By Sadia Tabassum
Distinction between Muslim and non-Muslim rebels: legal implications
The Muslim jurists do not apply the law of baghy to rebels when all the rebels are non-Muslims; they apply it only when non-Muslim rebels are joined by Muslim rebels, or when all the rebels are Muslims. When all the rebels are non-Muslims, the jurists apply the general code of war on them,60 which is applicable to other ahl al-harb.61 The jurists discuss this issue under the concept of termination of the contract of dhimmah.62
According to Islamic law, a contractual relationship exists between the Muslim government and the non-Muslim residents of dar al-Islam. By concluding the contract of dhimmah, the Muslim ruler guarantees the protection of life and property as well as freedom of religion to non-Muslims who agree to abide by the law of the land and to pay jizyah (poll tax). The jurists hold that the contract of dhimmah is terminated only by one of the following two acts: first, when a dhimmi becomes permanently settled outside dar al-Islam;63 and second, when a strong group of non-Muslims having enough mana‘ah rebels against the Muslim government.64
Thus, the contract of dhimmah is not terminated by any of the following acts:
– Refusal to pay Jiziyah;
– passing humiliating remarks against Islam or the Qur’an;
– committing blasphemy against any of the Prophets (peace be upon them);
– compelling a Muslim to abandon his religion; or
– committing adultery with a Muslim woman.65
The jurists consider these as crimes punishable under the law of the land.66
Non-Muslims who permanently settle outside dar al-Islam are treated like ordinary aliens,67 while non-Muslim rebels are treated in the same manner as ordinary non-Muslim enemy combatants.68
The net conclusion is that both Muslim and non-Muslim rebels are treated as combatants and the law of war in its totality is applied on them. However, if some or all of the rebels are Muslims, the law puts further restrictions on the authority of the government. For instance, Islamic law prohibits targeting women and children both in its general law of war and in its special law of baghy,69 while the rules of ghanimah applicable to the property of the enemy are not applicable to the property of the rebels, whether Muslims or non-Muslims.70
The combatant status acknowledged by Islamic law for rebels, both Muslims and non-Muslims, offers a great incentive to the rebels to comply with the law of war. Because of this status, the general criminal law of the land is not applied to them. In other words, they can be punished only when they violate the law of war. Furthermore, the additional restrictions regarding Muslim rebels can also be accepted by the international community as general rules applicable to all rebels through an international treaty.71 Finally, as the Islamic law of baghy is part of the divine law, Muslim rebels cannot deny the binding nature of this law and they cannot make the plea that the law has been laid down through treaties to which they are not party.
Legal implications of the de facto authority of rebels
Islamic law recognizes some important legal consequences of the de facto authority of rebels. This is advantageous in so far as it provides further incentive to rebels to comply with the law of war. The jurists elaborated in detail various aspects of this de facto authority, and we will discuss four important implications here.
Collection of revenue by rebels
If rebels collect revenue – that is to say kharaj, zakah, ‘ushr, and khums72 – from people living in the territory under their control, the central government cannot collect that revenue again even if it later resumes control of that territory.73 The reason mentioned in the famous Hanafi text al-Hidayah is that ‘the ruler can collect revenue only when he provides security to his subjects and [in this case] he nfailed to provide them security’.74 Here, an important issue is discussed by the jurists. From the perspective of Islamic law, zakah and ‘ushr are not only categories of revenue but also acts of worship (‘ibadah). That is why a question arises as to whether those who have paid zakah and ‘ushr to rebels would be liable before God to pay it again to the legitimate authority (central government). The answer is that they would be liable before God only if the rebels do not spend this revenue in the heads prescribed by the law.75
Decisions of the courts in dar al-baghy
The Muslim jurists discussed various aspects of the authority of the courts in dar al-baghy. We will analyse three significant points of this debate. First, is it allowed for a person qualified to be a judge to accept such an appointment under the authority of rebels when this person himself denies the legitimacy of their authority?
The answer provided by the jurists is that such a person should accept thispost and decide the cases in accordance with the provisions of Islamic law, even if he does not accept the legitimacy of the appointing authority. Shaybani says:
If rebels take control of a city and, from among the people of that city, appoint as a judge someone who does not support them, he shall enforce hudud and qisas and shall settle the disputes between people in accordance with the norms of justice. He has no other option but to do so.76
In this regard, the jurists generally cite the precedent of the famous Qadi Shurayh, who not only accepted appointment as a judge from Caliph ‘Umar b. al-Khattab but also acted as a judge in Kufah during the tyrannical rule of the Umayyad Caliph ‘Abd al-Malik b. Marwan and the governorship of al-Hajjaj b. Yusuf. The illustriousHanafi jurist Abu Bakr al-Jassas cited this precedent, saying that ‘among the Arabs and even among the clan of Marwan, ‘Abd al-Malik was the worst in oppression, transgression and tyranny and among his governors the worst was al-Hajjaj’.77
Another precedent quoted by the jurists is that ‘Umar b. ‘Abd al-‘Aziz (Allah have mercy on him), the famous Umayyad Caliph who tried to restore the system of the al-Khulafa’ al-Rashidin, did not reappoint the judges who had been appointed by the preceding Umayyad Caliph, who was considered to be a tyrant.
