The study of this issue entails dealing with the following points:
1) The opinions found within Islamic Fiqh about the matters that invalidate the ‘Ahd.
2) What are the consequences of the invalidation of the ‘Ahd?
3) Is the invalidation of the ‘Ahd specific to those involved or does its ruling spread beyond them?
And in order for this study to treat current day problems we will also discuss two further points:
4) What is the Hukm of the Ahlu-dh-Dhimmah after the disappearance of the Islamic State?
5) What is the ruling of the Khurooj (exiting) of the Ahlu-dh-Dhimmah from that which their predecessors agreed to in their ‘Ahd at the time of the Islamic conquest?
1. The opinions found within Islamic Fiqh about the matters that invalidate the ‘Ahd.
We have noticed that in Islamic Fiqh there are three main approaches in regards to the matters that invalidate the ‘Ahd which are the wide approach, the middle approach and the narrow approach.
As for the wide approach in relation to what invalidates the ‘Ahd then we find them mentioned in the Hanbali Fiqh books. Ibn ul-Qayyim listed in ‘Ahkaam Ahlu-dh-Dhimmah’ eight matters that it’s obligatory for the Ahlu-dh-Dhimmah to abstain from, which bring harm upon the Muslims and they relate to the person and property. These are:
1) Assisting the fighting against the Muslims.
2) The killing of a Muslim or Muslimah.
3) The cutting of paths against them (i.e. highway robbery).
4) Harbouring (lodging) spies.
5) Aiding the disbelievers with news against the Muslims in writing or by indication.
6) Committing Zinaa (adultery, fornication) with a Muslimah.
7) The afflicting of a Muslimah in the name of Nikaah (marriage).
8) To tempt a Muslim away from his Deen.
Ibn ul-Qayyim then reports the following from Al-Qaadi Abu Ya’laa Al-Farraa from his book ‘Al-Mujarrad’:
“It is a duty upon him (the Dhimmi) to abstain from this if has been stipulated or has not been stipulated and if he violates them, then he has invalidated his ‘Ahd.” (Ahkaam Alhu-dh-Dhimmah, Ibn ul-Qayyim 797/2)
Ibn –ul-Qayyim then mentions that he attached to the eight matters that invalidate the ‘Ahd and also without stipulations, four matters which are:
1) The Mention of Allah ‘Azza Wa Jalla,
2) or the mention of His Book,
3) or the mention of His Deen,
4) or the mention of His Messenger صلى الله عليه وسلم,
in a manner that is not proper.
If they refuse to abide by one of these then they invalidate their Amaan (security) whether this was stipulated as a condition in the ‘Ahd or it wasn’t stipulated.
Ibn –ul-Qayyim then mentions that Al-Qaadi Abu Ya’laa Al-Faraa has three books in the Hanbali Fiqh which are: ‘At-Ta’leeq’, ‘Al-Khilaaf’ and ‘Al-Mujarrad’ and he mentioned in all of them the invalidation of the ‘Ahd by these acts and statements.
Finally, Ibn ul-Qayyim explains a report in the Hanbali Fiqh, although it is Da’eef (weak) that nothing invalidates the ‘Ahd except abstaining from paying the Jizyah and the application of the Islamic rules upon them. (Ahkaam Alhu-dh-Dhimmah, Ibn ul-Qayyim 798/2)
This is the wide approach in relation to the matters that invalidate the ‘Ahd.
There is the middle approach and it is represented by what came in Shaafi’iy Fiqh.
