As for the prisoners who are led before the imam, the latter has the choice of executing them or making them pay a ransom, as he pleases, opting for the most advantageous choice for the Muslims and the wisest for Islam. The ransom imposed upon them is not to consist either of gold, silver, or wares, but is only an exchange for Muslim captives.

...

For my part I say that the decision concerning prisoners is in the hands of the imam: in accordance with whatever he feels to be more to the advantage of Islam and the Muslims, he can have them executed or he can exchange them for Muslim prisoners (pp. 302-303).

Whenever the Muslims besiege an enemy stronghold, establish a treaty with the besieged who agree to surrender on certain conditions that will be decided by a delegate, and this man decides that their soldiers are to be executed and their women and children taken prisoner, this decision is lawful. This was the decision of Sa'ad b. Mu'adh in connection with the Banu Qurayza (a Jewish tribe of Arabia) (p. 311).

The decision made by the chosen arbitrator, if it does not specify the killing of the enemy fighters and the enslavement of their women and children, but establishes a poll tax, would also be lawful; if it stipulated that the vanquished were to be invited to embrace Islam, it would also be valid and they would therefore become Muslims and freemen (p. 311).

...Is it not correct that Allah has said in His Book: "Fight those ... until they pay the tribute out of hand and have been humbled" (Koran 9:29), and that the Prophet invited the polytheists to embrace Islam, or, if they refused, to pay the poll tax, and that Umar b. al-Khattab, after having subdued the inhabitants of Sawad, did not spill their blood but made them tributaries? (p. 312).

I heard the Apostle of God in the campaign against Banu Qurayza saying: "He [of the enemy] who has reached puberty should be killed, but he who has not should be spared."

The sacred injunction concerning war is sufficiently observed when it is carried on by any one party or tribe of Muslims, and it is then no longer of any force with respect to the rest. It is established as a divine ordinance, by the word of God, who said in the Qur'an, "slay the infidels," and also by a saying of the Prophet, "War is permanently established until the Day of Judgment" (meaning the ordinance respecting war). The observance, however, in the degree above mentioned, suffices, because war is not a positive injunction, as it is in its nature murderous and destructive, and is enjoined only for the purpose of advancing the true faith or repelling evil from the servants of God; and when this end is answered by any single tribe or party of Muslims making war, the obligation is no longer binding upon the rest, in the same manner as in the prayers for the dead-(if, however, no one Muslim were to make war, the whole of the Muslim, would incur the criminality of neglecting it) – and also because if the injunction were positive, the whole of the Muslims must consequently engage in war, in which case the materials for war (such as horses, armour, and so forth) could not be procured. Thus it appears that the observance of war as aforesaid suffices, except where there is a general summons (that is, where the infidels invade a Muslim territory, and the Imam for the time being issues a general proclamation requiring all persons to go forth to fight), for in this case war becomes a positive injunction with respect to the whole of the inhabitants, whether men or women, and whether the Imam be a just or an unjust person; and if the people of that territory be unable to repulse the infidels, then war becomes a positive injunction with respect to all in that neighbourhood; and if these also do not suffice it, then comes a positive injunction with respect to the next neighbours; and in same manner with respect to all the Muslims from east to west.

The destruction of the sword is incurred by infidels, although they be not the first aggressors, as appears from various passages in the traditions which are generally received to this effect.

It is not incumbent upon infants to make war, as they are objects of compassion; neither is it incumbent upon slaves or women, as the rights of the master, or of the husband, have precedence; nor is it so upon the blind, the maimed, or the decrepid, as such are incapable. If, however, the infidels make an attack upon a city or territory, in this case the repulsion of them is incumbent upon all Muslims, insomuch that a wife may go forth without consent of her husband, and a slave without the leave of his master, because war then becomes a positive injunction; and possession, either by bondage or by marriage, cannot come in competition with a positive injunction, as in prayer (for instance) or fasting. This is supposing a general summons; for without that it is not lawful for a woman or slave to go forth to make war without the consent of the husband or master, as there is in this case no necessity for their assistance, since others suffice, and hence no reason exists for destroying the right of the husband or master on that account. If there be any fund in the public treasury, so long as the fund lasts any extraordinary exaction for the support of the warriors is abominable, because such exaction resembles a hire for that which is a service of God as much as prayer or fasting, and, hire being forbidden in these instances, so is it in that which resembles them. In this case, moreover, there is no occasion for any extraordinary exactions, since the funds of the public treasury are prepared to answer all emergencies of the Muslims, such as war, and so forth. If, however, there be no funds in the public treasury, in this case the Imam need not hesitate to levy contributions for the better support of the warriors, because in levying a contribution the greater evil (namely, the destruction of the person) is repelled, and the contribution is the smaller evil, and the imposition of a smaller evil to remedy a greater is of no consequence. A confirmation of this is found in what is related of the Prophet, that he took various articles of armour, and so forth, from Safwan and ‘Umar; in the same manner also he took property from married men, and bestowed it upon the unmarried, in order to encourage them and enable them to go forth to fight with cheerfulness; and he also used to take the horses from those who remained at home, and bestowed them upon those who went forth to fight on foot. When the Muslims enter the enemy's country and besiege the cities or strongholds of the infidels, it is necessary to invite them to embrace the faith, because Ibn 'Abbas relates of the Prophet that he never destroyed any without previously inviting them to embrace the faith. If, therefore, they embrace the faith, it is unnecessary to war with them, because that which was the design of the war is then obtained without war. The Prophet, moreover, has said we are directed to make war upon men only until such time as they shall confess, "There is no God but one God." But when they repeat this creed, their persons and properties are in protection (aman). If they do accept the call to the faith, they must then be called upon to pay jizyah, or capitation tax, because the Prophet directed the commanders of his armies so to do, and also because by submitting to this tax war is forbidden and terminated upon the authority of the Qur'an. (This call to pay capitation tax, however, respects only those from whom the capitation tax is acceptable, or, as to apostates and the idolaters of Arabia, to call upon them to pay the tax is useless, since nothing is accepted from them but embracing the faith, as it is thus commanded in the Qur'an). If those who are called upon to pay capitation tax consent to do so, they then become entitled to the same protection and subject to the same rules as Muslims because ‘Ali had declared infidels agree to a capitation tax only in order to render their blood the same as Muslims’ blood, and their property the same as Muslims’ property.