Sarakhsi explains the legal principles underlying this rule in the following way:
Deciding disputes in accordance with the norms of justice and protecting the oppressed from oppression are included in the meaning of ‘enjoining right and forbidding wrong’, which is the obligation of every Muslim. However, for the one who is among the subjects it is not possible to impose his decisions on others. When it became possible for him because of the power of the one who appointed him, he has to decide in accordance with what is obligatory upon him, irrespective of whether the appointing authority is just or unjust. This is because the condition for the validity of appointment is the capability of enforcing decisions, and this condition is fulfilled here.78
The second issue is the validity of the decisions of the courts of dar al-baghy. The jurists have laid down the fundamental principle that, if a judge of dar al-baghy sends his decision to a judge of dar al-‘adl, it will not be accepted by the latter.79 Sarakhsi mentions two reasons for this rule:
1. For the courts of dar al-‘adl, rebels are sinners (fussaq) and the testimony and decisions of those who commit major sins are unacceptable. In other words, the courts of dar al-baghy have no legal authority to bind the courts of dar al- ‘adl.
2. The rebels do not accept the sanctity of the life and property of the people of dar al-‘adl. Hence, there is a possibility that the court of dar al-baghy may have decided the case on an invalid basis.80
However, if the judge of dar al-‘adl, after reviewing the decision of the judge of dar al baghy, concludes that the case was decided on valid legal grounds, such as when he knows that the witnesses were not rebels, he would enforce that decision.81 If it is unknown whether the witnesses were rebels or not, the court of dar al-‘adl would still not enforce this decision ‘because for the one who lives under the authority of the rebels, the presumption is that he is also among them. Hence, the judge [of dar al-‘adl] will act on this presumption unless the contrary is proved’.82 The net conclusion is that decisions of the courts of dar al-baghy will not be enforced by the courts of dar al-‘adl unless, after a thorough review of the decision, the latter conclude that it is valid.
The third issue covers the legal status of the decisions of the courts of dar al-baghy after the central government recaptures that territory. Shaybani says:
Rebels take control of a city and appoint a judge there who settles many disputes. Later on, when the central government recaptures that city and the decisions of that judge are challenged before a judge of ahl al-‘adl, he will enforce only those decisions which are valid.83
If such decisions are valid according to one school of Islamic law and invalid according to another school, they will be deemed valid even if the judge of ahl al- ‘adl belongs to the school that considers them invalid, ‘because the decision of a judge in contentious cases [where the jurists disagree] is enforced’.84 It means that only those decisions of the courts of dar al-baghy will be invalidated that are against the consensus opinion of the jurists. Moreover, such decisions will be invalidated only when they are challenged by an aggrieved party in the courts of ahl al-‘adl.
Hence, generally the decisions of the courts of dar al-baghy are not reopened.85 Treaties of rebels with a foreign power and their legal effects on the supporters of the central government. A peace treaty in Islamic law is deemed to be a category of the larger doctrine of aman.86
One of the fundamental principles of aman is that every Muslim has the authority to grant Aman to an individual or even a group of non-Muslims, provided that the one who grants aman forms part of a strong group that possesses mana‘ah.87 This aman granted by an individual Muslim binds all Muslims.88 Hence, all Muslims are duty bound to protect the life and liberty of the one to whom an individual Muslim or a group of Muslims has granted aman.89
On the basis of these principles, the jurists explicitly stated that if rebels conclude a peace treaty with non-Muslims, it will not be permissible for the central government to fight those non-Muslims in violation of that peace treaty.90
However, if the peace treaty is concluded on the condition that the non-Muslim party will support the rebels in their war against the central government, this treaty will not be deemed a valid aman and the non-Muslims will not be considered musta’minin. Sarakhsi explains this in the following words:
Because musta’min is the one who enters dar al-Islam after pledging not to fight Muslims, while these people enter dar al-Islam for the very purpose of fighting those Muslims who support the central government. Hence, we know that they are not musta’minin. Furthermore, when musta’minin [after entering dar al-Islam] organize their group in order to fight Muslims and take action against them [Muslims], this is considered a breach of aman on their part. Therefore, this intention [to fight Muslims] must invalidate the aman from the beginning.91
In this passage, it is important to note that Sarakhsi considers the territory of rebels as part of dar al-Islam and builds his arguments on this presumption. In other words, although rebels have established their de facto authority over this territory, yet in the eyes of the law this is deemed to be part of dar al-Islam.We will return to this issue later.