An-Nawawi presented in his book ‘Minhaaj At-Taalibeen’ the matters that are obligatory for the Ahlu-dh-Dhimmah to abstain from such as: Making new Churches, raising the buildings of the Ahlu-dh-Dhimmah higher than those of the Muslims that are near them, riding horses and precious mules and then Imaam An-Nawawi said:
“And if these matters were stipulated as conditions and then they violate them, the ‘Ahd has not been invalidated… And if they fight us, or abstain from the payment of the Jizyah or the application of the Islamic rule upon them then they have invalidated the ‘Ahd. And if they commit Zinaa with a Muslimah (woman), or use derogatory terms against Islaam or the Qur’aan or make mention of the Messenger of Allah صلى الله عليه وسلم in a bad, insulting (or abusive) manner then the most correct view is that if the ‘Ahd has stipulated these acts then the ‘Ahd is invalidated and if it did not stipulate them then the ‘Ahd is not invalidated.” (Mugni Al-Muhtaaj with the Sharh of Al-Minhaaj of Al-Khateeb Ash-Sherbeeni 258/4)
This is the middle approach in relation to the matters that invalidate the ‘Ahd (covenant).
Finally, there is the narrow approach in regards to the matters that invalidate the ‘Ahd and these are represented in the Hanafi Fiqh. Al-Kaasaani said the following in ‘Badaa’i As-Sanaa’i’:
“As for the description of the ‘Aqd (i.e. the ‘Aqd (contract) of Dhimmah) it is binding upon us and the Muslims do not possess the right to invalidate it under any circumstances, except when the complete invalidation of the contract occurs by three matters:
Firstly, the Dhimmi becomes Muslim and this is where the Dhimmah was contracted (originally) as a means towards Islaam, so in this case what had been intended had been achieved.
Secondly, the Dhimmi attaches himself to Daar-ul-Harb and if he does this then he is considered in the same manner as a Murtadd (apostate).
Thirdly, the Dhimmi take over a place and make war, because if they do this then they have become the people of war and the ‘Aqd (contract) is invalidated by necessity.
If the Dhimmi abstains from giving Jizyah his ‘Ahd is not invalidated. Similarly if he insulted the Nabi صلى الله عليه وسلم the ‘Ahd is not invalidated because this is an increase of Kufr upon Kufr (disbelief) and the ‘Aqd (contract) remains upon the basis of Kufr and as such remains upon the increase (to the Kufr). This also applies if he kills a Muslim or commits Zinaa with a Muslimah because these are Ma’aasy (sinful disobedient acts) that they commit and they are less than Kufr in terms of abhorrence (Qubh/ugliness) and in terms of Hurmah (level of prohibition) so if the Dhimmah remains intact due to Kufr then by greater reason it remains intact after the Ma’siyah (act of disobedience). And Allah knows best.” (Badaa’i As-Sanaa’i of Al-Kaasaaniy)
This is what has come in the writings of Islamic Fiqh in regards to the matters that cause the invalidation of the Ahlu-dh-Dhimmah’s covenant (‘Ahd) by their action. Our purpose here in this study is not to outweigh between these different approaches or to adopt specific opinions from them and make deductions upon them. Rather the purpose is, that if the Ahlu-dh-Dhimmah invalidate their ‘Ahd in accordance to any approach (or Ijtihaad) that the Islamic State adopts in respect to those matters that invalidate the ‘Ahd, then in this case is it legitimate to launch war against them? This is what we are aiming at and this is also the subject of the second point which is:
2. What are the consequences resulting from the invalidation (breaching) of the ‘Ahd?
The answer to this question differs according to the difference in the types of violations committed that breach (invalidate) the ‘Ahd.
The breaching could be due to the Ahlu-dh-Dhimmah carrying arms against the Muslims, and the breaching of the ‘Ahd could be caused by reasons other than that.
As for the breaching of the ‘Ahd due to carrying arms against the Muslims (in the most extreme case) then the Hukm in this case is: Those who are carrying weapons are considered Harbiyoon (people making war) and it is obligatory to confront them by Al-Qitaal (fighting) just as we would confront the warring enemies when they make an attack against the Muslims.
An-Nawawi mentioned his ‘Al-Minhaaj’: “And whoever invalidates (Naqd) his ‘Ahd with Al-Qitaal then it is permitted to repel him and kill him.”