If a Muslim attacks infidels without previously calling them to the faith, he is an offender, because this is forbidden; but yet if he does attack them before thus inviting them and slay them and slay them, and take their property, neither fine, expiation, nor atonement are due, because that which protects (namely, Islam) does not exist in them, nor are they under protection by place (namely the Daru 'l-Islam, Muslim territory), and the mere prohibition of the act is not sufficient to sanction the exaction either of fine or of atonement for property; in the same manner as the slaying, a person were to slay such, he is not liable to a fine. It is laudable to call to the faith a people to whom a call has already come, in order that they may have the more full and ample warning; but yet this is not incumbent, as it appears in the Traditions that the Prophet plundered and despoiled the tribe of al-Mustaliq by surprise, and he also agreed with Asamah to make a predatory attack upon Qubna at an early hour, and to set it on fire, and such attacks are not preceded by a call. (Qubna is a place in Syria: some assert it is the name of a tribe.)

If the infidels, upon receiving the call, neither consent ot it nor agree to pay capitation tax, it is then incumbent on the Muslims to call upon God for assistance, and to make war upon them, because God is the assistant of those who serve Him, and the destroyer of His enemies, the infidels, and it is necessary to implore His aid upon every occasion; the Prophet, moreover, commands us so to do. And having so done, the Muslims must then with God's Assistance attack the infidels with all manner of warlike engines (as the Prophet did by the people of Ta'if), and must also set fire to their habitations (in the same manner as the Prophet fired Baweera), and must inundate them with water and tear up their plantations and tread down their grain because by these means they will become weaponed, and their resolution will fail and their force be broken; these means are, therefore, all sanctified by the law.

It is no objection to shooting arrows or other missiles against the infidels that there may chance to be among them a Muslim in the way either of bondage or of traffic, because the shooting of arrows and so forth among the infidels remedies a general evil in the repulsion thereof from the whole body of Muslims, whereas the slaying of a Muslim slave or a trader is only a particular evil, and to repel a general evil a particular evil must be adopted, and also because it seldom happens that the strongholds of the infidels are destitute of Muslims, since it is most probable that there are Muslims residing in them, either in the way of bondage or of traffic, and hence, if the use of missile weapons were prohibited on account of these Muslims, war would be obstructed. If the infidels in time of battle should make shields of Muslim children, or of Muslims, who are prisoners in their hands, yet there is no need on that account to refrain from the use of missile weapons, for the reason already mentioned. It is requisite, however, that the Muslims in using such weapons aim at the infidels, and not at the children or the Muslim captives, because, as it is impossible in shooting to distinguish precisely between them and the infidels, the person who discharges the weapon must make this distinction in his intention and design by aiming at the infidels, and not at the others, since this much is practicable, and the distinction must be made as far as is practicable.

There is also neither fine nor expiation upon the warriors on account of such of their arrows or other missiles as happen to hit the children or the Muslims, because the war is in observance of a divine ordinance, and atonement is not due for anything which may happen in the fulfillment of a divine ordinance, for otherwise men would neglect the fulfillment of the ordinance from an apprehension of becoming liable to atonement. It is otherwise in the case of a person eating the bread of another when perishing for hunger, as in that instance atonement is due; although eating the bread of other people, in such a situation, be a divine ordinance, because a person perishing for hunger will not refrain from eating the provision of another, from the apprehension of atonement, since his life depends upon it; whereas war is attended with trouble and dangerous to life, whence men would be deterred, by apprehension of atonement, from engaging in it. There is no objection to the warriors carrying their Qur’ans and their women along with them, where the Muslim force is considerable, to such a degree as to afford a protection from the enemy, and not to admit of any apprehension from them, because in that case safety is most probable, and a thing which is most probable stands and is accounted as a thing certain. If the force of the warriors be small (such as is termed a Sarriyah) so as not to afford security from the enemy, in this case their carrying their women or Qur’ans along with them is reprobated, because in such a situation taking those with them is exposing them to dishonour; and taking the Qur’an with them, in particular, is exposing it to contempt, since infidels scoff at the Qur’an, with a view of insulting the Muslims; and this is the true meaning of the saying of the Prophet, ‘Carry not the Qur’an along with you into the territory of the enemy’ (that is, of the infidels). If a Muslim go into an infidel camp under a protection, there is no objection to his taking his Qur’an along with him, provided these infidels be such as observe their engagements, because from these no violence is to be apprehended.