Attack of a foreign power on rebels and the legal responsibility of the central government
As a general rule, it is not permissible for ahl al-‘adl to support rebels in war. Hence, if during a war between ahl al-‘adl and rebels a person from among ahl al- ‘adl is killed while he is on the side of the rebels, neither qisas nor diyah will be imposed on the one who killed him, as is the case when a person is killed while he is on the side of non-Muslims.92 However, when rebels are attacked by a foreign power, even the central government is under an obligation to support the rebels.93 Shaybani says that this obligation is imposed even on those ahl al-‘adl who temporarily go to dar al-baghy: The same obligation is imposed on those ahl al-‘adl who happened to be in the territory of rebels when it was attacked by the enemy. They have no option but to fight for protecting the rights and honour of Muslims.94 Sarakhsi, in his usual authoritative style, explain the principle behind this ruling in these words:
Because the rebels are Muslims, hence fighting in support of them gives respect and power to the religion of Islam. Moreover, by fighting the attackers, they defend Muslims from their enemy. And defending Muslims from their enemy is obligatory on everyone who has the capacity to do so.95
In other words, even when two groups of Muslims have a mutual conflict, none of them should seek support of non-Muslims against the other.96 Their mutual conflict is thus deemed an ‘internal affair’ of the Muslim community, in which non-Muslims should not interfere.
De facto authority and legitimacy
Does all this mean that Islamic law gives some kind of legitimacy to rebellion? The answer is an emphatic ‘no’! The combatant status, as noted earlier, is given to all those who participate in war, irrespective of whether or not they are on the right side. For instance, the contemporary law of armed conflict applies equally to all parties to a conflict no matter which party has lawfully or unlawfully resorted to force. In international armed conflicts, combatant status is thus granted to all armed forces independently of any jus ad bellum argument. Similarly, the Muslim jurists acknowledge combatant status for rebels when their mana‘ah is coupled with ta’wil, irrespective of whether their ta’wil is just or unjust.97 Rather, even when they assert that the ta’wil of the rebels is unjust, they acknowledge the combatant status for them if their unjust ta’wil is coupled by mana‘ah.98
We also noted that this rule has been established by the consensus of the Companions of the Prophet.99 Furthermore; we saw that the primary source for the Islamic law of baghy is the conduct of ‘Ali, who recognized the combatant status of those who rebelled against him, although the ta’wil of these rebels was undoubtedly flawed. The conclusion is that acknowledging the combatant status for the rebels does not give legitimacy to their struggle.
This is further explained by the fact that the jurists deem dar al-baghy to be part of dar al-Islam even after the rebels establish their de facto control over that territory.100 In other words, the jurists acknowledge the necessary corollaries of the de facto authority of the rebels in dar al-baghy, yet they do not give de jure recognition to this authority.
The Islamic law on rebellion provides the yardstick of ‘ta’wil plus mana‘ah’ for the identification of the existence of an armed conflict. Moreover, it distinguishes between rebels and an ordinary gang of robbers by recognizing the combatant status for rebels as well as the necessary corollaries of their de facto authority in the territory under their control. Thus, it offers incentives to rebels for complying with the law of war, thereby reducing the sufferings of civilians and ordinary citizens during rebellion and civil wars. At the same time, Islamic law asserts that the territory under the de facto control of the rebels is de jure part of the parent state.
Thus, it answers the worries of those who fear that the grant of combatant status to rebels may give legitimacy to their struggle. Unlike the contemporary law of armed conflict, which for the most part has been laid down through treaties to which the rebels are not a party, the Islamic law on rebellion forms an integral part of the divine law and, as such, is binding on all rebels who claim to be Muslims. Even non-Muslims can seek guidance from this law. If all rebels are non- Muslims, they are not treated like rebels but like ordinary enemy combatants. By virtue of the combatant status, the operation of the general criminal law of the land ceases, even though the government can take punitive action against the rebels for disturbing the peace. This is a solution to the problems faced by the contemporary law of armed conflict. Islamic law acknowledges certain important legal consequences of the de facto authority of the combatants, both Muslims and non-Muslims, in the territory under their control. This offers another incentive for compliance with the law of war.
When non-Muslims are joined by Muslims, or when all rebels are Muslims, Islamic law puts some additional restrictions on the authority of the state. It is only this last point on which Islamic law distinguishes between Muslim and non-Muslim rebels. The reason is obvious. Islamic law talks in terms of Muslim and non-Muslim, while the contemporary law of armed conflict distinguishes between nationals and non-nationals. This is a difference that is found in the very nature of the two systems. However, these additional restrictions can be made applicable to all rebels, both Muslims and non-Muslims, by concluding treaties, since Islamic law acknowledges the validity of treaties for regulating the conduct of hostilities.
1 Thus, the Kitab al-Siyar in the Kitab al-Asl of Muhammad b. al-Hasan al-Shaybani contains a section (Bab) on khuruj. See Majid Khaduri, The Islamic Law of Nations: Shaybani’s Siyar, John Hopkins Press,
Baltimore, 1966, pp. 230–254. The same is true of other manuals of the Hanafi School.
2 This is the case with al-Kitab al-Umm of Muhammad b. Idris al-Shafi‘i. This encyclopaedic work contains several chapters relating to siyar, and one of these chapters is Kitab Qital Ahl al-Baghy wa Ahl al-Riddah (Al-Kitab al-Umm, ed. Ahmad Badr al-Din Hassun, Dar Qutaybah, Beirut, 2003, Vol. 5,
pp. 179–242). The later Shafi‘i jurists followed this practice. Thus, Abu Ishaq Ibrahim b. ‘Ali al-Shirazi’s al-Muhadhdhab also contains a separate chapter on baghy entitled Kitab Qital Ahl al-Baghy (Al- Muhadhdhab fi Fiqh al-Imam al-Shafi‘i, Dar al-Ma‘rifah, Beirut, 2003, Vol. 3, pp. 400–423).
