of Ibn Maajah