Rabu, 13 Oktober 2010

Ulasan Buku: Fiqh Jihad oleh Yusof Qaradawi

Artikel ini oleh Rajab Abu Maleeh, Consultant to Living Shari`ah Section adalah ulasan buku Fiqh Jihad  karangan Dr.Yusof Qaradawi diambil daripada laman www.onislam.net yang baru dilancarkan pada 9 Oktober 2010 setelah islamonline ditutup sebelum ini kerana pertikaian antara pemberi dana dari Doha dengan pengendali laman IOL.


 
Title: Fiqh of Jihad

Author: Dr. Yusuf Al-Qaradawi

Publisher: Wahba Bookshop

Year: 2009

Number of Pages: 1,439

In the seventh section of the valuable book Fiqh of Jihad, the erudite Sheikh Yusuf Al-Qaradawi answers the question: How does fighting end?

He believes that the fighting ends in one of five situations: to end without fighting at all if both parties withdraw from the battlefield; in reconciliation between the two warring parties; the warring party embraces Islam; the defeat of the enemy and payment of jizyah (poll tax required from non-Muslims living in an Islamic state); or the defeat of Muslims. Each of these cases, he adds, has its own rulings.

First Case: The Warring Parties Do Not Fight; the Enemy Withdraws and War Is Not Waged

Second Case: Reconciliation and Truce

Third Case: Embracing Islam

Fourth Case: Defeat of the Enemy and Payment of Jizyah

Fifth Case: Muslims' Defeat


First Case: The Warring Parties Do Not Fight; the Enemy Withdraws and War Is Not Waged

 This was the case in the famous Ghazwat Al-Khandaq (Battle of the Trench), known also as the Battle of Al-Ahzab (Confederates) when the disbelievers from Quraysh, Ghatafan, and their allies from other Arab tribes attacked Prophet Muhammad (peace and blessings be upon him) and his Companions in Madinah, their home city. The aim of that intensive attack was to liquidate and uproot Muslims and Islam. For that purpose, the attackers gathered all the combatants and equipments they were able to gather.

Allah (Exalted and Glorified be He) says in the Glorious Qur'an, (And Allah turned back the unbelievers in their rage; they did not obtain any advantage, and Allah sufficed the believers in fighting, and Allah is Strong, Mighty) (Al-Ahzab 33:25).

This is a clear proof that fighting per se is not an end the Muslims try to attain

Consider how magnificent and truthful this Qur'anic commentary is! (Allah sufficed the believers in fighting) as Allah reminds the believers of His Grace as He has spared them the burden and cost of fighting.

This is a clear proof that fighting per se is not an end the Muslims try to attain. On the contrary, they are forced to fight and though ordained for them, they dislike it as mentioned in the Glorious Qur'an (Al-Baqarah 2:216). If the battle ends without fighting — as in the Battle of Al-Ahzab — this is a Grace from Allah (Exalted and Glorified be He), which Allah reminds the Muslims of as one of His many favors.

Second Case: Reconciliation and Truce (Before or After the Battle)

The battle between Muslims and their enemy may end by making peace and reconciliation if the enemy inclines to peace and calls Muslims to reconciliation, and they hold back their hands from fighting.

According to Ibn Qudamah, the meaning of "truce" is that the imam contracts with the enemy not to fight for a certain period against or without compensation. It is called a reconciliation and treaty. This is permissible, as Allah (Exalted and Glorified be He) says, ([This is a declaration of] immunity by Allah and His Messenger toward those of the idolaters with whom you made an agreement) (At-Tawbah 9:1). And, (And if they incline to peace, then incline to it, and trust in Allah; surely He is the Hearing, the Knowing) (Al-Anfal 8:61).

Marwan and Al-Miswar ibn Makhramah narrated that the Prophet (peace and blessings be upon him) made peace with Suhayl ibn `Amr, the representative of Quraish, at Al-Hudaybiyyah and agreed they would not fight for 10 years.