3 Surat al-Hujurat gives directives for dealing with baghy. (49 : 9–10). Muslim jurists discuss the issues relating to baghy while analysing the implications of the religious duty of al-amr bi ’l-ma‘ruf wa al-nahy ‘an al munkar (enjoining right and forbidding wrong). See, for instance, Abu Bakr al-Jassas, Ahkam al-Qur’an, Qadimi Kutubkhana, Karachi, n.d., Vol. 1, pp. 99–101 and Vol. 2, pp. 50–51.
4 See, for instance, traditions in the Kitab al-Imarah in Muslim b. al-Hajjaj al-Qushayri’s al-Sahih.
5 The illustrious Hanafi jurist Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi, in his analysis of the Islamic law of baghy, asserts in many places that ‘‘Ali is the imam in this branch of law’. See Abu Bakr Muhammad b. Ahmad b. Abi Sahl al-Sarakhsi, al-Mabsut, ed. Muhammad Hasan Isma‘il al-Shafi‘i, Dar al-Kutub al-‘Ilmiyyah, Beirut, 1997, Vol. 10, p. 132.
6 ‘Uthman, the third caliph, was martyred by rebels in 35 AH (655 CE). ‘Ali had to fight several wars with his opponents among Muslims and was martyred by a rebel in 40 AH (660 CE). His son al-Husayn was martyred by the government troops in Karbala’ in 61 AH (681 CE). There were several other instances of rebellion during the lifetime of the great Muslim jurist and the founder of the Hanafi school of Islamic law, Abu Hanifah al-Nu‘man b. Thabit (80–150 AH (699–767 CE)).
7 As we shall see later, when non-Muslims take up arms against a Muslim ruler, it is not deemed ‘rebellion’.
Rather, the general law of war applies to such a situation. Thus, the rules of rebellion apply only when both the warring factions are Muslims. The Qur’an calls the rebels ‘believers’ (Qur’an, 49: 9) and
‘Ali is reported to have said regarding his opponents: ‘These are our brothers who rebelled against us’.
From this, the Fuquaha’ (jurists) derive this fundamental rule of the Islamic law of baghy. See Sarakhsi, above note 5, Vol. 10, p. 136.
8 Legally speaking, it is true that international humanitarian law (IHL) applies whenever an armed conflict exists de facto, even if a party to the conflict does not acknowledge the existence of the conflict. Yet refusal by the state to acknowledge the existence of the armed conflict within its boundaries complicates the application. See for details: International Committee of the Red Cross (ICRC), ‘Improving compliance with international humanitarian law’, background paper prepared for informal high-level expert meeting on current challenges to international humanitarian law, Cambridge, 25–27 June 2004. See also Michelle
L. Mack, Compliance with International Humanitarian Law by Non-state Actors in Non-international
Armed Conflicts, Program on Humanitarian Policy and Conflict Research, Harvard University, Working
Paper, 2003, available at: http://www.reliefweb.int/rw/lib.nsf/db900sid/AMMF–6SYHW3/$file/Harvard-
Nov2003.pdf? Openelement (last visited 7 February 2011) See also Marco Sasso` li, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in International
Humanitarian Legal Studies, Vol. 1, 2010, pp. 5–51.
9 There are two major reasons for this. First, states do not want other states and international organizations to interfere in such a situation. Second, states consider insurgents to be criminals and law-breakers.
They fear that acknowledging belligerent status for insurgents may give some sort of legitimacy to their struggle.
10 As opposed to general international law, IHL binds ‘all parties to a conflict’, including the non-state actors even if they did not sign the Geneva Conventions or its Additional Protocols. Yet difficulty may arise in making the non-state actors comply with IHL, mainly because they lack ownership of that law.
11 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, Cambridge University Press, Cambridge, 2001, p. 4.
14 Muhammad Hamidullah, The Muslim Conduct of State, Sheikh Muhammad Ashraf, Lahore, 1945, p. 167.
16 We may quote Abou El Fadl here: ‘The difference … between an act of sedition and an act of treason will depend on the context and circumstances of such an act, and on the constructed normative values that guide the differentiation. Therefore, often the distinction created between one and the other is quite arbitrary in nature’, above note 11, p. 4.
17 M. Hamidullah, above note 14, p. 168.
18 Abu ’l-Fadl Jamal al-Din Muhammad Ibn Manzur, Lisan al-‘Arab, Dar Bayrut, Beirut, 1968, Vol. 14, p. 78.
19 Muhammad Amin b. ‘Uthman Ibn ‘Abidin al-Shami, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, Matba‘t Mustafa al-Babi al-Halbi, Cairo, n.d., Vol. 3, p. 308.
20 For instance, the revolt of Zayd b. ‘Ali, the great grandson of ‘Ali, is called khuruj not baghy.
21 Thus in the chapters on Siyar in the Hanafi manuals the section entitled ‘Bab al-Khawarij’ mentions the rulings of Islamic law regarding rebellion irrespective of whether the rebellion is just or unjust.