In ‘Mughni Al-Muhtaaj’ as a commentary upon this above statement the following was stated:
“‘Take notice’ his expression of permissibility (seems to) dictate that it is not obligatory but this is not intended as it is Waajib (obligatory) and it has been mentioned already that Al-Jihaad when a group from Ahlu-l-Harb (people of war) enters Daar-ul-Islaam is Fard ‘Ain and there is no difference between this and those who had a Dhimmah and then invalidated it. The following was mentioned in ‘Ar-Rawdah’ (a book of An-Nawawi): It is necessary to repel them and strive to eradicate (remove) them.” (Mughni Al-Muhtaaj Sharh Al-Minhaaj by Ash-Sharabeeni 259/4)
The taking up of arms by the Ahlu-dh-Dhimmah against the Muslims can occur in a number of circumstances and in each the ruling differs as follows:
1) The Ahlu-dh-Dhimmah could take up arms against the Muslims in participation with the Ahlu-l-Baghi who are rebelling against the Islamic authority and in relation to the Hukm for this case An-Nawawi mentioned the following in ‘Al-Minhaaj’:
“And if the Ahlu-dh-Dhimmah assists them (i.e. the Ahlu-l-Baghi) and they are aware of the Tahreem (prohibition) of fighting us then their ‘Ahd is invalidated or they have been compelled in which case they have not. This is if they say: We thought that it was permissible or that they were on the Haqq (i.e. just cause), upon the Madh’hab, and they fight like Bughaat (rebels).” (Mughni Al-Muhtaaj Sharh Al-Minhaaj by Ash-Sharabeeni 128-129/4).
This means the participating of the Ahlu-dh-Dhimmah with the Muslim Bughaat (rebels) by taking up arms against the people of ‘Adl (justice) from amongst the Muslims is considered an invalidation of the ‘Ahd. So they are fought like warring people except in specific cases in which case they are treated like the Bughaat (Muslim rebels) i.e. where the fighting is performed to discipline them and it is not like the fighting against the people of war (Ahl-ul-Harb). These cases are:
a) If the rebelling Muslims compel the Ahlu-dh-Dhimmah to participate along with them in the Qitaal.
b) If the Ahlu-dh-Dhimmah fighting with the Muslim rebels believed that it was permitted for them to fight according to the Islamic rule and not Haraam.
c) If the Ahlu-dh-Dhimmah fighting with the Muslim rebels believed that the Haqq (truth/just cause) was with the Muslim rebels who had gone out against the Sultah (authority).
In ‘Ash-Arh Al-Kabeer’ of Ad-Dardeer, another case from amongst the circumstances of the participation of the Ahlu-dh-Dhimmah with the Muslim rebels in Al-Qitaal, in which the participation is not considered an invalidation of the ‘Ahd is:
“If the Imaam whom the rebels have gone out against in rebellion is not ‘Adl (just) due to Fisq (disobedient behaviour) or Zhulm/oppression.” (The commentary of Ad-Dusooqiy upon Ash-Sharh Al-Kabeer of Ad-Dardeer 299-300/4).
This is where the rebelling of the Buhgaat against this type of Imaam is not permitted according to the Shar’a as has been explained in the previous study. Rather it is obligatory upon the Muslims to deny/reject (Inkaar) it by means of exhortation and not by means of Khurooj (rebellion).
This is what relates to the first case from amongst the cases of the Ahlu-dh-Dhimmah taking up arms against the Muslims which is their participation in Al-Qitaal with the Ahl-ul-Bughaat (Rebelling Muslims).