Some Muslim jurists said that the truce should not exceed 10 years following the example of the Prophet (peace and blessings be upon him). However, it is established that what the Prophet (peace and blessings be upon him) did does not constitute an obligation. It indicates permissibility, especially regarding Islamic politics whose paramount mainstay is the principle of realizing public interest and the prevention of harm.

Some jurists said that peace, truce, or making a treaty with the disbelievers is permissible if they ask Muslims and incline to peace, as mentioned in the Qur'an. Imam Ibn Al-Qayyim mentions in the "fiqh (jurisprudence) of Al-Hudaybiyyah Treaty and its religious fiqhi (juristic) benefits" that it is permissible for the imam to request a reconciliation from the enemy if the former believes that this achieves the public interest of Muslims. This means that it is not necessary that the disbelievers request that first.

Moreover, the reconciliation of a temporary treaty with non-Muslims may be against money to be paid to Muslims as agreed upon by both parties. It may also be against anything else other than money.

Third Case: Embracing Islam

Muslims do not fight to achieve material or worldly goals

The encounter with the enemy may come to an end if the enemy embraces Islam and declares their abidance with the pillars of Islam, its rituals, and legislations because this is the ultimate goal of fighting and any other action that may precede or follow it. Muslims do not fight to achieve material or worldly goals. On the contrary, the objective of fighting is only to make the Word of Allah (Exalted and Glorified be He) the uppermost. Therefore, the leaders of Muslim armies used to give the armies they faced three choices: to embrace Islam and in this case there would not be any fighting, otherwise, to pay jizyah and then there would also not be any fighting; and the last option is to fight. The Prophet (peace and blessings be upon him) taught them that as indicated in the hadith narrated by Buraydah and reported by Muslim.

If the enemies declare that they accept the Word of Allah and are satisfied with Him as their only Lord, Islam as their only religion, and Muhammad as their prophet and messenger, they shorten the road and become brothers of other Muslims, through the declaration of the word of Islam, i.e., tawheed (monotheism): there is no god but Allah, and Muhammad is the Messenger of Allah. The old enemy would in this case have the same rights and duties of Muslims.

This is stipulated in the Glorious Qur'an in the verse that some scholars call "the verse of the sword." Allah (Exalted and Glorified be He) says,

(So, when the sacred months have passed away, then slay the idolaters wherever you find them, and take them captives and besiege them, and lie in wait for them in every ambush, then if they repent and keep up prayer and pay the poor-rate, leave their way free to them; surely Allah is Forgiving, Merciful.) (At-Tawbah 9:5)

For Islam to be proved, it is enough for the person to utter the Shahadah (Testimony of Faith) even though he does not believe in it in his heart; as we judge by what we see and Allah knows what is in the heart. Allah (Exalted and Glorified be He) says,

(Do not say to anyone who offers you peace: You are not a believer. Do you seek goods of this world's life! But with Allah there are abundant gains.) (An-Nisaa' 4:94)

If the person says what is not in his heart, he becomes a hypocrite to whom the rulings of Islam would be applied just as they are applied to the faithful Muslims. In this way, the Prophet (peace and blessings be upon him) dealt with the hypocrites in Madinah.


Fourth Case: Defeat of the Enemy and Payment of Jizyah

Fighting between Muslims and their enemy can also end by defeating the enemy — its surrender to Muslims and acceptance to submit to their power by paying jizyah to them. In the Glorious Qur'an, Allah (Exalted and Glorified be He) mentions the fighting with the People of the Book and describes the end of the fighting to be: (until they pay the jizyah with willing submission and feel themselves subdued.) (At-Tawbah 9:29)

The Qur'an provides the warring enemies with more than one opportunity

The expression "willing submission" in this context indicates ability and capacity, while "subdued" means abiding by the provisions of Islam in non-religious issues. In other words, they should be subject to the civil and political systems of Islam. Therefore, the word "subdued" does not mean humiliating or disgracing them as some might think. Imam Al-Shafi`i said, "The meaning of 'subdued' in this verse is that non-Muslims abide by Islamic Law and become law-abiding citizens. In this way, they become subdued after they had refused to do so."

