1. Background
2. Second Pledge of Al-Aqaba
3. Imprisoned at Badr
4. Informing the Prophet ﷺ of the Quraysh’s plans prior to Uhud
5. The Final Emigrant
6. When did Al-ʿAbbās convert to Islam?
7. Al-Hajjaj ibn ‘Alat lied to retrieve his wealth in Makkah
8. Nu’aym ibn Abdullah remained living as a Muslim in Makkah
9. Muslims are not a fifth column
10. Notes

According to some historians Al-ʿAbbās remained in Makkah after his conversion to Islam in order to inform the Prophet ﷺ of the events in the city i.e. spying. Some may misconstrue this as an evidence to permit Muslim citizens of non-Islamic lands to spy for a future caliphate, even though this is a clear breach of their Aman (citizenship and residency status).

Al-ʿAbbās ibn Abd al-Muttalib (May Allah be pleased with him) was the Prophet Muhammad’s ﷺ uncle. When the Prophet ﷺ migrated to Medina to establish the Islamic State, Al-ʿAbbās remained behind in Makkah as he hadn’t converted to Islam at this point in time. Just before the Conquest of Makkah, he converted to Islam and made hijra to Medina as the final emigrant, giving him a high status among the sahaba compared to those who converted after the conquest.

Allah (Most High) says,

لَا يَسْتَوِى مِنكُم مَّنْ أَنفَقَ مِن قَبْلِ ٱلْفَتْحِ وَقَـٰتَلَ ۚ أُو۟لَـٰٓئِكَ أَعْظَمُ دَرَجَةًۭ مِّنَ ٱلَّذِينَ أَنفَقُوا۟ مِنۢ بَعْدُ وَقَـٰتَلُوا۟

Those of you who donated and fought before the victory ˹over Mecca˺ are unparalleled. They are far greater in rank than those who donated and fought afterwards.[1]

Background

“Al-ʿAbbās was the most generous man of the Quraish. Moreover, he was good to his relatives and maintained the bond of kinship! Moreover, he was an extremely intelligent man. His intelligence was tinged with craftiness. This, along with his high station among the Quraish, enabled him to avert mischief and abuse against the Prophet ﷺ when he began to invite people openly to embrace Islam.”[2]

Al-ʿAbbās was one of the leaders of the Prophet’s ﷺ tribe Banū Hāshim, which had been persecuted for years by the other clans of Quraysh. A few years prior they had been expelled from Makkah and boycotted for three gruelling years. At the Battle of Badr members of Banu Hashim including Al-ʿAbbās had been forced to accompany the army and fight the Muslims against their will. This is why the Prophet ﷺ instructed the sahaba that certain people should not be killed in the battle, such as the youth of the Banū Hāshim, who were forced to attend.

Therefore, any discussion concerning the topic of Al-Amān (الأَمان) which means a security covenant, needs to be understood in light of the tribal structure of pre-Islamic Makkah, where the modern concept of citizenship did not exist. The Quraysh knew fully well that Al-ʿAbbās loved his nephew deeply and his loyalty lay with the Muslims, but they tolerated his presence in Makkah as either he was not Muslim, or did not declare his Islam openly.

Second Pledge of Al-Aqaba

Just before the hijra, the Prophet ﷺ met the Aws and Khazraj tribes at Al-Aqaba in Mina, during the last days of the Hajj. This was a top-secret meeting where 75 Muslims from Aws and Khazraj managed to slip away during the dead of night from their camp in Mina,[3] to meet the Prophet ﷺ and give him their bay’ah (pledge of allegiance). Despite the secrecy Al-ʿAbbās who was not Muslim accompanied the Prophet ﷺ and participated in the event. This shows that Al-ʿAbbās was assisting Islam even as a non-Muslim. Therefore his actions of spying in Makkah which helped the Muslims, could easily have been done while he was a non-Muslim.

Imprisoned at Badr

Al-ʿAbbās was taken prisoner by the Muslims at Badr, and then claimed he was a Muslim so he shouldn’t be freed and not ransomed for money like the other prisoners.

