PART 4: Can the Ahlu-dh-Dhimmah join the Islamic State’s army and can prisoners of war become Dhimmi?

Is the door open for non-Muslim subjects of the Islamic State (dhimmi) to join the regular army or is their place within the reserve army when the its needed? What is their role in the army?

I say: Built upon what has preceded in regards to outweighing the permissibility to seek assistance from non-Muslims in Al-Qitaal, then it is permitted to utilise them within the Islamic army. However which army – the regular army or the reserve army?

We have known from what has already been discussed, that the regular army in origin is made up from those Muslims who have been made Mukallaf (legally responsible) with Al-Jihaad. As long as the Ahlu-dh-Dhimmah are not from the people of Takleef (legal responsibility) with Al-Jihaad, then the regular army is not the natural place for them if they have a desire to join the fighting. However fighting alongside the Muslims against the enemy has been permitted for them and in the situation where the regular army is considered as an institution (entity) by way of which the enemy is fought according to the best (most effective) way, then based on this it is permitted for them to join with this army for the sake of fulfilling this purpose that it has been permitted for them to do. This is in light of the limits that the Islamic Maslahah (interest) calls for in the nature of the situation.

However, despite this, the most suitable place for non-Muslim subjects in the military arena is not within the regular army but rather it is within the reserve army. This is because this army, the reserve army incorporates within it everyone who is called to fight in the situation when it is required including the Mukallafeen with Al-Jihaad who are not engaged in the military life as well as including those whom Al-Jihaad and Al-Qitaal is permitted from amongst the non-Mukallafeen like women, adolescents and the Ahlu-dh-Dhimmah.

What is the role of the Ahlu-dh-Dhimmah within the army, if they are to be incorporated in it?

In answer to this the matter returns back to the one who possesses the authority and as such he can choose to open for them the arena of actual fighting alongside the Muslim fighters and likewise he can limit the area of their use within the scope of non-fighting military areas like engineering services, provisional and medical services or as spies against the enemy, and that which is similar to these.

Just as the one in authority can also choose to define and limit the scope and the avenues that the non-Muslims can enter through and the avenues that only Muslims can enter through. All of this is in accordance to what the person in authority deems to be the Maslahah in regards to these matters.

Is it permitted to contract the Dhimmah with prisoners from Ahl-ul-Harb (people of war) by making them citizens of the Islamic State where they become Ahlu-dh-Dhimmah, who are subjects of the state like the Muslims where they have what the Muslims have and are obliged by what is obliged upon the Muslims?

In regards to this, the legal legitimacy of contracting the ‘Aqd of Adh-Dhimmah with enemy prisoners is a matter that has been agreed upon by the Madhaahib as follows:

The following was mentioned in ‘Tanweer Al-Absaar’ and its explanation (Sharh) ‘Ad-Durr ul-Mukhtaar’ from the Hanafi Fiqh, in relation to what are the rights of the Imaam in respect to disposing of the prisoners: “And he can kill the prisoners if he wishes if they don’t embrace Islaam, or he can enslave them or leave them to go free in a Dhimmah with us…” (Haashiyah of Ibn ‘Aabideen: 353/3 and refer to Badaa’i As-Sanaa’i: 121/7).

The following was stated in ‘Qawaaneen Al-Ahkaam Ash-Shar’iyah’ of the Maaliki Fiqh in relation to this issue: “As for the men then the Imaam chooses in respect to them between five options: Killing, letting free, ransoming, Al-Jizyah and Al-Istirqaaq (enslavement). And he chooses the most appropriate from amongst these” (Qawaaneen Al-Ahkaam Ash-Shar’iyah, Ibn Juzayy: 166 and refer also to ‘Ash-Sharh Al-Kabeer’ by Ad-Dardeer: 184/2). The meaning of ‘Al-Jizyah’ means contracting the ‘Aqd of Adh-Dhimmah with the male prisoners which is followed naturally by the giving of the Jizyah and the commitment to abide by the Ahkaam (rulings) of Islaam that they are charged with.

It was stated in ‘Al-Muhadh’dhab’ from the Shaafi’iy books: “And the Imaam does not choose in respect to the prisoners their execution, enslavement, freeing or ransoming except in accordance to that which brings benefit to Islaam and the Muslims. So he takes the Maslahah into account and he does not act except in accordance to their benefit (i.e. Islaam and the Muslims). Then if the prisoner wishes to give the Jizyah and requests to be contracted the Dhimmah and he is from those it is permitted to contract the Dhimmah with, then there are two views: Firstly, that it is obligatory for him (the Imaam) to accept it just as if this request came from any non-prisoner and secondly, that it is not obligatory due to what has been confirmed in regards to the existence of choices of execution, enslaving, freeing and ransoming” (Al-Muhadh’dhab, Ash-Sheeraazi, 236/2).

It was stated in ‘Al-Mughni Al-Muhtaaj’: “There is no difference in opinion in respect to the permissibility of accepting that from him and the two different points of view only relate to the issue of obligation alone…It was said in ‘Ash-Shaamil’: And if he offers the Jizyah then it is Haraam to kill him and the Imaam chooses with the options available other than killing just like if he had become Muslim, and Ar-Raafi’iy verified this in the chapter of Al-Jizyah” (Al-Mughni Al-Muhtaaj 228/4 and refer to Fat’h ul-Baari, 152/6).

Ibn Qudaamah from the Hanaabalah said in Al-Mughni: “And if the prisoners from amongst the Ahl-ul-Kitaab ask to be released upon their payment of the Jizyah then this is not permitted in respect to their women and offspring because they have become a Ghaneemah (booty) by way of As-Saby (enslaving). As for the men, this is permitted for them and the (other) options are still established in regards to them. And the Shaafi’iyeen said: It is Haraam to kill them just as it would be if they had embraced Islaam” (Al-Mughni, Ibn Qudaamah: 403/10 and refer to Ash-Sharh Al-Kabeer, Al-Maqdasi: 409/10).

Therefore to summarise, the contracting of the Dhimmah with prisoners of war is viewed as either being the right of the person in authority (Imaam) exercising the choice in accordance to the Maslahah and this is the Hanafi, Maaliki and Hanbali position. Or it is the right of the enemy prisoners themselves who request it, in which case it becomes Haraam to kill them, as was mentioned by the Shaafi’iy school.

The following was mentioned in regards to the reasoning given for permitting this Hukm from amongst the Ahkaam (rulings) related to the prisoner of war: “If it is permitted for him to be let free without financial recompense or by a single payment of an amount taken from him, then by greater reason it would be permissible to let him go free on the basis that an amount is taken from him every year” (Mughni Al-Muhtaaj, 228/4).

In addition, the actions of ‘Umar Ibn Al-Khattaab (ra) have been used as evidence in respect to what he did with the people of war who took the ruling of prisoners of war in the lands that had been conquered by force in his time. He let them go free and made them into Ahlu-dh-Dhimmah who paid the Jizyah in respect to themselves in addition to paying the Kharaaj for what lay under their hands in terms of farming lands. (Kitaab Al-Kharaaj, Abu Yousuf, 27-28)

Abu Yousuf also mentioned in his book ‘Al-Kharaaj’: “As for the people of the villages, the lands, the towns and its people, then the Imaam has a choice in regards to them: If he wishes he can leave them in their lands, places and homes, whilst securing their properties whilst placing the Jizyah upon them and the Kharaaj…” (p74).

With that we suffice ourselves in relation to what needs to be discussed in regards to this issue and we will now move on to the next required area of discussion.

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.