Introduction
My intention in this introduction is to discuss the subject of citizens from amongst the Ahlu-dh-Dhimmah resorting to carrying arms against the Muslims for one reason or another, followed by the breaking out of fighting between the two sides. Is this fighting from the perspective of the Muslims considered to be from Al-Jihaad in the way of Allah or not?
And in the forthcoming studies of this paper we will deal with a number of issues related to the Ahlu-dh-Dhimmah and some details of their Ahkaam (rulings) in regards to that which is connected to the subject of this paper (i.e. PHD).
Here in this current study, based upon what we have intended in the introduction it has become necessary for us to define the issues that we must discuss in order to deal with this subject.
The Muslim Fuqahaa when they discussed the Ahlu-dh-Dhimmah studied the subject of those matters that breach the ‘Ahd (covenant). They mentioned the violations that the Ahlu-dh-Dhimmah commit, that which breaches the ‘Ahd and that which does not, whilst explaining the Hukm for each of these two cases. That which connects to our subject is the breaching violations of the ‘Ahd that have a relationship with Al-Qitaal (fighting).
The reality of Al-Qitaal is that it is fighting between two sides each of which has a power or force with which it fights and by which it moves and attacks. Based upon this the Dhimmi who afflicts a Muslimah through marriage or Zinaa does not enter into the scope of our study, nor does the Dhimmi who has insulted the Messenger of Allah صلى الله عليه وسلم or spied upon the Muslims. None of these are part of the study on what constitutes breaching the ‘Ahd. This is because these violations and their like are violations upon which the Hukm Ash-Shar’i is applied upon its perpetrator whether we have said that this breaches the ‘Ahd on the individual level or if we have not said that. So that which is included in our study here is only that which has a relationship with the breaching of the ‘Ahd (covenant/contract of Dhimmah) from a group or party of the Ahlu-dh-Dhimmah in a land from amongst the Muslims lands in the situation where they possess power and force and they refrain from submitting to the authority of the Islamic State, and in relation to implementing the Hukm Ash-Shar’i that results from and is consequential to these violations. In this situation it is necessary to resolve and deal with this rebellion that has come from citizens who possess force and power from amongst the Ahlu-dh-Dhimmah whether they are the ones who have started the fighting upon the basis of refraining from submission to the authority of the state, or they are responding to the fighting in the case where the State has used force to make them submit to its authority.
Therefore is this Qitaal (fighting) employed to deal with this rebellion launched by the Ahlu-dh-Dhimmah considered to be Al-Jihaad Fee Sabeelillah according to its Istilaahi (Shar’i terminological) meaning or not? This is the subject of this study and as such it is necessary to deal with this subject to investigate the following issues:
PART 1: Who are the Ahlu-dh-Dhimmah, what are their Waajibaat (obligations) and their Huqooq (rights)?
PART 2: What are the violations that cause them to be in breach of the ‘Ahd (covenant) in a collective manner and what is the Hukm Ash-Shar’iy that results from that?
PART 3: Is fighting the Ahlu-dh-Dhimmah who have breached their covenant considered to be Al-Jihaad in the way of Allah according to its Istilaahi (terminological) meaning?
The first issue: Who are the people of Ahlu-Dh-Dhimmah? What are their obligations? And what are their rights?
1. The definition of Ahlu-dh-Dhimmah
Ibn ul-Qayyim defined the Ahlu-dh-Dhimmah in his presentation of the different categories of Kuffaar (disbelievers) just as he defined each of those who have an ‘Ahd (covenant) from amongst the disbelievers and this was so as to distinguish the Ahlu-dh-Dhimmah from other than them. He said:
“The disbelievers: They are either Ahlu-l-Harb (the people at war) or Ahlu ‘Ahd (the people of covenant). And the Ahl-ul-‘Ahd are of three categories: Ahlu Dhimmah, Ahlu Hudnah (peace/truce) and Ahlu Amaan (security)…
The Lafzh (wording): ‘Dhimmah and Al-‘Ahd’ encompasses all of them in origin as Adh-Dhimmah is a type from the kind (Jins) of the wording Al-‘Ahd and Al-‘Aqd (contract). However many of the Fuqahaa began to use ‘Ahlu-dh-Dhimmah’ in Istilaah (terminology) as an expression referring to those who pay the Jizyah and these have a life-long (permanent) Dhimmah. They are those who have entered into a covenant (contract) with the Muslims on the basis of the Hukm of Allah سبحانه وتعالى and His Messenger صلى الله عليه وسلم being applied upon them in the case where they are residing in the Daar (land) in which the Hukm of Allah and His Messenger is applied.