“Al-ʿAbbās approached the Prophet and said, “O Messenger of Allah, why is there a ransom on me when I am a Muslim?” The Prophet said, “Allah knows best as to whether your Islam is true.” In other words, it may be true, but we must judge according to the apparent. He continued, “If what you say is true, Allah will give you something better.” Al-ʿAbbās replied, “O Messenger of Allah, you put my ransom as 4,000 dirhams, but I do not have that much money.” The Prophet replied, “Where is the money that you and Umm al-Faḍl (his wife) hid on such-and-such day? You said to her, ‘If I ever die, this money will go to our children.’ Where is that money?” Al-ʿAbbās immediately responded, “I swear by the One Who sent you with the Truth that you are the Messenger of Allah. No-one knew about that!””[4]

Yasir Qadhi comments on this, “Al-ʿAbbās was a self-proclaimed Muslim, but perhaps certainty did not enter his heart until that moment.”[5]

Informing the Prophet ﷺ of the Quraysh’s plans prior to Uhud

It’s important to note that there is no explicit evidence in the seerah that the Prophet ﷺ ordered Al-ʿAbbās or any other Muslim residing in Makkah to spy on Quraysh. The primary evidence used by the historians, to extrapolate that Al-ʿAbbās remained behind in Makkah as a ‘spy’ is the Battle of Uhud. Al-ʿAbbās informed the Prophet ﷺ that the army of Quraysh was heading to Medina.

“As soon as the Quraysh left, al-ʿAbbās sent a trusted servant to inform the Prophet ﷺ. Al-ʿAbbās expressed his īmān to the Prophet after Badr, but it is theorised that he returned to Mecca as a secret Muslim, formally converting in public at the Conquest of Mecca. The benefits of his clandestine belief in Mecca are clearly demonstrated in this example where he was able to notify the Prophet of major developments. The messenger raced to Medina, and as a lone rider was able to overtake the army. He reached the Prophet who asked Ubayy ibn Kaʿb to read the letter and instructed him to keep the contents top-secret until further notice. The Prophet rushed home and met with senior members of the Anṣār then sent out some spies to confirm the news. The Prophet did not distrust al-ʿAbbās, but the developments were so significant that wisdom would dictate one act with caution and avoid hastiness. The Prophet’s conduct is once again a vital lesson for the believer.”[6]

Al-ʿAbbās informed the Prophet ﷺ of the army’s departure of his own volition. If Al-ʿAbbās was not Muslim then this would explain why the Prophet ﷺ verified the information. We have already seen at Badr where the Prophet ﷺ responded to Al-ʿAbbās’s claims of being Muslim, “Allah knows best as to whether your Islam is true.”

The Final Emigrant

If Al-ʿAbbās was indeed an official spy for the Islamic State in Medina, then him staying in Makkah and providing intelligence for the upcoming conquest would have proved invaluable. It is clear from the seerah, however that Al-ʿAbbās did not know about the conquest which is why he embarked on his hijra and met the army on the way to Medina.

“The Muslims embarked, and as they passed by the valley of Juḥfah, less than a quarter of the way, they encountered the uncle of the Prophet ﷺ, Al-ʿAbbās ibn ʿAbd al-Muṭṭalib. He was completely unaware of the expedition and was emigrating to Medina as a Muslim. Allah honoured him as the last human being to be counted amongst the Emigrants. As the Prophet said, “There is no Emigration after the Conquest.” The Prophet rejoiced immensely then instructed Al-ʿAbbās to take his family to Medina and join the army.”[7]

When did Al-ʿAbbās convert to Islam?

Despite the incident at Badr where he proclaimed his Islam, the historians still differ on whether he truly accepted Islam at this point or not.

Yasir Qadhi discusses that “There are various opinions as to when exactly al-ʿAbbās accepted Islam. Ibn ʿAbd al-Barr argues that he accepted Islam just before Khaybar, Ibn Ḥajar believes that he accepted Islam at this point i.e., just before the Conquest [of Makkah], and Ibn Kathīr maintains that he was living in Mecca as a Muslim but concealed his faith outwardly at the behest of the Prophet ﷺ. The evidence is not entirely clear, but it can be definitively said that his heart softened towards Islam at the Battle of Badr, though the exact time of conversion may be ambiguous.”[8]

Ibn Hajar (d.1449) says, “His conversion to Islam, according to the most widely accepted view, occurred before the conquest of Mecca, though some say it was even before that, which is not far-fetched, as there is support for this in the hadith of Anas concerning the story of Al-Hajjaj ibn ‘Alat. However, Abu Rafi’s statement in the story of Badr, “It is as if Islam entered upon us, the family of the Prophet,” does not indicate that al-‘Abbas converted at that time.”[9]

In my opinion, it seems Ibn Hajar is correct and that Al-ʿAbbās converted to Islam just before the Conquest of Makkah, which is why he emigrated at this time and not before. Any ‘spying’ he undertook would have been as a non-Muslim and so not subject to the rules of the sharia.