2) The Ahlu-dh-Dhimmah could take up weapons against the Bughaat from the Muslims to give their support to the Islamic authority and in this case their ‘Ahd is not invalidated by the fighting. It was mentioned in ‘Al-Mihaaj’ of An-Nawawi: “And if the Ahlu-dh-Dhimmah fight the Ahl-ul-Baghi (rebels against the Islamic authority) their ‘Ahd is not invalidated accorded to the correct view because they are making war against those whom it is necessary for the Imaam to make war against.” (Mughni Al-Muhtaaj Sharh Al-Minhaaj of Ash-Sharabeeni 253/4)
3) The Ahlu-dh-Dhimmah could take up arms against the Muslims in cutting the paths (Qat’i At-Tareeq) and the majority of the Fuqahaa do not consider this as invalidating the ‘Ahd but rather they are judged according to the Hukm of the crime that the Muslims are judged by (Mughni Ibn Qudaamah 319/10/4) The Ahlu-dh-Dhimmah could take up arms against the Muslims in an independent manner i.e. without participating with Al-Bughaat (rebels) or the Ahl-ul-Harb (people of war). In this case their ‘Ahd is invalidated and they are fought in the same way the Ahl-ul-Harb are fought according to the majority of the Fuqahaa (Mughni Ibn Qudaamah 708/10, Mughni Al-Muhtaaj 129/4, The commentary of Ad-Dusookiy upon Ash-Sharh Al-Kabeer 204/2, Badaa’i As-Sanaa’i 112-113/7).
Although it has been reported in the Maalikiy Madh’hab that if they go out (against the authority) (i.e. take up arms) due to the reason of oppression befalling them then this is not an invalidation of their ‘Ahd. It was mentioned in the book: ‘Qawaaneen Al-Ahkaam Ash-Shar’iyah’: “And if they go out against the authority without there being oppression or violence then they are taken as slaves and if they go out due to oppression or violence then they are not enslaved.” (176)
Although enslaving was mentioned above, it does not intend the enslaving from amongst the Maaliki rules (related to the captured/defeated enemy) which are: Killing, letting free, ransoming, enslaving or making a new Dhimmah contract. Rather what is intended by enslaving above is considering them as having invalidated the ‘Ahd if they go out against the Islamic authority without being oppressed or afflicted by violence whilst considering them as not invalidating the ‘Ahd due to them rebelling for reasons of oppression befalling them. Just as this is understood from the ‘Sharh Al-Kabeer’ of Ad-Dardeer.
4) The Ahlu-dh-Dhimmah could take up arms against the Muslims in participation with the Ahlu-l-Harb (people of war) and in the case their ‘Ahd is invalidated and they are fought as the Ahl-ul-Harb are fought (Al-Mughni of Ibn Qudaamah 608/10).
In any case, when the Qitaal (fighting) of the Ahlu-dh-Dhimmah against the Muslims is from the kind that invalidates their ‘Ahd, and the Muslims fight them in the fighting of war and people are killed in these battles and the Muslims prevail over those who remain (i.e. not killed), then what is the Hukm in this case in relation to those who remain?
Ibn Qudaamah stated in Al-Mughni: “And those whom we have judged to have invalidated the ‘Ahd then the Imaam has a choice in respect to them between four matters: To kill, to enslave, to ransom or to let them go free, just like the Harbi captive prisoner because he is a Kaafir that we have evaluated to be without a ‘Ahd or ‘Aqd (contract) within our land (Daar) or what is similar and he is like the Harb thief.” (Al-Mughni Ibn Qudaamah 609/10).
In the Fiqh of the Maalikiy Madh’hab there is a fifth opinion in addition to the above four choices and that is to put the Jizyah upon them i.e. to resume the ‘Aqd (contract) of Adh-Dhimmah and then take the Jizyah from him as a consequence of that (Sharh Al-Kabeer of Ad-Dardeer 184 and 205/4).
It is considered as an invalidation of the ‘Ahd by this reason also i.e. the reason of fighting in every case where the Ahlu-dh-Dhimmah abstains from submitting to the Islamic rule amongst themselves. It was mentioned in Al-Mughni: “In every situation that we have said in which the Dhimmi has not invalidated his ‘Ahd then if he has committed an act deserving a Hadd (prescribed set punishment) then the Hadd is established upon him or its Qisaas. If the Hadd is not obliged then he is punished by Ta’zeer (a discretionary punishment) and so it is done to him that which is done to the like of him. So if anyone of them wishes to do that, then he is refrained from and if he prevents it by fighting then his ‘Ahd is invalidated.” (Al-Mughni Ibn Qudaamah 609/10)
All of what has preceded relates to the ‘Ahd being invalidated due to the reason of the Ahlu-dh-Dhimmah fighting against the Muslims. However, if the ‘Ahd was invalidated for another reason other than fighting then there are two opinions in regards to this issue:
1) The opinion that states the Imaam makes the decision in regards to them between four choices which were mentioned earlier in regards to the invalidation of the ‘Ahd for the reason of Al-Qitaal (fighting).