The Rulings of the Torah vs. the Rulings of the Qur'an

In this regard, scholars find a big gap between the rulings of the Torah and those of the Qur'an with respect to engaging the enemy.

The Qur'an provides the warring enemies with more than one opportunity: to stop fighting and save their lives if they willingly accept Islam or pay a small amount of money each year in exchange for protection by the Muslims who would then treat them as citizens.

Rather contrary to that, the rules of engagement in the Torah — as described in the Book of Deuteronomy — do not give the warrior any chance to escape from death by any means. He is neither invited to embrace Judaism nor pay tribute. It is well-known that Jews are ordered to slaughter all those who fight them in distant countries, whether men, women, elderly people, or children. As for war in near countries — the so-called Promised Land, which is the land of Palestine — the Torah orders Jews to destroy them altogether and kill all their population without exception!

t the fair person consider the difference between both religions, both Books, and both positions and then decide!

Diferences of Jurists Regarding the Sects From Whom Jizyah Should Be Taken

Muslim jurists have different opinions regarding the different sects from whom jizyah should be taken:

First opinion: It should be taken only from the People of the Book and the Magi. Some say that jizyah should be taken only from the People of the Book (i.e., Jews and Christians) provided that they are not Arabs, in accordance with the literal meaning of the verse on jizyah mentioned in Surat At-Tawbah "from the people of the Scripture," and added the Magi to them as was proven in the Sunnah and the actions of `Umar ibn Al-Khattab (may Allah be pleased with him).

Second opinion: It should not be taken from a Pagan Arab. Some jurists said that jizyah is accepted from the People of the Book and the Magi because they have a book but not from pagan Arabs in accordance with the above-mentioned verse and hadith.

Third opinion: It should be taken from all. Other jurists say that jizyah should be accepted from all disbelievers, whether they are from among the People of the Book or pagans, Arabs or non-Arabs, because there is no explicit text that proves this issue.

This is the opinion I adopt because it conforms to the general philosophy of Islam in international relations. Islam is a universal religion for all humans of all colors. It is a religion that addresses all mankind with wisdom and fair preaching and debates with them in a way that is better. No one is forced to embrace Islam; as such Islam that is based on compelling people is not accepted. Islam is open to all people and adopts the best way. It adopts peace with those who adopt it, fights those who fight, and concludes truce with those who wish. It fights only when it is forced to do so to defend its entity, existence, and sanctities.

Imam Ibn Al-Qayyim said, "When the verse of jizyah was revealed, the Prophet (peace and blessings be upon him) took jizyah from three sects: the Magi, the Jews, and the Christians. He (peace and blessings be upon him) did not take it from the idolaters. Therefore, it was said that it is not permissible to accept jizyah from disbelievers other than these, following the example of the Prophet (peace and blessings be upon him). It was also said that it is permissible to take jizyah from the People of the Book and other disbelievers, such as non-Arab idolaters. The first opinion is that of Al-Shafi`i and Ahmad in one narration, while the second is that of Abu Hanifah and Ahmad in another narration."

This was the norm throughout Islamic history. Muslims entered the land of the Magi (Persia), the Hindus (India), and the Buddhists (China); some of these people converted to Islam and others did not. The latter paid jizyah to Muslims who allowed them to keep their religion. This lasted for centuries and no Muslim scholars rejected or criticized it.

The Amount of Jizyah

What about the amount of jizyah? Should it be fixed, or is it a variable amount? In Al-Mughni, Ibn Qudamah explained the words of Al-Kharqi who said, "There are three categories of people from whom jizyah is taken: the poor pay 12 dirhams, the middle class 24 dirhams, and the rich 48 dirhams." Ibn Qudamah commented, "There are two sides of this issue: to assess the jizyah and to determine its amount. As for the first, there are three narrations: the first is that it should be fixed and cannot be increased. This is the opinion of Abu Hanifah and Al-Shafi`i because the Prophet (peace and blessings be upon him) made it a fixed amount when he told Mu`adh, "Take one dinar from the adult or its equivalent in the form of clothes."