Al-Hajjaj ibn ‘Alat lied to retrieve his wealth in Makkah

Ibn Hajar mentions the story of Al-Hajjaj ibn ‘Alat as an evidence to indicate that Al-ʿAbbās may have been Muslim after the Battle of Khaybar. Who is Al-Hajjaj ibn ‘Alat?

Al-Hajjaj ibn ‘Alat al-Sulami had wealth in Makkah while he was still a polytheist. He embraced Islam on the day of Khaybar, and he feared that if the polytheists of Makkah learned of his conversion, they would deny his debts. The Prophet ﷺ gave him permission to lie so he could enter Makkah and collect his wealth. He was not permitted to do more than this such as taking wealth that did not belong to him or attacking the Quraysh. This incident also cannot be used as an evidence to breach an Amān.

The lie Al-Hajjaj told to Quraysh concerned the Prophet ﷺ at the Battle of Khaybar where he said that, “He suffered a defeat the likes of which you have never heard, and his companions were killed in a manner the likes of which you have never heard, and Muhammad was taken prisoner.”[10]

This obviously greatly distressed Al-ʿAbbās. Al-Hajjaj said, “When I had finished gathering everything I owned in Makkah and was ready to leave, I met Al-ʿAbbās and said, “Remember what I say, Abu al-Fadl, for I fear being pursued for three days. Then say whatever you wish.” He said: “I will.” I said: “By Allah, I left your nephew as a bridegroom to the daughter of their king, meaning Safiyya bint Huyayy, and he conquered Khaybar and seized all that was in it, and it became his and his companions.”

He said: “What are you saying, Hajjaj?” I said: “Yes, by Allah, so keep it a secret from me. I have embraced Islam and I only came to take my money, fearing that I would be overpowered by it. When three days have passed, reveal your affair, for by Allah it will be as you wish.”

He said: When the third day came, Al-ʿAbbās put on his best clothes and made himself well, and took his staff, then went out until he came to the Kaaba, and circumambulated it. When they saw him, they said: “O Abu al-Fadl, this is by Allah the fortitude for the heat of the calamity.” He said: “No, by Allah by whom you swore, Muhammad conquered Khaybar and left [as a bridegroom] to the daughter of their king, and seized their wealth and all that was in it, so it became his and his companions.”

They said: “Who brought you this news?” He said: “The one who brought you what he brought, and he entered upon you as a Muslim, and took his money, and set off to join Muhammad and his companions, and be with him.”

They said: “O servants of Allah! The enemy of Allah has escaped. By Allah, if we had known, we would have had something to do with him.” He said: “And it was not long before the news of that [Khaybar’s defeat] came to them.”[11]

Therefore Al-ʿAbbās kept Al-Hajjaj’s secret and didn’t reveal the truth for three days, that the Muslims had won a great victory at Khaybar. The fact that Al-ʿAbbās kept Al-Hajjaj’s secret is not evidence that he was Muslim at this time. Al-ʿAbbās had already kept the great secret of the Second Pledge of Al-Aqaba and he certainly was not Muslim at that time.

In terms of the fiqh surrounding this story, why was Al-Hajjaj allowed to lie when its clearly established from the hadith that lying is only permitted in three instances? Umm Kulthum bint ‘Uqbah said, “I never heard him [Prophet ﷺ] giving permission of lying in anything except in three: war, reconciling between people, and the conversation of the man with his wife, and the conversation of a woman with her husband.”[12]

According to Taqiuddin Al-Nabhani (d.1977), Al-Hajjaj was allowed to lie because Makkah was Dar Al-Harb Fi’lan, meaning a land of active war. He says, “As for what Ahmad and An-Nisai narrated from the tale of Al-Hajjaj bin ‘llat in his seeking permission to say about him whatever he wished for his benefit in rescuing his property from the people of Makkah. The Prophet ﷺ gave him permission and he informed the people of Makkah that Khaybar had defeated the Muslims; this also enters into the situation of war because the people of Makkah were in a situation of active war with the Muslims. Al-Hajjaj bin ‘Ilat was from the Muslims and he was going to the enemy disbelievers who were in the situation of active war, so lying was allowed against them.”[13]

The Sheikh is mistaken here because Makkah at this time was not in active war with the Muslims, because this event occurred after the Treaty of Hudaibiyah. Rather, his lying was a dispensation (rukhsa) similar to what the Messenger of Allah ﷺ granted to Hind, the wife of Abu Sufyan. Hind took her husband’s wealth without permission because he was stingy and not providing enough for her care.