22 ‘Ala al-Din Abu Bakr Al-Kasani, Bada’i‘ al-Sanai’i‘ fi Tartib al-Shara’i‘, ed. ‘Ali Muhammad Mu‘awwad and ‘Adil Ahmad ‘Abd al-Mawjud, Dar al-Kutub al-‘Ilmiyyah, Beirut, 2003, Vol. 9, p. 360. In Islamic law, hadd is a fixed penalty, the enforcement of which is obligatory as a right of God. Ibid., Vol. 9, p. 177.
23 Thus they held that the rules of hudud (fixed penalties for specific crimes), qisas (equal punishment for culpable homicide and injuries), diyah (financial compensation for homicide), arsh (financial compensation for injuries), and daman (financial compensation for damage to property) are not applicable to rebels. For details, see below, pp. 8–11.
24 That is why the books on Islamic criminal law devote sections to the issue of rebellion.
25 Sarakhsi, above note 5, Vol. 10, p. 130.
29 Abu ’l-Hasan ‘Ali b. Muhammad al-Mawardi, al-Ahkam al-Sultaniyah wa ’l-Wilayat al-Diniyyah, Dar Ibn Qutaybah, Kuwait, 1989, p. 166.
30 M. Hamidullah, above note 14, p. 168.
31 When a government gives de facto recognition to another government, it means that the former is acknowledging as a matter of fact that the latter is exercising effective control of a certain territory. This does not necessarily mean that this control is legal. De facto recognition is usually given where doubts remain as to the long-term viability of the government. As opposed to this, de jure recognition implies accepting the legitimacy of the authority of that government on the territory under its effective control.
See Malcolm N. Shaw, International Law, Cambridge University Press, Cambridge, 2003, pp. 382–388.
32 Baghy on unjust grounds is fasad and the duty of enjoining right and forbidding wrong requires Muslims to curb this fasad. Similarly, if the ruler is unjust, the duty of enjoining right and forbidding wrong requires Muslims to try to remove him because he indulges in fasad. Hence, there is no contradiction; rather, these are two sides of the same picture. For an elaborate discussion on the Qur’anic doctrine of fasad fi ’l-ard, see Abu ’l A‘la Mawdudi, al-Jihad fi ’l-Islam, Idara-e-Tarjuman al-Qur’an, Lahore, 1974, pp. 105–117.
33 The famous Hanafi jurist Ibn Nujaym defines siyasah as ‘the act of the ruler on the basis of maslahah (protection of the objectives of the law), even if no specific text [of the Qur’an or the Sunnah] can be cited as the source of that act’. Zayn al-‘Abidin b. Ibrahim Ibn Nujaym, al-Bahr al-Ra’iq Sharh Kanz al- Daqa’iq, Dar al-Ma‘rifah, Beirut, n.d., Vol. 5, p. 11. The fuqaha’ validated various legislative and administrative measures of the ruler on the basis of this doctrine. For instance, the faramin of the Mughal emperors or the qawanin of the Ottoman sultans were covered by the doctrine of siyasah. This authority of the ruler, however, is not absolute. The fuqaha’ assert that if the ruler uses this authority within the constraints of the general principles of Islamic law, it is siyasah ‘adilah (good governance) and the directives issued by the ruler under this authority are binding on the subjects. However, if the ruler transgresses these constraints, it amounts to siyasah zalimah (bad governance) and such directives of the ruler are invalid. Ibn ‘Abidin, above note 19, Vol. 3, p. 162. For details of the doctrine of siyasah, see the monumental work of the illustrious Imam Ahmad b. ‘Abd al-Halim Ibn Taymiyyah: al-Siyasah al- Shar‘iyyah fi Islah al-Ra‘i wa al-Ra‘iyyah, Majma‘ al-Fiqh al-Islami, Jeddah, n.d.
34 Qur’an, 5 : 33.
35 Ibid., 48 : 9–10.
36 The Hanafi jurists generally mention the rules of hirabah (robbery) in the chapter on sariqah (theft). See, for instance, Sarakhsi, above note 5, Vol. 9, pp. 134 ff. Some of them, however, mention the rules of hirabah in a separate chapter. For instance, Kasani first mentions the crimes of zina and qadhf in the
Kitab al-Hudud (Kasani, above note 22, Vol. 9, pp. 176–274), after which he mentions the crime of theft in the Kitab al-Sariqah (ibid., Vol. 7, pp. 275–359), and then he elaborates the rules of hirabah in the
Kitab Qutta‘ al-Tariq (ibid., Vol. 7, pp. 360–375). Finally, he begins an elaborate discussion of the law of war in the Kitab al-Siyar (ibid., Vol. 7, pp. 376–550), devoting the final section (fasl) to the rules of baghy (ibid., Vol. 9, pp. 543–550).
37 Sarakhsi, above note 5, Vol. 10, p. 136. As noted earlier, the question as to who will decide whether the ta’wil of these insurgents is valid or not is not the concern of the fuqaha’. They concentrate only on the code for the conduct of hostilities (adab al-qital) in rebellion, irrespective of whether that rebellion is just or not. Thus, Sarakhsi says that, even if the ta’wil of the rebels is invalid, it is deemed sufficient to suspend the rules of qisas, diyah, and daman. Ibid.