2) Another opinion is that they should be expelled from Daar ul-Islaam. The following was mentioned in ‘Al-Ahkaam As-Sultaaniyah’ of Al-Maawardi: “And if the Ahlu-dh-Dhimmah breach their ‘Ahd it is not made permissible to kill them, take their wealth (properties) as booty or take them as slaves (of war) as long as they have not fought. It is obligatory to expel them from the Muslim lands in peace (security) until they reach a secure place within the lands of Shirk (i.e. disbelievers) and if they do not leave willingly then they are removed forcefully.” (Al-Ahkaam As-Sultaaniyyah of Al-Maawardi 146)
In today’s language this means the withdrawal of their citizenship and deporting them to the nearest state from amongst the nearest non-Islamic states that will accept them.
This is what has been said in regards to that which we have seen to be necessary in regards to the second point in this issue which is: That which results from the breaching of the ‘Ahd.
3. Is the invalidation of the ‘Ahd specific to the one who committed the act that led to its invalidation or does the Hukm go beyond him to other than him?
The Asl (original position) is that the invalidation of the ‘Ahd is specified to the one who invalidates (breaches) the ‘Ahd. So whoever participates with the Ahl-ul-Harb in fighting against the Muslims is considered alone to have breached the ‘Ahd whilst his people or tribe are not considered to have done this. If a group from among the Ahlu-dh-Dhimmah break away in disobedience to obedience (to the authority) and take up arms against the Islamic authority then the breaching of the ‘Ahd is confined to them alone and it does not include their families and people.
Yes, if it is found that the remaining Ahlu-dh-Dhimmah are content (pleased) with what their fighting brothers have done then the Hukm of breaching the ‘Ahd is extended to cover all those that were content with the rebellion and disobedience.
The following was mentioned in ‘Al-Ahkaam As-Sultaaniyyah’ of Al-Faraa: “When the Ahlu-dh-Dhimmah and ‘Ahd came out fighting the Muslims, then they were considered a war in their time and their fighters were killed” and in the commentary of this book: “Al-Maawardi said: And the situations of other than the fighters were considered according to their acceptance or rejection” (Al-Ahkaam As-Sultaaniyyah of Al-Faraa: 145 and this is a text of Al-Maawardi in his Al-Ahkaam As-Sultaaniyyah 146).
Which means if other than the fighters are content (pleased/accepting) with the breaching of the ‘Ahd then they are attached with the fighters in terms of the Hukm. If they reject what the fighters have done then those who remain having not participated in the fighting preserve their status as being Ahlu-dh-Dhimmah.
The following was mentioned in ‘As-Sabeel Al-Jarraar’ of Ash-Shawkaani:
“And their ‘Ahd is invalidated and considered as a breach for all of them or some of them if the remainder do not differ in word or deed…. This invalidation of their ‘Ahd if it is from all of them is a clear matter. If however it was from some of them then it isn’t upon the others except for those who have differed with them… And if they did not do this then their mere mixing (with the people) does not invalidate the ‘Ahd of those who did not breach it unless a contentment (acceptance) for this invalidating or breaching act was expressed by them and their agreement with those who broke the ‘Ahd.” (As-Sabeel Al-Jarraar, Ash-Shawkaani 573-575/4)
All of this relates to mature (Baaligh) men who have broken the ‘Ahd. As for women who breach their ‘Ahd and their children then An-Nawawi has outweighed that the invalidation of immunity in regards to the men does not extend to the women and offspring. He said in ‘Al-Minhaaj’: “If the security (Amaan) of the men is invalidated, the Amaan of the women and children is not invalidated according to what is most correct.” (Mughni Al-Muhtaaj Sharh Al-Minhaaj, 259/4)
To be continued in Part 3…
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)