It was narrated that ‘Aishah said: Hind came to the Prophet ﷺ and said: “O Messenger of Allah, Abu Sufyan is a stingy man and he does not give me enough for me and my child, except for what I take from his wealth without him realizing.” He said: خُذِيمَايَكْفِيكِ وَوَلَدَكِ بِالْمَعْرُوفِ “Take what is sufficient for you and your child, on a reasonable basis.”[14]

The general principle is that a woman is not permitted to steal from her husband’s wealth, or take from it without his knowledge if he does not give her permission. However, if a man withholds sufficient maintenance from his wife and children, they have a right to it according to what is customary (بِالْمَعْرُوفِ) among people of their status. These dispensations are not specific to al-Hajjaj or Hind, but are general for all Muslims.

To reiterate the point, this is not an evidence that someone can lie in order to cheat, commit criminal behaviour or breach an Amān.

Nu’aym ibn Abdullah remained living as a Muslim in Makkah

Nu’aym ibn Abdullah stayed in Makkah as a Muslim until the 6^th year of the Hijra during the time of the Hudaibiyah treaty, protected by his tribe Banu Adi ibn Ka’b. Nu’aym used to provide for the poor of his tribe each month.[15]

Ibn Sa’d narrates that “[Nu’aym ibn Abdullah] remained in Makkah, surrounded by his people because of his high standing among them. When the Muslims migrated to Medina, he wanted to emigrate as well, but his people clung to him, saying, “Adhere to whatever religion you wish and stay with us.” So he stayed in Makkah until the sixth year (of the Hijra), when he migrated to Medina with forty of his family. He came to the Messenger of Allah ﷺ as a Muslim, and the Prophet embraced and kissed him.”[16]

The Prophet ﷺ said to him: “Your people were better to you than my people to me. My people forced me to leave and wanted to kill me, while your people protected you and prevented (harm from reaching) you.” He said: “O Messenger of Allah, rather your people forced you to leave to the obedience of Allah and fighting His enemies, but my people hindered me from emigration and the obedience of Allah.”[17]

Nu’aym never spied on Quraysh, or informed the Prophet ﷺ of events in Makkah.

Muslims are not a fifth column

Only Allah knows the exact time of Al-ʿAbbās’s conversion. What is important in this discussion is that it’s not used as an evidence to justify treachery by those who look back to the Islamic evidences in an attempt to justify their criminal activities.

Muslims living in non-Muslim countries are not a ‘fifth column’ who will become the future caliph’s spies, providing sensitive and secret information to the caliph, or worse still undertaking subversive and disruptive activities to undermine the country they abide in.

The role of the Islamic activists will be to clarify the inevitable lies and distortions that will be thrown at the caliphate and sharia. These activities are simply a continuance of what is occurring today where mainstream media and politicians peddle lie after lie against the religion.

The activities of the Muslim converts of the early 20^th century – Abdullah Quilliam and Marmaduke Pickthall – are good examples of how Muslims would conduct themselves in a period where the caliphate is in existence. Letter writing, speeches, magazines, forming associations, lobbying government, and all forms of media were utilised by them to promote their message.

Anne Fremantle (d.2002) who wrote a biography on Marmaduke Pickthall called ‘Loyal Enemy’ says, “Marmaduke was helplessly in England most of this time, trying frantically to rally such elements in England as were pro-Turk. Himself a Disraelite Tory[18], he clung to such men as Aubrey Herbert, who shared his views, and who, being in Parliament, could give tongue to them. Marmaduke plagued all the politicians he could, wrote in whatever papers would take his stuff.”^[19]

Before he formally accepted Islam,[20] “Marmaduke and a few friends together founded, in the early autumn of 1913, the Anglo-Ottoman Society ‘to advocate a political and commercial understanding between Great Britain and Turkey and firmly to oppose encroachment on the Ottoman Empire.’”^[21]

Even though they used perfectly legal means to speak about Islam and defend the Ottoman Caliphate, Abdullah Quilliam and Marmaduke Pickthall were still seen as ‘traitors’ by some in the media and parliament, and British intelligence was monitoring them. This will always be the case if someone is speaking against the status quo as we saw in the Makkan phase of the da’wah. Allah (Most High) says,