This is in contrast to the Ahlu-l-Hudnah as they have made a treaty (Sulh) with the Muslims on the basis that they be in their own land whether this Sulh (treaty) was attached to the payment of money or other than money. The Ahkaam of Al-Islaam are not applied upon them like the case of the Ahlu-dh-Dhimmah. However, they are obliged to refrain from making war with the Muslims and they are named: ‘Ahlu-l-‘Ahd’ (the people of covenant), Ahlu-s-Sulh (the people of (peace) treaty) and Ahlu-l-Hudnah (people of truce).
As for the Musta’min (one who has been given security), he is the one who comes to the Muslim lands without settling down and there are four types within this category: Messengers, traders, the Mustajeer until they have been shown Islaam and the Qur’aan and thereafter they can choose whether to enter into the land or return to their land and the one who is seeking to fulfil a need like the one visiting or the like.
The Hukm of these is that they are not made to emigrate, they are not fought and Jizyah is not taken from them. If Islaam and the Qur’aan has been presented to the Mustajeer and he enters (into Islaam) then he has that and if he wishes to be escorted to a place of safety he is escorted there and if it has not been presented to him before his arrival to it, then when he reaches his place of safety he once again becomes a Harbi as he had been before (i.e. before coming into Daar-ul-Islaam).” (Ahkaam Adh-Dhimmah Ibn ul-Qayyim 475/2).
The above is what Ibn ul-Qayyim said in regards to defining the different categories of disbelievers. We presented all of what he said and did not restrict ourselves to his definition of the Ahlu-dh-Dhimmah alone because he provided us with a complete picture about the Hukm of every category of disbeliever. This is in terms of the relationship between them and the Muslims which allows us to see the difference between the Ahlu-dh-Dhimmah and other than them.
So Ahlu-dh-Dhimmah are: non-Muslim Muwaatineen (citizens) who live with the Muslims in Daar-ul-Islaam, who pay the Jizyah and they submit to the Islamic Ahkaam (rules) in other than what they have in terms of the rules of beliefs, worships, marriage, divorce, foodstuffs and dress (This is according to: Al-Umm of Ash-Shaafi’i 213/4, Tafsser Ibn Katheer 518/3, Seerah Ibn Hishaam 254/4, Al-Amwaal of Abu ‘Ubaid p23). And they are considered like the Jews and Christians who live in the Islamic lands.
In this way they are distinguished from the Ahlu-l-Hudnah who are non-citizen Kuffaar who have a Mu’aahadah (treaty) between their states and the Islamic State which stipulates the cessation of the state of war between them whether these agreements include other matters within them or not. So these are named, Ahlu-l-Hudnah or Ahlu-l-Muwaada’ah. They are considered as such whether they are in their own lands or they have entered into the Islamic lands according to the Hukm (ruling) of the Hudnah in the case where the Mu’aahadah (treaty) has permitted the movement of people between these two states.
In accordance to the comprehensive definition of Ibn ul-Qayyim the Ahlu-dh-Dhimmah are distinguished also from the Ahl-ul-Amaan (the people given security). The latter are individuals from other states that are not Islamic. They enter the land in security (safety) which is specific to every individual from among them and this is called in today’s age an ‘Entry Visa’ which is permitted for any purpose amongst the purposes mentioned by Ibn ul-Qayyim.