38 In this analysis, I have primarily relied on the exposition of the Hanafi jurists instead of mixing the views of the various schools. This is because the methodology of talfiq or ‘conflation’ – mixing and combining opinions based on different and sometimes conflicting principles – leads to analytical consistency.
However, I have added references to the views of other jurists in the footnotes.
39 See Imran Ahsan Khan Nyazee, General Principles of Criminal Law: Islamic and Western, Advanced Legal Studies Institute, Islamabad, 1998.
40 The hadd of qadhf (false imputation of committing illicit sexual intercourse) is deemed a mixed right of
God and of the individual but the right of God is deemed predominant. Kasani, above note 22, Vol. 9, p. 250.
41 Ibid., Vol. 9, p. 273.
42 These punishments are the rights of God, and as such the limits of the punishments are deemed ‘fixed’, but as the right of the individual is predominant the aggrieved individual or his/her legal heirs can pardon, or reach a compromise with, the offender.
43 Ibn ‘Abidin, above note 19, Vol. 3, p. 162.
44 Kasani, above note 22, Vol. 9, pp. 248–250.
45 Ibid., Vol. 9, pp. 273–274.
47 Sarakhsi, above note 5, p. 136. The Shafi‘i jurist Abu Ishaq al-Shirazi says: ‘If a prisoner among the rebels accepts the authority of the government, he shall be released. If he does not accept the authority of the government, he shall be imprison till the end of the hostilities after which he shall be released on the condition that he shall not participate in war.’ Shirazi, above note 2, Vol. 3, p. 404.
48 Sarakhsi, above note 5, p. 136.
49 Ibid., p. 141. The same is the preferred opinion of the Shafi‘i school. Shirazi, above note 2, Vol. 3, p. 406.
50 Sarakhsi, above note 5, p. 141.
51 Ibid., p. 138. The Shafi‘i jurists have a slightly different approach. Shirazi says: ‘If the rebels or the government forces cause harm to each other’s life and property out of active hostilities (fi ghayr al-qital), compensation (daman) is obligatory …If the government forces cause harm to the life and property of the rebels during war, no compensation will follow … If the rebels cause harm to government forces during war, there are two opinions … The preferred opinion is that no compensation will follow’. Shirazi, above note 2, Vol. 3, pp. 405–406. This rule is applicable when the rebels have already attained mana‘ah. If they cause any harm before attaining mana‘ah, they will be forced to compensate. Ibid.,
Vol. 3, p. 409. The rule is the same when they have mana‘ah, but lack ta’wil. Ibid.
52 Sarakhsi, above note 5, p. 139.
53 Municipal law of a party, including its criminal law, is not applicable to the acts (or omissions) of the combatants of the other party. This is a necessary corollary of acknowledging the combatant status. As
Islamic law acknowledges this status for non-Muslims aliens, it also acknowledges its necessary corollary.
The rule holds true even if these non-Muslims later embrace Islam because Islamic law does not allow retrospective application of criminal law.
54 Ibid., p. 136.
55 Ibid. Shirazi quotes the same precedent: Shirazi, above note 2, Vol. 3, p. 406. Muwaffaq al-Din Ibn
Qudamah al-Maqdisi, the famous Hanbali jurist, says: ‘When the rebels can not be controlled except by killing, it is permissible to kill them and there is no liability of sin, compensation or expiation on the one who killed them’. Muwaffaq al-Din Ibn Qudamah al-Maqdisi, Al-Mughni Sharh Mukhtasar al-Khiraqi,
Maktabat al-Riyad al-Hadithah, Riyadh, 1981, Vol. 8, p. 112. He further says: ‘And the rebels also do not have the obligation to compensate for the damage they caused to life and property during war’. Ibid.,
56 Sarakhsi, above note 5, p. 136.
58 Ibid., p. 142. We noted above that the position is the same in the Shafi‘i school. Shirazi, above note 2,
Vol. 3, p. 409.
59 M. Hamidullah, above note 14, pp. 167–168.
60 The general code of war in Islamic law not only distinguishes between lawful and unlawful targets but also puts many restrictions on the means and methods of warfare. These include, inter alia, prohibition of attacking non-combatants, prohibition of mutilation, prohibition of wanton destruction, obligation of observing treaty provisions, permissibility of ruses, and prohibition of perfidy. For a detailed comparative study of the Islamic jus in bello and the contemporary law of armed conflict, see Muhammad
Mushtaq Ahmad, Jihad, Muzahamat awr Baghawat Islami Shari‘at awr Bayn al-Aqwami Qanun ki Roshni
mayn, Shariah Academy, Gujranwala, 2008, pp. 295–478, 583–594, and 631–668. See also Ameur
Zemmali (ed.), Maqalat fi ’l-Qanun al-Dawli al-Insani wa ’l-Islam, ICRC, Geneva, 2007.
61 Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi, Sharh al-Siyar al-Kabir, Dar al-Kutub al-‘Ilmiyyah,
Beirut, 1997, Vol. 4, p. 164. One may compare it with the notion of international armed conflict in the contemporary international legal order.