It is lawful for aged women to accompany an army, for the performance of such business as suits them, such as dressing victuals, administering water, and preparing medicines for the sick and wounded; but with respect to young women, it is better that they stay at home, as this may prevent perplexity or disturbance. The women, however, must not engage in fight, as this argues weakness in the Muslims. Women, therefore, must not take any personal concern in battle unless in a case of absolute necessity; and it is not laudable to carry young women along with the army, either for the purpose of carnal gratification, or for service; if, however, the necessity be very urgent, female slaves may be taken, but not wives. A wife must not engage in a fight but with the consent of her husband, nor a slave but with the consent of his owner (according to what was already stated, that the right of the husband and the master has precedence), unless from necessity where an attack is made by the enemy. It does not become Muslims to break treaties or to act unfairly with respect to plunder or to disfigure people (by cutting off their ears and noses, and so forth); for as to what is related of the Prophet, that he disfigured the Oorneans, it is abrogated by subsequent prohibitions. In the same manner it does not become Muslims to slay women or children, or men aged, bedridden, or blind, because opposition and fighting are the only occasions which make slaughter allowable (according to our doctors), and such persons are incapable of these. For the same reason also the paralytic are not to be slain, nor those who are dismembered of the right hand, or of the right hand and left foot. Ash-Shafi’I maintains that aged men, or persons bedridden or blind may be slain because, (according to him) infidelity is an occasion of slaughter being allowable, and this appears in these persons. What was before observed, however, that the paralytic or dismembered are not to be slain, is in proof against him, as infidelity appears in these also, yet still they are not slain, whence it is evident that mere infidelity is not a justifiable occasion of slaughter. The Prophet, moreover, forbade the slaying of infants or single persons, and once, when the Prophet saw a woman who was slain, he said, ‘Alas! This woman did not fight, why, therefore, was she slain?’ But yet, if any of these persons be killed in war, or if a woman be a queen or chief, in this case it is allowable to slay them, they being qualified to molest the servants of God. So, also, if such persons as the above should attempt to fight, they may be slain, for the purpose of removing evil, and because fighting renders slaying allowable.

A lunatic must not be slain unless he fight, as such a person is not responsible for his faith, but yet where he is found fighting it is necessary to slay him, for the removal of evil. It is also to be observed that infants or lunatics may be slain so long as they are actually engaged in fight, but it is not allowed to kill them after they are taken prisoners, contrary to the case of others, who may be slain even after they are taken, as they are liable to punishment because they are responsible for their faith.

A person who is insane occasionally stands, during his lucid intervals, in the same predicament as a sane person.

It is abominable in a Muslim to begin fighting with his father, who happens to be among the infidels, nor must he slay him, because God has said in the Qur’an, ‘Honour thy father and they mother,’ and also because the preservation of the father’s life is incumbent upon the son, according to all the doctors, and the permission to fight with him would be repugnant to that sentiment. If, also, the son should find the father, he must not slay him himself, but must hold him in view until some other come and slay him: for thus the end is answered without the son slaying his father, which is an offence.

If, however, the father attempt to slay the son, insomuch that the son is unable to repel him but by killing him, in this case the son need not hesitate to slay him, because the design of the son is merely to repel him, which is lawful; for if a Muslim were to draw his sword with a design of killing his son, in such a way that the son is unable to repel him but by killing him, it is then lawful for the son to slay his father, because his design is merely repulsion. In a case, therefore, where the father is an infidel, and attempts to slay his son, it is lawful for the son to slay the father in self-defence a fortiori.

If the Imam make peace with aliens, or with any particular tribe or body of them, and perceive it to be eligible for the Muslims, there need be no hesitation, because it is said in the Qur’an: ‘If the infidels be inclined to peace do ye likewise consent thereto,’ and also because the Prophet in the year of the punishment of Eubea, made a peace between the Muslims and the people of Mecca for the space of ten years; peace, moreover is war in effect where the interest of the Muslims requires it, since the design of war is the removal of evil, and this is obtained by means of peace: contrary to where peace is not to the interest of the Muslims, for it is not in that case lawful, as this would be abandoning war both apparently and in effect. It is here, however, proper to observe that it is not absolutely necessary to restrict a peace to the term above recorded (namely, ten years), because the end for which peace is made may be sometimes more effectually obtained by extending it to a longer term. If the Imam make peace with the aliens for a single term (namely, ten years), and afterwards perceive that it is most advantageous for the Muslim’s interest to break it, he may in that case lawfully renew the war after giving them due notice, because, upon a change of the circumstances which rendered peace advisable, the breach of peace is war, and the observance of it a desertion of war, both in appearance and also in effect, and war is an ordinance of God, and the forsaking of it is not becoming (to Muslims). It is to be observed that giving due notice to the enemy is in this case indispensably requisite in such a manner that treachery may not be induced, since this is forbidden. It is also requisite that such a delay be made in renewing the war with them, as may allow intelligence of the peace being broken off to be universally received among them, and for this such a time suffices as may admit of the king or chief of the enemy communicating the same to the different parts of their dominion, since by such a delay the charge of treachery is avoided.

If the infidels act with perfidy in a peace, it is in such case lawful for the Imam to attack them without any previous notice, since the breach of treaty in this instance originates with them, whence there is no occasion to commence the war on the part of the Muslims by giving them notice. It would be otherwise, however, if only a small party of them were to violate the treaty by entering the Muslim territory and there committing robberies upon the Muslims, since this does not amount to a breach of treaty. If, moreover, this party be in force so as to be capable of opposition, and openly fight with the Muslims, this is a breach of treaty with respect to that party only, but not with respect to the rest of their nation or tribe, because, as this party have violated the treaty without any permission from their prince, the rest are not answerable for their act; whereas if they made their attack by permission of their prince, the breach of treaty would be regarded as by the whole, all being virtually implicated in it.

Oh Kings! Mala a'la urges you to draw your swords and not put them back in their sheaths again until Allah has separated the Muslims from the Polytheists and the rebellious kafirs and the sinners are made absolutely feeble and helpless.

... By taking up the sword to make Islam supreme and by subordinating your own personal needs to this cause, you will reap vast benefits.