Now after we have defined the Ahlu-dh-Dhimmah and distinguished between them and others including the Ahlu-l-Harb, Ahlu-l-Hudnah or Ahlu-l-Amaan, we now come to the following point in this Mas’alah (issue) which is:
2. What are the Waajibaat (obligations) of the Ahlu-dh-Dhimmah?
As for their obligations from a general perspective, Ibn Qudaamah listed these obligations in his ‘Al-Mughni’ and it is possible to place them in five categories:
1) That which the ‘Aqd (contract) of Adh-Dhimmah is not completed without its mention, and there are two matters: Commitment to the Jizyah and the application of the Ahkaam of the people of Islaam upon them.
2) To leave that which is harmful to the Muslims and their property like aggressing against the Muslims by striking or looting.
3) To avoid that which is derogatory against the Muslims like making remarks about Islaam, the Qur’aan or the Messenger صلى الله عليه وسلم in an improper manner.
4) To avoid displaying that which is a Munkar like drinking alcohol in public places of the Muslims.
5) Distinguishing themselves from the Muslims with a specific sign that they are recognised by which could be in their clothing or something else (Al-Mughni Ibn Qudaamah 706-718/10).
For each of the above there are branches, details and differences between the Fuqahaa upon the necessity of stipulating them as conditions although now is not the time to mention them. This is what is said in regards to the obligations of the Ahlu-dh-Dhimmah.
3. What are the Huqooq (rights) of the Ahlu-dh-Dhimmah?
The Fuqahaa were extensive in regards to their discussion about these rights and we will now present from the Fiqhi sources some of the texts that are related to this point.
Al-Maawardi in ‘Al-Ahkaam As-Sultaaniyah’ in regards to what is obligatory upon the Imaam who has convened the contract of Dhimmah with them upon the basis of their payment of the Jizyah, said the following:
“And two rights become binding upon him when they pay it (i.e. the Jizyah). Firstly, to refrain from them (i.e. fighting etc…). Secondly, to protect them. So that by refraining they are secure and safe and by the protection they are guarded.”
Naafi’ related from Ibn ‘Umar (ra): It was from the last of what the Nabi صلى الله عليه وسلم spoke about when he said: “Preserve (keep me well) in regards to my Dhimmah.” (Al-Ahkaam As-Sultaaniyah p143).
It was mentioned in ‘Al-Minhaaj’ of An-Nawawi:
“And it is binding upon us to refrain from them and to guarantee that which we can damage upon them in terms of life and property, and to repel the people of war from them.” (‘Mughni Al-Muhtaaj’ of Al-Khateeb Ash-Sharbeeni 253/4).
It was mentioned in Al-Mughni of Ibn Qudaamah (623/10):
“That it is a duty of the Imaam to protect the Ahlu-dh-Dhimmah from the Muslims, the Ahlu-l-Harb and the Ahlu-dh-Dhimmah…That if the Ahlu-l-Harb (people of war) take control over our Ahlu-dh-Dhimmah and take them as booty and then we find ourselves capable of dealing with them then it is obligatory to return the people of Dhimmah to their Dhimmah and taking them as slaves is not permitted and they must be ransomed whether they were in our protection or not…If the Ahlu-l-Harb took the property from the Ahlu-dh-Dhimmah and we became capable of dealing with them, then it is obligatory to return their property to them. This is because the Hukm of their properties is the same as the property (wealth) of the Muslims in terms of sanctity (hurmah).”
The author of ‘Al-Mughni’ mentioned in regards to this the statement of ‘Ali Ibn Abi Taalib (ra): “They have only given the Jizyah so that their blood would be treated as our blood and their wealth like ours.” (Al-Mughni 497/10)
Similarly it was mentioned in Al-Mughni: “That if a Dhimmi brings to life a piece of land (i.e. farms it) then it belongs to him. There is no difference between him and the Muslims” (Mughni 150/6)
(Note: There is a different opinion in this Mas’alah and it is the opinion of Ash-Shaafi’iy. Refer to Mughni Al-Muhtaaj 262/2 and Al-Muhadhdhab 429/1).