In addition, `Umar fixed it in the presence of the Companions and none of them objected to that. This is considered as unanimous. The second narration is that it should not be fixed, and it is to the discretion of the imam who can increase or decrease it. Al-Athram said that Abu `Abdullah was asked, "Can we increase or decrease the amount of jizyah?" He replied, "Yes, according to the ability of people and the discretion of the imam." The third narration is that jizyah should not be less than one dinar, and the maximum is not fixed. This is the choice of Abu Bakr As-Siddiq. In other words, it is permissible to increase jizyah but not to decrease it because `Umar increased it more than the Prophet (peace and blessings be upon him) did, but he did not decrease it. It is narrated that he made it 50 instead of 48."

Who Draws the Covenant Contract?

Islam enjoined military service on Muslims as being an individual rather than a collective obligation. It orders them to defend the State. However, it exempts non-Muslims from that although they live in the same State

Ibn Qudamah said, "Only the imam or his deputy is allowed to draw the covenant or truce contract. This is the opinion of Al-Shafi`i, and there is no difference on that because this is related to the discretion of the imam and what he considers in the public's best interest, and because this is a permanent contract. Therefore, it becomes invalid if it is drawn by other than the imam or his deputy. However, if it is drawn according to the maximum limit, the imam may approve that."

It is noteworthy that jizyah is not imposed on those who cannot pay it. Therefore, the jurists excluded some sects from whom jizyah should not be taken:

1. Jizyah is not imposed on children, the insane, or women.

2. Jizyah is not imposed on the needy.

3. Jizyah is not imposed on the elderly, the blind, or those who have chronic diseases.


Jizyah Is Obligatory on the Covenant Citizens

Some adopt a superficial view of matters and, therefore, think that Islam is arbitrary to impose jizyah on non-Muslims. If they were fair enough and contemplated the reality of this issue, they would understand that Islam was fair in imposing such a meager jizyah. Islam enjoined military service on Muslims as being an individual rather than a collective obligation. It orders them to defend the State. However, it exempts non-Muslims from that although they live in the same State.

The Islamic State is an ideological one based on a principle and an idea. Therefore, only those who believe in the sound principle and the purpose of the idea should fight to defend it. It is unreasonable to ask someone to sacrifice his life and shed his blood for an idea he deems invalid and a religion he does not believe in. Also, the religions of non-Muslims often prevent them from defending another's religion or fighting for it.

In addition, there may be another reason for imposing jizyah on the covenanted citizens; it is the same reason that makes governments impose taxes on its citizens at any age, namely, to help with the expenses of public facilities that they all share. Everyone benefits from the courthouse, the police, public roads, buildings, and all other public infrastructure, which provide means for a comfortable life for all citizens — Muslims and non-Muslims.

At this juncture, we should ask — or other may ask — a question that must be answered: why did Islam accept jizyah from its opponents who fought against it? Why did it allow them to keep their religions despite that it considers them disbelief and deviations from the truth?

The answer is what Imam Shihab Ad-Din Al-Qarafi Al-Maliki stated in his book Al-Furuq (The differences) in the difference no. 117; he said, "The rule of the jizyah comes under the principle of choosing a lesser evil (i.e., accept that disbelief and its people remain) to avoid a greater evil and protect the highest interests, and this is the objective of the Islamic rules."

Jizyah is imposed in return for military protection provided by the Muslim State to the covenant citizens. If the State is no longer able to provide such protection, its right to take such money or a tax is no longer applicable

In other words, if the disbeliever is killed, the door of faith and belief is closed for him forever. Hence, he loses his chance to enter Paradise and becomes eternally confined in Hellfire. He also suffers the wrath of Allah, the Judge on the Day of Judgment. Therefore, Allah ordained jizyah to give him a chance to embrace Islam, specifically so that he may become more familiar with the good merits of Islam. Once he embraces Islam, his family will follow suit, and he would die as a Muslim and would leave a Muslim family behind instead of a family of disbelievers. Even if he does not embrace Islam, we hope that his family will do that at any time in the future before the Day of Judgment.