We beseech you (Durrani) in the name of the Prophet to fight a jihad against the infidels of this region. This would entitle you to great rewards before God the Most High and your name would be included in the list of those who fought jihad for His sake. As far as worldly gains are concerned, incalculable booty would fall into the hands of the Islamic ghazis and the Muslims would be liberated from their bonds. The invasion of Nadir Shah who destroyed the Muslims left the Marathas and Jats secure and prosperous. This resulted in the infidels regaining their strength and in the reduction of the Muslim leaders of Delhi to mere puppets.

. . .

The command to participate in jihad and the mention of its merits occur innumerable times in the Koran and the Sunna. Therefore it is the best voluntary [religious] act that man can perform. All scholars agree that it is better than the hajj(greater pilgrimage) and the umra(lesser pilgrimage), than voluntary salat and coluntary fasting, as the Koran and Sunna indicate. The Prophet, Peace be upon him, has said, "The head of the affair is Islam, its central pillar is the salat and its summit is the jihad." ...

This is a vast subject, unequaled by other subjects as far as the reward and merit of human deeds is concerned. This is evident upon closer examination. The [first] reason is that the benefit of jihad is general, extending not only to the person who participates in it but also to others, both in a religious and a temporal sense. [Secondly,] jihad implies all kinds of worship, both in its inner and outer forms. More than any other act it implies love and devotion for God, Who is exalted, trust in Him, the surrender of one's life and property to Him, patience, asceticism, remembrance of God and all kinds of other acts. Any individual or community that participated in it, finds itself between two blissful outcomes: either victory and triumph or martyrdom and Paradise. [Thirdly,] all creatures must live and die. Now, it is in jihad that one can live and die in ultimage happiness, both in this world and in the Hereafter. ...

Since lawful warfare is essentially jihad and since its aim is that the religion is God's entirely and God's word is uppermost, therefore according to all Muslims, those who stand in the way of this aim must be faught. As for those who cannot offer resistance or cannot fight, such as women, children, monks, old people, the blind, handicapped and their likes, they shall not be killed unless they actually fight with words and acts. Some [jurists] are of the opinion that all of them may be killed, on the mere ground that they are unbelievers, but they make an exception for women and children since they constitute property for Muslims. However, the first opinion is the correct one, because we may only fight those who fight use when we want to make God's religion victorious. ...

The Sharia enjoins fighting the unbelievers, but not the killing of those who have been captured. If a male unbeliever is taken captive during warfare or otherwise, ..., then the head of state (imam) may do whatever he deems appropriate: killing him, enslaving him, releasing him or setting him free for a ransom supported by the Koran and the Sunna. There are, however, some jurists who hold that the options of releasing them or setting them free for a ransom have been abrogated. As for the People of the Book and the Zoroastrians (Majus), they are to be fought until they become Muslims or pay the tribute out of hand and have been humbled. With regard to the others, the jurists differ as to the lawfullness of taking tribute from them. Most of them regard it as unlawful to accept it from [heathen] Arabs.

If a rebellious group, although belonging to Islam, refuses to comply with clear and universally accepted commands, all Muslims agree that jihad must be waged against them, in order that the religion will be God's entirely.

. . .

The most serious type of obligatory jihad is the one against the unbelievers and against those who refuse to abide by certain prescriptions of the Sharia, like those who refuse to pay zakat, the Kharijites and the like. This jihad is obligatory if it is carried out on our initiative and also if it is waged as defense. If we take the initiative, it is a collective duty, [which means that] if it is fulfilled by a sufficient number [of Muslims], the obligation lapses for all others and the merit goes to those who have fulfilled it ...

But if the enemy wants to attack the Muslims, than repelling him becomes a duty for all those under attack and for the others in order to help them. God, He is exalted, has said: "Yet if they ask you for help, for religion's sake, it is your dutyto help them." (K. 8:72) In the same vien the Prophet has ordered Muslims to help fellow Muslims. The assistance, which is obligatory for the professional army and for others must be given according to everybody's possibilities, either in person, by fighting on foot or on horseback, or through financial contributions, be they small or large. ...

The enemy

Scholars agree that all polytheists should be fought. This is founded on [K 8:39]: "Fight them until there is no persecution and the religion is entirely Allah's." ...

The damage allowed to be inflicted upon the different categories of enemies

Damage inflicted upon the enemy may consist in damage to his property, injury to his person or violation of his personal liberty, i.e., that he is made a slave and is appropriated. This may be done, according to the Consensus (idjma) to all polytheists: men, women, young and old, important and unimportant. Only with regard to monks do opinions vary; for some take it that they must be left in peace and that they must not be captured ...
Most scholars are agreed that, in his dealings with captives, carious policies are open to the Imam. He may pardon them, kill them, or release them either on ransom or as dhimmi, in which latter case the released captive is obliged to pay poll-tax." ...
It is only allowed to slay the enemy on the condition that aman [safe conduct] has not been granted. There is no dissension about this among the Moslems. There is controversy, however, concerning who is entitled to grant aman. Everyone is agreed that the Imam is entitled to this. ...
As regards injury to the person, that is, the slaying of the enemy, the Moslems agree that in times of war, all adult, able bodied, unbelieving males may be slain. ...
There is controversy about the question whether it is allowed to slay hermits who have retired from the world, the blind, the chronically ill and the insane, those who are old and unable to fight any longer, peasants, and serfs. ...

The prerequisites for warfare

According to all scholars, the prerequisite for warfare is that the enemy must have heard the summons to Islam. This implies that it is not allowed to attack them before the summons has reached them. All Moslems are agreed about this because of [K 17:15]: "We have not be accustomed to punish until We have sent a messenger." However, there is controversy about the question whether the summons should be repeated when the war is resumed. ...

The maximum number of enemies against which one is obliged to stand one's ground

The maximum number of enemies against which one is obliged to stand one's group is twice the number [of one's won troops]. About this, everybody agrees on account of [K 8:66]: "Now Allah hath made it lighter for you and knoweth that there is weakness among you." ...