62 According to Muslim jurists, the Islamic state has a contractual relationship with non-Muslims residing permanently within its territory. This contract is called ‘dhimmah’ (literally, a contract that brings rebuke (dhamm) if violated). By virtue of the contract of dhimmah, the Islamic state guarantees equal protection of life and property to its non-Muslims citizens. For details, see Kasani, above note 22, Vol. 9, pp. 426–458.
63 In modern parlance, one may say that Islamic law does not acknowledge the concept of ‘dual nationality’.
It may be noted here that Pakistani law also does not acknowledge this concept. See Section 14 of the Pakistan Citizenship Act, 1951.
64 A third factor is also mentioned, namely, embracing Islam. Kasani, above note 22, Vol. 7, p. 446.
However, this, of course, is not a cause for the loss of the right to permanent residence in dar al-Islam.
65 Kamal al-Din Muhammad Ibn al-Humam al-Iskandari, Fath al-Qadir ‘ala ’l-Hidayah, Dar al-Kutub al- ‘Arabiyyah, Cairo, n.d., Vol. 4, p. 381. Jurists, other than the Hanafis, hold that the contract of dhimmah is terminated by any of these acts, although some of them hold that this is true only when it was mentioned in the contract that these acts must be avoided. Ibn Qudamah, above note 55, Vol. 8, p. 525;
Shams al-Din Muhammad b. Muhammad al-Khatib al-Shirbini, Mughni al-Muhtaj ila Sharh al-Minhaj,
Matba‘at al-Halbi, Beirut, 1933, Vol. 4, p. 258.
66 Iskandari, above note 65, Vol. 4, p. 381.
67 Burhan al-Din ‘Ali b. Abi Bakr b. ‘Abd al Jalal al-Farghani al-Marghinani, Al-Hidayah fi Sharh Bidayat al-Mubtadi, Dar al-Fikr, Beirut, n.d., Vol. 2, p. 405.
68 Shaybani, above note 61, Vol. 4, p. 164; Iskandari, above note 65, Vol. 4, p. 382. It may be noted here that termination of the contract of dhimmah by some of the non-Muslims does not affect the legal status of those who did not terminate it. Iskandari, above note 65, Vol. 4, p. 253; Shirbini, above note 65, Vol. 4,
p. 258; Ibn Qudamah, above note 55, Vol. 8, p. 524.
69 However, they can be targeted if they directly participate in hostilities.
70 This is the opinion of the Shafi‘i jurists: Shirazi, above note 2, Vol. 3, pp. 406–407. The Hanafi jurists hold that the additional prohibitory rules of the code of rebellion are only applicable to Muslims rebels: Sarakhsi, above note 5, Vol. 10, p. 137.
71 Islamic law allows a Muslim ruler to conclude treaties with non-Muslims for regulating the conduct of hostilities and for putting restrictions on the authority of the parties to the treaties. Sarakhsi, above note
51, Vol. 1, pp. 210–214.
72 Kharaj is the term used for the tribute paid by non-Muslims to the Muslim government through a peace settlement. See Muammad Rawwas Qal’aji, Mu‘jam Lughat al-Fuqaha’, Dar al-Nafa’is lil-Nashr wa al-
Tawzi‘, Beirut, 2006, p. 194. This includes jizyah (ibid., p. 164). Zakah is the revenue collected from the savings of rich Muslims at the rate of 2.5% per annum. It is also deemed an act of ‘ibadah (ritual worship). Ibid., p. 233. ‘Ushr is a 10% tax levied on the crops of Muslims in un-irrigated land. If the crops are in irrigated land, the rate is 5%, and in that case it is called nisf al-‘ushr (half of 10%). Ibid., p. 312.
Khums is the 20% revenue levied on minerals (ma‘adin) and buried treasures (kunuz). Ibid., p. 201.
73 Marghinani, above note 67, Vol. 2, p. 412. Professor Imran Ahsan Khan Nyazee translated the relevant passage of al-Hidayah in these words: ‘What the rebels have collected by way of kharaj and ‘ushr, from the lands that they came to control, is not to be collected a second time by the imam’. Al-Hidayah: The
Guidance, Amal Press, Bristol, 2008, Vol. 2, p. 343. The Shafi‘i jurists have a different approach. They say that zakah will not be recollected, while jizyah will, and for kharaj there are two opinions. Shirazi, above note 2, Vol. 3, p. 407. The same opinion is held by the Hanbali jurists. Ibn Qudamah, above note 55, Vol. 8, pp. 118–119.
74 Marghinani, above note 67, Vol. 2, p. 412.
76 Sarakhsi, above note 5, Vol. 10, p. 138. Ibn Qudamah says: ‘When rebels appoint a judge who is qualified for the post, his legal position is similar to the judge of the central government’. Ibn Qudamah, above note 55, Vol. 8, p. 119.
77 Jassas, above note 3, Vol. 1, p. 99.
78 Sarakhsi, above note 5, Vol. 10, p. 138.
79 Ibid., Vol. 10, p. 142. The Shafi‘i jurists hold that it is better for the judge of ahl al-‘adl not to accept the decision of the judge of ahl al-baghy. However, if he accepts it and decides accordingly, the decision will be enforced. Shirazi, above note 2, Vol. 3, p. 407. The Hanbali jurists take the same position. Ibn Qudamah, above note 55, Vol. 8, p. 120.