When Does Jizyah Lapse?

As indicated above, jizyah is imposed in return for military protection provided by the Muslim State to the covenant citizens. If the State is no longer able to provide such protection, its right to take such money or a tax is no longer applicable. This is what Abu `Ubaydah did when his deputies at the Levant (the region covering Syria, Lebanon, Jordan, and Palestine) told him about the gatherings of the Byzantine legions. He wrote to them to return the jizyah to the covenanted citizens and inform them that they returned this money because they had learned about the Byzantine armies and as they were unable to defend them, they did not have the right to keep the money they had taken for that purpose. They also told them they would abide by the same conditions if they beat the Byzantines.

Fifth Case: Muslims' Defeat

The battle may also end in the defeat of Muslims. Allah (Exalted and Glorified be He) says, (And the Command of Allah is a decree determined) (Al-Ahzab 33:38).

Muslims are a group of people who are subject to Allah's laws like other nations. If they fail to take these Laws into account, if they neglect preparing all means of power they can as a deterrent against the enemies of Allah and their enemies, if they make wrong calculations and assessments of the power of their enemies, if they are surprised by a sudden attack from a stronger enemy that has more powerful weapons and has more training and is ready for war, and if they are not prepared to face their enemies, they would deviate from their religion — the source of their power.

In this case, they would be afflicted with wahan (the love of life and hatred of death and would be dominated by whims and partisanships), so that they separate in sects and parties or any other reasons that lead to exposing them in front of their enemies, and the Laws of Allah do not favor Muslims or non-Muslims. Those who follow them succeed, and those who neglect them fail.

What Should Muslims Do if They Are Weak or Defeated in Front of Their Enemy?

What should Muslims do when their tide ebbs, and when they are defeated by their enemy? Or when they see that their enemy is much stronger, and that they cannot fight against them? It is inevitable to admit the reality because reluctance does not change facts and does not render the weak strong or vice versa.

If the Muslim leadership believes — after consultation, as is the duty — that there is a danger if they continue fighting, they should stop fighting, whether the enemy requests this or not.

In offensive Jihad, withdrawal is the option if there is a fear of destruction. If it is an offensive jihad and Muslims are the ones who conquer, we have to retreat a little, especially if the number of the enemy troops is twice that of the Muslims. Turning the back in this case is permissible, if not obligatory, if the Muslim army is in danger if it continues fighting.

In defensive and resistance jihad, souls are sacrificed but the whole community should not be destroyed. However, if it is defensive jihad (resisting the attacking enemy), it is forced rather than chosen jihad. It is a resistance jihad to the invading enemy so that it does not enter the land of Islam, or to expel the enemy if they have already entered. In this kind of jihad, souls should be sacrificed to preserve the land, honor, sanctities, and sanctuaries but not to the point of exposing the whole community to destruction.

It is neither wise nor right to be involved in a life-or-annihilation confrontation with the enemy if powers are unequal or even close. This is the realism of Islam that deals with the facts on the ground and does not adopt useless ideals. Islam always aims to realize public interests and prevent harm. In this regard, Islam includes a section of fiqh called "Fiqh of Compromises."

Is it permissible that the Imam requests reconciliation with the enemy? In the fiqh of the Battle of Hudaybiyyah, Imam Ibn Al-Qayyim holds the opinion that it is permissible for the imam to request reconciliation from the enemy if he believes that this achieves the public interest of Muslims. This means that it is not necessary that the disbelievers request it first.

Is it permissible for Muslims to pay money to their enemy? Based on the fiqh of the Battle of Hudaybiyyah, Imam Ibn Al-Qayyim believes that reconciling with non-Muslims on what is unjust for Muslims is permissible to attain the public interest of Muslims and avoid a worse evil option, as in doing so his is an avoidance of a highest harm by choosing a lesser harm.

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