God has brought from the believers their selves and their possessions against [the gift of] Paradise. They fight in the way of God; they kill, and are killed; that is a promise binding upon God in the Torah and Gospel and the Qur'an; and who fulfills his covenant better than God? So rejoice in the bargain you have made with Him. That is the mightly triumph. [Q. 9:112]

And He said:

Fight the polytheists totally as they fight you totally; and know that God is with the godfearing. [Q. 9:36]

And He said:

Slay the polytheists wherever you find them, and take them, and confine them, and lie in ambush for them everywhere. But if they repent and perform the prayer and pay the zakat, then set them free. God is All-forgiving, All-compassionate. [Q. 9:5]

And He said:

Fight those who do not believe in God nor in the Last Day, who do not forbid what God and His Apostle have made forbidden, and who do not practice the religion of truth, of those who have been given the Book, until they pay the jizya out of hand and have been humbled. [Q. 9:29]

41. Abd al-Aziz b. Muhammad as-Darawardi told us from Muhammed b. Amr b. Alqama from Abu Salama [b. Abd al-Rahman] from Abu Hurayra, who said that the Apostle of God said:

I shall continue to fight the unbelievers until they say: "There is no god but God," if they make this pronouncement they shall be secured in their blood and property, unless taken for its price, and their reward shall be given by God.

And God, gloried by His praise, said:

O believers, what is the matter with you, that when it is said to you: "Go forth in the way of God," you sink down to the ground? Are you so content with this present life as to neglect the Here-after? The enjoyment of this life is little in comparison with the Hereafter. If you do not go forth, He will inflict upon you a painful punishment, and instead of you He will substitute another people; and you will not hurt Him at all, for God is powerful over everything. [Q. 9:38-39]

And he said:

Go forth, light and heavy! Struggle in God's way with your possessions and yourselves! That is better for you, did you but know. [Q. 9:41]

42. Shafi'i said: These communications mean that the jihad, and rising up in arms in particular, is obligatory for all able-bodied [believers], exempting no one, just as prayer, pilgrimage and [payment of] alms are performed, and no person is permitted to perform the duty for another, since performance by one will not fulfil the duty for another. They may also mean that the duty of [jihad] is a collective (kifaya) duty different from that of prayer: Those who perform it in the war against the polytheists will fulfill their duty and reciever the supererogatory merit, thereby preventing those who stayed behind from falling into error. But God has not put the two [categories of men] on equal footing, for He said:

Such believers who sit at home - unless they have an injury - are not the equals of those who fight in the path of God with their possessions and their selves. God has given precedence to those who fight with their possessions and their selves over those who sit at home. Hod has promised the best of things to both, and He has preferred those who fight over those who fit at home by [granting them] a might reward. [Q. 4:97]

. . .

So far as I have been informed, the Muslims have continued to act as I have stated, from the time of the Prophet to the present. Only a few men must know the law, attend the funeral service, perform the jihad and respond to greeting, while others are exempt. So those who know the law, perform the jihad, attend the funeral service, and respond to a greeting will be rewarded, while others do not fall into error since a sufficient number fulfill the [collective] duty.^[11]

First, those whom the call of Islam has reached, but they have refused it and have taken up arms. The amir of the army has the option of fighting them in one of two ways, that is in accordance with what he judges to be in the best of interests of the Muslims and most harmful to the mushrikun: the first, to harry them from their houses and to inflict damage on them day and night, by fighting and burning, or else to declare war and combat them in ranks;

Second, those whom the invitation to Islam has not reached, although such persons are few nowadays since Allah has made manifest the call of his Messenger - unless there are people to the east and extreme east, or to the west, of whom we have no knowledge, beyond the Turks and Romans we are fighting; it is forbidden to initiate an attack on the mushrikun while they are unawares or at night, that is, it is forbidden to kill them, use fire against them or begin an attack before explaining the invitation to Islam to them, informing them of the miracles of the Prophet and making plain the proofs so as to encourage acceptance on their part; if they still refuse to accept after this, war is waged against them and they are treated as those whom the call has reached. Allah, may He be exalted, says, "Call to the way of your Lord with wisdom and kindly admonition and converse with them by what better in argument" (Qur'an 16:125) - which means ...

If the amir initiates the attack against them before calling tem to Islam or warning them by means of cogent proofs, and kills them by surprise or at night, blood money must be paid; according to the most correct judgment of the Shafi'is, it is equal to the blood money paid to Muslims, although according to others it is equal to the blood money paid to the kuffar, because of the difference of their beliefs. Abu Hanifah, however, says that no blood money is liable for killing them and their blood is shed with impunity.

A Muslim may put to death any mushrik combatant he seizes, whether or not he is involved in the fighting. There is a difference of opinion regarding the killing of old persons and monks inhabiting cells and monasteries. ...

It is not permitted to kill women and children in battle, nor elsewhere, as long as they are not fighting because of the prohibition of the Messenger of ALlah, may the peace and blessings of Allah be upon him, forbade the killing of those employed as servants and mamlouks, that is young slaves. If women and children fight, then they are fought and killed, but only face to face, not from behind while fleeing. If they use their women and children as shields in battle, then one must avoid killing them and aim only at killing the men; if, however, it is impossible to kill them except by killing the women and children, then it is permitted. ...