80 Shirazi says that the decisions of the judge of the rebels will only not be enforced if he does not believe in the sanctity of the life and property of ahl al-‘adl. Shirazi, above note 2, Vol. 3, p. 407.
81 Sarakhsi, above note 5, Vol. 10, p. 138.
83 Ibid., p. 142. The Shafi‘i jurists are of the opinion that decisions of the rebel courts shall not be overturned even after the territory is recaptured by the central government because such decisions are presumed to be based on ijtihad. Shirazi, above note 2, Vol. 3, p. 407.
84 Sarakhsi, above note 5, Vol. 10, p. 142. See also Ibn Qudamah, above note 55, Vol. 8, p. 120.
85 This is known as the doctrine of ‘past and closed transactions’. There is an interesting example of this doctrine in Pakistani judicial history when some judges of the Supreme Court ‘rebelled’ against the then chief justice Sajjad Ali Shah. It was finally concluded that, after the so-called Judges Case (Al-Jehad Trust v. Federation of Pakistan, PLD 1996 SC 324), Justice Shah was not qualified to continue as chief justice because he was not the most senior judge of the Supreme Court. However, the cases decided by Justice Shah as ‘de facto chief justice’ were not reopened, on the basis of the doctrine of past and closed transactions. Malik Asad Ali v. Federation of Pakistan, 1998 SCMR 15; see also Hamid Khan,
Constitutional and Political History of Pakistan, Oxford University Press, Karachi, 2001, pp. 274–275.
86 Kasani divides aman into two basic categories: aman mu’abbad (also called dhimmah) and aman mu’aqqat. see Kasani, above note 22, Vol. 9, p. 411. The former is a treaty of perpetual peace whereby the non-Muslim party agrees to pay jizyah to Muslims and is thereby entitled to the right of permanent residence in dar al-Islam, with Muslims guaranteeing them the protection of life and liberty. The latter is further divided into aman ma‘ruf (ordinary aman), which is accorded to those who want to enter dar al- Islam temporarily, and muwada‘ah (peace treaty), which is concluded with a foreign group of non- Muslims who are willing to establish a peaceful relationship. Muwada‘ah may be either time-specific (mu’aqqatah) or not (mutlaqah). Ibid., Vol. 9, p. 424.
87 That is why a Muslim prisoner in the custody of the enemy or a Muslim trader in a foreign land cannot grant aman. Shaybani, above note 51, Vol. 1, p. 213.
88 Ibid., Vol. 1, p. 201.
89 However, a Muslim ruler has the authority to prohibit his subjects from granting aman in a particular situation, if someone grants aman after this prohibition, it will have no validity. Ibid., Vol. 1, p. 227.
Moreover, a Muslim ruler also has the authority to terminate the aman granted by one or more of his subjects, but he cannot take any action against those to whom aman was granted unless he gives them a notice of the termination of aman and provides them with an opportunity to reach a place where they deem themselves safe (ma’man). Ibid., Vol. 2, p. 229.
90 Sarakhsi, above note 5, Vol. 10, p. 141. Not only that, but the fuqaha’ also assert that, even if the rebels seize the property of these ahl al-muwada‘ah, in violation of the peace treaty, the central government should not buy this property from them. Rather, it should advise the rebels to return the property to the rightful owner. If the rebels surrender, or the government overpowers them, the government will be bound to return the property to the rightful owner. Ibid.
91 Ibid., Vol. 10, p. 143. The Shafi‘i and Hanbali jurists hold the same view and Shirazi and Ibn Qudamah give the same argument. Shirazi, above note 2, Vol. 3, p. 406; Ibn Qudamah, above note 55, Vol. 8,
p. 121. The same principle applies to any treaty of the central government with non-Muslims for military support against Muslim rebels.
92 Sarakhsi, above note 5, Vol. 10, p. 140.
93 The basis for this obligation is that, even after rebellion, the rebels are deemed to be Muslims. Ibid., Vol. 10, p. 107.
96 Shirazi, above note 2, Vol. 3, p. 404; Muhammad b. ‘Arafah al-Dasuqi, Hashiyah ‘ala al-Sharh al-Kabir, ‘Isa al-Babi, Cairo, 1934, Vol. 4, p. 299; Mansur b. Yunus al-Buhuti, Kashshaf al-Qina‘ ‘an Matn al- Iqna‘,‘Alam al-Kutub, Beirut, 1983, Vol. 6, p. 164.
97 Sarakhsi, above note 5, Vol. 10, p. 136
100 According to the Hanafi jurists, if a person seizes the property of another person in one dar and takes it to another dar, he becomes the owner of that property (ibid., Vol. 10, p. 62). However, if a person takes such property from dar al-‘adl to dar al-baghy, or vice versa, he does not become the owner thereof, ‘because the dar of ahl al-‘adl and ahl al-baghy is one’ (ibid., Vol. 10, p. 135).
Sadia Tabassum is Lecturer in the Department of Law, International Islamic University, Islamabad. She received her LLM in International Law from the same University.