يُريدونَ لِيُطفِئوا نورَ اللَّهِ بِأَفواهِهِم وَاللَّهُ مُتِمُّ نورِهِ وَلَو كَرِهَ الكافِرونَ

They desire to extinguish Allah’s Light with their mouths but Allah will perfect His Light, though the disbelievers hate it.[22]

Despite this the da’wah needs to continue in accordance with the Islamic method of preaching outlined in the Qur’an. Allah (Most High) says,

ٱدْعُ إِلَىٰ سَبِيلِ رَبِّكَ بِٱلْحِكْمَةِ وَٱلْمَوْعِظَةِ ٱلْحَسَنَةِ ۖ وَجَـٰدِلْهُم بِٱلَّتِى هِىَ أَحْسَنُ ۚ إِنَّ رَبَّكَ هُوَ أَعْلَمُ بِمَن ضَلَّ عَن سَبِيلِهِۦ ۖ وَهُوَ أَعْلَمُ بِٱلْمُهْتَدِينَ

Invite ˹all˺ to the Way of your Lord with wisdom and kind advice, and only debate with them in the best manner. Surely your Lord ˹alone˺ knows best who has strayed from His Way and who is ˹rightly˺ guided.^[23]

Notes

[1] Holy Qur’an, Surah Al-Hadid, ayah 10

[2] Muhammad Khalid Khalid, ‘Men Around the Messenger’

[3] Not all of the Aws and Khazraj tribes had converted at this time.

[4] Yasir Qadhi, ‘The Sirah of the Prophet ﷺ,’ The Islamic Foundation, 2023, The Battle of Badr

[5] Ibid

[6] Yasir Qadhi, ‘The Sirah of the Prophet ﷺ,’ The Islamic Foundation, 2023, The Battle of Uḥud

[7] Yasir Qadhi, ‘The Sirah of the Prophet ﷺ,’ The Islamic Foundation, 2023, The Final Emigrant; Ibn Hisham, https://shamela.ws/book/23833/1137

[8] Yasir Qadhi, ‘The Sirah of the Prophet ﷺ,’ The Islamic Foundation, 2023, The Final Emigrant

[9] Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī https://shamela.ws/book/1673/3905

[10] Ibn Hisham, https://shamela.ws/book/23833/1082#p1

[11] Ibid

[12] Riyad as-Salihin 249, https://sunnah.com/riyadussalihin:249

[13] Taqiuddin Al-Nabhani, ‘The Islamic Personality,’ translation of Shakhsiya Islamiyya, Vol.2, Fifth Edition, 2003, p.171

[14] Sunan Ibn Majah 2293, https://sunnah.com/ibnmajah:2293

[15] Ibn Sa’d, Tabaqat, https://shamela.ws/book/1686/1249

[16] Ibn Sa’d, Tabaqat, https://shamela.ws/book/1686/1249

[17] https://hadithportal.com/index.php?show=hadith&h_id=2313&uid=0&sharh=31&book=33&bab_id=1485

[18] Disraeli was considered Pro-Turk i.e. Pro Muslim and Ottoman as opposed to Gladstone. “Disraeli, in his speech at the Guildhall dinner as Minister of Foreign Affairs, nearly thirty years before, declared Turkey to be our essential ally against Russian imperialistic ambition, the neutral focus of all our Eastern policy. And his policy was not new. The Russian menace had already alarmed Palmerston, who declared categorically that the only chance of fair treatment for all the peoples dwelling in the Ottoman Empire lay in our support of an enlightened Turkish Government. Disraeli was a seer ; his successors mere opportunists. For the seer, even a century seems no great while to wait : there was only one generation between Disraeli and the Turkish Revolution which justified his policy.” [Anne Fremantle, ‘Loyal Enemy,’ Hutchinson & Co (Publishers) Ltd. London, 1938, p.180]

[19] Anne Fremantle, ‘Loyal Enemy,’ Hutchinson & Co (Publishers) Ltd. London, 1938, p.188

[20] He converted in 1917

[21] Ibid, p.228

[22] Holy Qur’an, Surah Saff, verse 8

[23] Holy Qur’an, Surah Al-Nahl, verse 125

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.

1. Citizenship and residency visas are valid Islamic Contracts
2. Caliph cannot order treachery
3. Notes

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