Moreover as continual perseverence in fighting is among the duties of jihad, it is binding until one of four things occur:

First, they (the enemy) become Muslims, in which case they receive the same rights as us, become responsible for the same obligations as us and they are allowed to retain any land and property they possess. The Messenger of Allah, may the peace and blessings of Allah be upon him, said, "I have been commanded to fight the people until they say, 'No god but Allah.' If they say thing, then their blood and their property are safe from me - except when there exists another legitimate reason." Their country becomes part of the Territory of Islam when they become Muslims during the battle - be they small or great in number - any land or wealth belonging to them in the battle-zone remains theirs. If the amir conquers the battle zone he cannot take the wealth of those who have accepted Islam. ...

Their Islam also entails Islam for any minors amongst their children and any still in the womb. Abu Hanifah, however, says that if a kafir becomes a Muslim in the Territory of Islam, it does not entail Islam for his children who are still minors, whereas if he becomes a Muslim in Dar al-Harb, it entails Islam for his children who are minors, but not for the foetus, for his wife and the foetus are treated as fay.

. . .

The second thing that might occur is that Allah gives victory over them but they remain mushrikun, in which case their women and children are taken prisoner, and their wealth is taken as booty, and those who are not made captive are put to death. As for the captives, the amir has the choice of taking the most beneficial action of the four possibilities: the first, to put them to death by cutting their necks; the second, to enslave them and apply the lays of slavery regarding their sale or manumission; the third, to ransom them in exchange for goods or prisoners; and fourth, to show favour to them and pardon them. Allah, may He be exalted, says, "When you encounter those who deny [the Truth] then strike [their] necks" (Qur'an 47:7). ...

The third possibility is that the enemy make a payment in return for peace and reconciliation. It is permitted to accept this payment and reconciliation with them in two ways:

1. Payment is made immediately and is not treated as ongoing tribute. This payment is treated as booty ... [and] it represents a guarantee that those paying it will no longer be fought during this jihad; it does, however, not prevent a jihad being carried out against them in the future;
2. They make a payment every year in which case it constitutes an ongoing trobute by which their security is established. What is taken from them in the first year is treated as booty and is shared amongst the people entitled to the day. It is not permitted to resume the jihad against them as long as they make the payments. If one of them enters Dar al-Islam, this contract of reconciliation guarantees safety for himself and his wealth. If they refuse to make payment, however, the reconciliation ceases, their security is no longer guaranteed and war must be waged on them - like any other presons from the enemy camp. ...
   
   

As for presents which the enemy offer before before hostilities, their acceptance does not mean any arrangement has been made and it is permitted to make war on them after the offer - as an such arrangement was not the result of contract;

The fourth possibility is that the enemy requests a guarantee of safety and a truce. It is permitted to make a truce of peace for a specific period with them if victory over them and taking payment from them is too difficult to obtain ... The Messenger of Allah, may the peace and blessings of Allah be upon him, made a ten year truce with the Quraysh in the year of Hudaybiyyah. It should be as short as possible and not exceed ten years; if a truce is made with them for more than this, the period in excess of this is invalidated. ...

This section concerning the rules of this type of amirate is about the action to be taken in assailing and fighting the enemy. The amir of the army may use ballistas and catapults when beieging the enemy, for the Messenger of Allah, may the peace and blessings of Allah be upon him, set up a catapult against the inhabitants of Ta'if. He may also destroy their homes, make night raids against them and cause fire. If, moreover, he reckons that by cutting their date-pals and their tree down it will serve to weaken them, such that they are overcome by force and compelled to make a peace agreement, then he should do it; he should not, however, act in this way if he does not see any such benefit in it. . . .

It is also permitted to block off the supply of water to them, or to prevent them from using it, even if there are women and children amongst them

Kufr and Islam are opposed to each other. The progress of one is possible only at the expense of the other and co-existences between these two contradictory faiths in unthinkable.

The honor of Islam lies in insulting kufr and kafirs. One who respects kafirs, dishonors the Muslims. To respect them does not merely mean honouring them and assigning them a seat of honor in any assembly, but it also implies keeping company with them or showing considerations to them. They should be kept at an arm's length like dogs. ... If some worldly business cannot be performed without them, in that case only a minimum of contact should be established with them but without taking them into confidence. The highest Islamic sentiment asserts that it is better to forego that worldly business and that no relationship should be established with the kafirs.

The real purpose in levying jizya on them is to humiliate them to such an extent that, on account of fear of jizya, they may not be able to dress well and to live in grandeur. They should constantly remain terrified and trembling. It is intended to hold them under contempt and to uphold the honor and might of Islam.

. . .

167. Some infidels are permitted to retain the privilege of practicing their religion, in return for a tribute; they are: the Jews, the Christians, and those whose revealed scripture is of doubtful authenticity, that is, the guebres. Any infidel other than those who profess one of the three above-mentioned religions must be compelled to embrace Islam.

168. Every infidel belonging to one of the three categories mentioned in the preceding article, whatever his nationality, Arab or foreigner is permitted to practice his religion, provided that he abides by the conditions that are prescribed.

...

171. The following are exempt from the tribute: infidel minors, madmen, women, and old men who have reached an advanced age. The latter point is disputed, but it is based on tradition; the same goes for infidel slaves.

172. Except for the persons mentioned in the preceding article, every infidel belonging to one of the three categories defined in article 167 is subject to the tribute, including monks and sick people.

173. The infidel who is poor is obliged to pay the tribute, too; but one should wait until he has acquired the means with which to pay.

...

181. An infidel minor, upon attaining maturity, must be compelled to embrace Islam or else to be subjected to the tribute; if he refuses, he is to be reckoned as an enemy and treated as such.

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TRUCE WITH THE INFIDELS

215. This term is understood to mean a treaty concluded with the enemy, having as its purpose a temporary suspension of hostilities during a set period of time.