The following was mentioned in ‘Kitaab Al-Kharaaj’ of Abu Yousuf in his letter (address) to the Ameer Al-Mu’mineen Haroon Ar-Rasheed:
“Abu Yousuf said: O Ameer of the believers , your Nabi and son of your paternal uncle Muhammad صلى الله عليه وسلم made it necessary for you to deal with kindness to the Ahlu Dhimmah, and to grant for them so that they are not oppressed, or harmed or tasked with what is beyond their capabilities, and not to take anything from their wealth (property) except that which is a Haqq (right) that is obligatory to be taken. It has been related from the Messenger صلى الله عليه وسلم that he said: “Whoever oppresses a Mu’aahad (one under covenant) or tasked him beyond his capability then I am his Hajeej (opponent).”
‘Umar Ibn Al-Khattaab (ra) mentioned at the time of his death was: “I give advice to the Khaleefah who follows me with the Dhimmah of the Messenger of Allah صلى الله عليه وسلم to fulfil for them their ‘Ahd (covenant), and to find from behind them and not to burden them beyond their capabilities”… Then Abu Yousuf presented this narration from ‘Umar Ibn Al-Khattaab (ra): “He said: ‘Umar Ibn Naafi’ informed me from Abu Bakr who said: ‘Umar ibn Al-Khattab passed by the door of a people, and there was a beggar begging, an elderly man, with worn out eye sight. So he struck his support from behind him and said: From which of the Ahl-ul-Kitaab are you? He replied: I am Jewish. So he asked: What has made you resort to what you are doing now? He replied: I am begging for the Jizyah, my need and my age. He (the narrator) said: So ‘Umar took him by his hand and went with him to his house and then gave him a small gift (or small amount of money) from something that he had in the house and then sent for the treasurer of the Bait-ul-Maal (treasury) and said: Look at this person and the likes of him, we have not acted fairly, we ate away his youth then let him down badly in his old age: “Verily the Sadaqah is only for the Fuqaraa and Masaakeen…”. The Fuqaraa are the Muslims and this one is from the Masaakeen of the Ahl-ul-Kitaab. He lifted the duty of paying the Jizyah from him and from those similar to him. He (the narrator) said: Abu Bakr said: I witnessed this from ‘Umar and I saw that elderly man!” (Al-Kharaaj of Abu Yousuf p132, 135,136. And the Aayah of Sadaqaat is At-Taubah 60).
The following text was quoted within the book ‘Qawaaneen Al-Ahkaam Ash-Shar’iyah Fee Fiqh Al-Maalikiy’ (The Lawa of the Ahkaam Ash-Sharee’ah according to the Maaliki Fiqh):
“The second issue: In relation to that which is obligatory upon them from us, it is being committed to their settlement in our land except for Jazeerat-ul-‘Arab and this is Al-Hijaaz and Al-Yaman. And for us to desist from them, that we guarantee their lives and property, that we don’t oppose their churches, or alcohol, or pig meat in regards to that which they do not openly display. If they were to go out (against the state) without reasons of oppression or violence then they are made slaves and if they go out for reasons or oppression or violence then they are not enslaved. Ash’hab said: They are not enslaved at all (or in origin)”. (Qawaaneen Al-Ahkaam Ash-Shar’iyah 176)
This is what was mentioned generally in the sources of Islamic Fiqh in regards to what relates to the obligations and rights of the Ahlu-dh-Dhimmah and what concerns us in regards to these is their relationship with the following issue which is: By what is the ‘Ahd of the Ahlu-dh-Dhimmah breached and what could the consequences of the breaking of the ‘Ahd cause in terms of Al-Qitaal (fighting) and this is the main issue of this present study.
To be continued in Part 2…
The above is a draft translation from the book: ‘Al-Jihad wa’l Qital fi as-Siyasa ash-Shar’iyya’ by Sheikh Dr. Muhammad Khayr Haykal. Chapter: The Ninth Study: Fighting the Ahlu-Dhimmah (non-Muslims living under the Islamic protectorate)