216. The imam is authorized to negotiate the suspension of hostilities with a view to the general interest, for example, in the case where the number of Muslim soldiers is too weak to be able to continue the war advantageously; when it is necessary to wait for reinforcements, or when there is the hope that, thanks to a suspension of hostilities, the infidel will convert voluntarily to Islam.

217. Except for the cases mentioned in the preceding article, and whn the Muslim army is strong enough in number to pursue the war, it is not permitted to declare a truce.

218. A truce can be declared for a period of four months, but only once in any given year. Some jurists, citing the eighteenth verse of the ninth chapter of the Qur'an are of the opinion that the duration of the truce cannot exceed four months; others, inspired by the sixty0eighth verse of the eighth chapter are of the opinion that the duration of the truce can be extended beyond that term; but it is best, in this regard, to act according to the circumstances.

219. The armistice can be concluded only for a set period of time, unless the imam has reserved for himself, by the treaty, the right to revoke it whenever he wants.

220. When the treaty suspending the hostilities contains a few clauses contrary to the precepts of Islam, for instance the public performance of certain acts forbidden to Muslims, or the return of women captives or refugees, one is not obliged to observe them.

221. The infidel woman who is a captive or a refugee among the Muslims must not be returned, if she has embraced Islam, or if she professed it already; but her dowry must be refunded to her husband, if it is made of things that Muslims are allowed to use; if not, the husband loses his claim to restitution in knod or in money.

Had they Lord pleased, He would have made mankind one nation; but those only to whom they Lord hath granted his mercy will cease to differ... -Qur'an 11.120

The state which is regarded as the instrument for universalizing a certain religion must perforce be an ever expanding state. The Islamic state, whose principal function was to put God's law into practice, sought to establish Islam as the dominant reigning ideology over the entire world. It refused to recognize the coexistence of non-Muslim communities, except perhaps as subordinate entities, because by its very nature a universal state tolerates the existence of no other state than itself. Althrough it was not a consciously formulated policy, Muhammad's early successors, after Islam became supreme in Arabia, were determined to embark on a ceaseless war of conquest in the name of Islam. The jihad was therefore employed as an instrument for both the universalization of religion and the establishment of an imperial world state. ...

The world accordingly was sharply divided in Muslim law into the dar al-Islam and the dar al-Harb. These terms may be rendered in less poetic words as the "world or Islam" and the "world of War." The first corresponded to the territory under Muslim rule. Its inhabitants were Muslims, by birth or conversion, and the communities of the tolerated religions who preferred to hold fast to their own cult, at the price of paying the jizya (poll tax). The Muslims enjoyed full rights of citizenship; the subjects of the tolerated religions enjoyed only partial rights, and submitted to Muslim rule in accordance with special charters regulating their relations with the Muslims. The dar al-harb consisted of all the states and communities outside of the world of Islam. Its inhabitants were often called infidels, or, better, unbelievers.

On the assumption that the ultimate aim of Islam was worldwide, the dar al-Islam was always, in theory, at war with the dar al-harb. The Muslims were requited to preach Islam by persuasion, and the caliph or his commanders in the field to offer Islam as an alternative to paying the poll tax or fighting; but the Islamic state was under legal obligation to enforce Islamic law and to recognize no authority other than its own, superseding other authorities even when non-Muslim communities had willingly accepted the faith of Islam without fighting. Failure by non-Muslims to accept Islam or pay the poll tax made it incumbent on the Muslim State to declare jihad upon the recalcitrant individuals and communities. Thus the jihad, reflecting the normal war relations existing between Muslims and non-Muslims, was the state's instrument for transforming the dar al-harb into the dar al-Islam. It was the product of a war-like people who had embarked on a large-scale movement of expansion. Islam could not abolish the warlike character of the Arabs who were constantly at war with each other; it indeed reaffirmed the war basis of intergroup relationship by institutionalizing war as part of the Muslim legal system and made use of it by transforming war into a holy war designed to be ceaselessly declared against those who failed to become Muslims. The short intervals which are not war-and these in theory should not exceed ten years-are periods of peace. But the jihad was not the only legal means of dealing with non-Muslims since peaceful methods (negotiations, arbitration, and treaty making) were applied in regulating the relations of the believers with unbelievers when actual fighting ceased.

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THE DOCTRINE OF JIHAD

"Every nation has its monasticism, and the monasticism of this [Muslim] nation is the jihad." -a hadith.

The Meaning of Jihad

The term jihad is derived from the the verb jahada which means "exerted"; its juridical-theological meaning is exertion of one's power in Allah's path, that is, the spread of belief in Allah and in making His word supreme over this world. The individual's recompense would be the achievement of salvation, since the jihad is Allah's direct way to paradise. This definition is based on a Qur'anic injunction which runs as follows:

O ye who believe! Shall I guide you to a gainful trade which will save you from painful punishment? Believe in Allah and His Apostle and carry on warfare in the path of Allah with your possessions and your persons. That is better for you. If ye have knowledge, He will forgive your sins , and will place you in the Gardens beneath which the streams flow, and in fine houses in the Gardens of Eden: that is the great gain.

The jihad, in the bread sense of exertion, does not necessarily mean war or fighting, since exertion in Allah's path may be achieved by peaceful as well as violent means. The jihad my be regarded as a form of religious propaganda that can be carried on by persuasion or by the sword. In the early Makkan revelations, the emphasis was in the main on persuasion. Muhammad, in the discharge of his prophetic functions, seemed to have been satisfied by warning his people against idolatry and inviting them to worship Allah. This is evidenced by such a verse as the following: "He who exerts himself, exerts only for his own soul," which expresses the jihad in terms of the salvation for the soul rather than a struggle for proselytization. In the Madinan revelations, the jihad is often expressed in terms of strife, and there is no doubt that in certain verses the conception of jihad is synonymous with the words war and fighting.

The jurists, however, have distinguished four different ways in which the believer may fulfill his jihad obligation: by his heart; his tongue; his hands; and by the sword. The first is concerned with combating the devil and in the attempt to escape his persuasion to evil. This type of jihad, so significant in the eyes of the Prophet Muhammad, was regarded as the greater jihad. The second and the third are mainly fulfilled in supporting the right and correcting the wrong. The fourth is precisely equivalent to the meaning of war, and is concerned with fighting the unbelievers and the enemies of the faith. The believers are under the obligation of sacrificing their "wealth and lives" (Q. 61.11) in the prosecution of war.

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Fight against those who-despite having been given Scripture - do not truly believe in God and the Last Day, and do not treat as forbidden that which God and His Messenger have forbidden, and do not follow the religion of truth, till they pay the submission tax with a willing hand, after they have been humbled. (Verse 29)

Those who know nothing of Islam pretend that Islam counsels against was. Those [who say this] are witless. Islam says: Kill all the unbelievers just as they would kill you all! Does this mean that Muslims should sit back until are devoured by [the unbelievers]? Islam says: Kill them [the non-Muslims], put them to the sword and scatter [their armies]. Does this mean sitting back until [non-Muslims] overcome us? Islam says: Kill in the service of Allah those who may want to kill you! Does this mean that we should surrender [to the enemy]? Islam says: Whatever good there is exists thanks to the sword and in the shadow of the sword! People cannot be made obedient except with the sword! The sword is the key to paradise, which can be opened only for holy warriors!

The great prophet of Islam in one hand carried the Koran and in the other a sword; the sword for crushing the traitors and the Koran for guidance. For those who could be guided, the Koran was their means of guidance, while as for those who could be guided and were plotters, the sword descended on their heads. ... Islam is a religion of blood for the infidels but a religion of guidance for other people.

We have sacrificed much blood and many martyrs. Islam has sacrificed blood and martyrs.

We do not fear giving martyrs. ... Whatever we give for Islam is not enough and is too little. Our lives are not worthy. Let those who wish us ill not imagine that our youths are afraid of death or of martyrdom. Martyrdom is a legacy which we have received from our prophets. Those should fear death who consider the aftermath of death to be obliteration. We, who consider the aftermath of death a life more sublime than this one, what fear have we? The traitors should be afraid. The servants of God have no fear. Our army, our gendarmerie, our police, our guards have no fear. Our guards who were [killed] ... have achieved eternal life. ...

The Western distinction between just and unjust wars linked to specific grounds for war is unknown in Islam. Any war against unbelievers, whatever its immediate ground, is morally justified. Only in this sense can one distinguish just and unjust wars in Islamic tradition. When Muslims wage war for the dissemination of Islam, it is a just war (futuhat, literally "opening," in the sense of opening the world, through the use of force, to the call to Islam); when non-Muslims attack Muslims, it is an unjust war ('idwan).

The usual Western interpretation of jihad as a "just war" in the Western sense is, therefore, a misreading of this Islamic concept. I disagree, for example, with Khadduri's interpretation of jihad as bellum justum. As Khadduri himself observes:

The universality of Islam provided a unifying element for all believers, within the world of Islam, and its defensive-offensive character produced a state of warfare permanently declared against the outside world, the world of war. Thus jihad may be regarded as Islam's instument for carrying out its ultimate objective by turning all people into believers.

According to the Western just war concept, just wars are limited to a single issue; they are not universal and permanent wars grounded on a religious worldview.

The classical religious doctrine of Islam understands war in two ways. The first is literal war, fighting or battle (qital), which in Islam is understood to be a last resort in following the Qur'anic precept to guarantee the spread of Islam, usually when non-Muslims hinder the effort to do so. The other understanding is metaphorical: war as a permanent condition between Muslims and nonbelievers. The Qur'an makes a distinction between fighting (qital) and aggression ( 'idwan) and asks Muslims not to be aggressors: "Fight for the sake of Allah against those who fight against you but do not be violent because Allah does not love aggressors" (al-Baqara 2.190). The same Qur'anic passage continues: "Kill them wherever you find them. Drive them out of places from which they drove you. ... Fight against them until idolatry is no more and Allah's religion reigns supreme" (al-Baqara 2.190-92). The Qur'anic term for fighting is here qital, not jihad. The Qur'an prescribes fighting for the spread of Islam: "Fighting is obligatory for you, much as you dislike it" (al-Baqara 2.216). The qital of Muslims against unbelievers is a religious obligation: "Fight for the cause of Allah ... how could you not fight for the cause of Allah? ... True believers fight for the cause of Allah,. but the infidels fight for idols" (al-'Nisa 4.74-76).

As noted above, Muslims tend to quote Qur'an selectively to support their own ethical views. This practice has caused a loss of specificity in the meaning of jihad, as Saddam Hussein's use of the term during the Gulf War illustrates. The current dissension about the concept of jihad dates from the rise of political Islam and the eruption of sectarian religious strife. Present-day Islamic fundamentalist groups - groups whose programs are based on the revival of Islamic values - often invoke the idea of jihad to legitimize their political agendas. The reason for this misuse of the concept is simple: most fundamentalists are lay people who lack intimate knowledge of Islamic sources and who politicize Islam to justify their activities. Before the Gulf War, for example, this occurred in Egypt, during the Lebanon War, and in the civil war in Sudan. Through such overuse and misuse, the concept of jihad has become confused with the related Islamic concept of "armed fighting" (qital). Therefore, there is a great need for a historical analysis of the place of scripture in Islamic tradition. Although Islamic ethics of peace and war indeed mostly scriptural, scriptural references can be adequately interpreted only in a historical context.

Categories: Quotations | Islamic Scholars