Translated by New Age Islam group of scholars from the original Arabic Chapter on Jihad in "Al-Mausu'ah Al-Fiqhiyah" i.e., Encyclopaedia of Islamic Jurisprudence (45 volumes). This is also known as "Kuwaiti Encyclopaedia for Islamic jurisprudence," as it is the fruit of an effort of the Ministry of Awqaf (religious matters) of Kuwait to build up an encyclopaedia of jurisprudence reconciling all four Sunni Mazhab (schools of jurisprudence).
Main aspects covered in Part 5:
1. Disagreement among the jurists about drowning and burning the palm-tree.
2. Turning one’s back from the army.
3. Possibility of Victory with the small numbers.
4. Fortress of inhabitants of the country against their enemies.
5. Fleeing and gaining the war booty.
6. The ruling of night raid during the fighting
7. The Kuffar using children and women as shields.
8. What ends up fighting?
9. Using the properties of the enemy, their weapon and the rulings of the war booty.
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Translated by New Age Islam Edit Desk
23 April 2021
36. Disagreement among the jurists about drowning and burning the palm-tree
The Shaafiis, the Hanbalis and the common scholars including Al-Awzai and Al-Laith hold the view that it is not permissible to drown and burn the palm-tree, because it is narrated by Abu Bakr as-Siddiq (may Allah be pleased with him) that he said to Yazid Bin Abi Sufiyan, recommending him, “do not burn a palm-tree and do not drown it. (Al-Mughni 8/451)
And this is a corruption that is included in the general meaning of the words of Allah Almighty:
“When he turns his back his aim everywhere is to spread mischief through the earth and destroy crops and cattle. But Allah loveth not mischief.” (2:205)
And because the animal has a soul, it is not allowed killing it, for enraging the Mushrikin [polytheists].
As for the reason of its being permissible for the Hanafi School, it causes to enrage and weaken them, so it is identical to killing their beasts during their fighting. (Ibn Abidin 3/223)
The Malikis explained the statement, “if the intention of damaging it [palm-tree] is for the cause of taking honey, it will be permissible to damage the palm-tree, regardless of honey being more or less. If the intention is not as such, it will be Makrooh [disliked] to damage it in case of its being less, whereas if the honey is more, it is permissible despite Karaha [dislike] according to one opinion. However, according to another opinion, in that case, it is not permissible but only when the honey is more. (HashiyatudDusuqi 2/181)
(H) Turning One’s Back From The Army
37. There is no disagreement among the jurists that standing firm [Thabaat] during Jihad is Wajib [imperative] and turning one’s back from it is haram [forbidden], because Allah Almighty says:
“O ye who believe! when ye meet the unbelievers in hostile array never turn your backs to them. If any do turn his back to them on such a day unless it is in a stratagem of war or to retreat to a troop (of his own) He draws on himself the wrath of Allah and his abode is Hell and evil refuge (indeed)!” [8:15-16).
Allah Almighty says: “O ye who believe! when ye meet a force be firm and call Allah in remembrance much (and often); that ye may prosper.” [8:45).
The prophet (peace be upon him) counted the act of turning one’s back from the army as one of the seven destroyers of deeds, as he said: “Stay away from the seven destroyers of your deeds”, then he mentioned, “turning one’s back during battle” (Ibn Abidin 3/224, Al-Badaai’ 7/99, HashiyatudDusuqi 2/178, Al-Muhadhdhab 2/322, NihayatulMuhtaj 2/65, Al-Mughni 8/484, KashshafulQina’ 3/45,46)
Then the jurists differed in explaining it:
38. The Malikis, the Shaafiis and the Hanbalis hold that turning one’s back is forbidden [haram] and the standing firm in Jihad is Wajib [imperative] with two conditions:
First: that the size of the Kuffar’s army is not more than twice that of the Muslims. If they are more than twice the number of Muslims, then turning one’s back is permissible, because Allah Almighty says: “Now Allah has lightened [the hardship] for you, and He knows that among you is weakness. So if there are from you one hundred steadfast, they will overcome two hundred. And if there are among you a thousand, they will overcome two thousand by the permission of Allah. And Allah is with the steadfast" (Surah Anfal 8: 66)
Though the words of this verse are that of Khabar [literally means; news, report, information etc.], there is a command, as Allah Almighty says, “Now Allah has lightened [the hardship] for you” (8:66). If it had been Khabar in its origin, our turning from ‘one’s overcoming ten to two’ [ghalabatulwahidlila’sharahilalithnain] would not occur decreasingly, because the Khabar of Allah Almighty is true and nothing happens against it. It has been known that victory and domination are not achieved by Muslims in every place where the size of the enemy is more than twice the number of Muslims or less than that. Hence, it is known that there is a command and obligatory [in this verse] and nothing came to abrogate this verse, neither in the Qur’an nor in Sunnah, therefore its rule is Wajib [imperative]. Ibn Abbas said, “when the verse: “If there are twenty steadfast amongst you [Muslims], they will overcome two hundred [Kuffar in the battle]” was revealed, it became hard on the Muslims when it became compulsory that one Muslim ought not to flee [in war] before ten [Kuffar]. So Allah Almighty lightened the command by revealing: “For the present Allah hath lightened your (task) for He knoweth that there is a weak spot in you: but (even so) if there are a hundred of you patient and persevering they will vanquish two hundred and if a thousand they will vanquish two thousand with the leave of Allah: for Allah is with those who patiently persevere.” (Surah Anfal 8: 66). So when Allah Almighty reduced the number of enemies which Muslims should withstand, their patience and perseverance against the enemy decreased as much as their task was lightened for them. Ibn Abbas said: “If one man runs away from three, he hasn’t turned his back in battle. If he runs from two then he has turned his back in battle”. It is Wajib [imperative] for Muslims to stand firm [during the war], in case they think of damage [if they flee away from the battle] because Allah Almighty says: “O ye who believe! when ye meet the unbelievers in hostile array never turn your backs to them. If any do turn his back to them on such a day unless it is in a stratagem of war or to retreat to a troop (of his own) He draws on himself the wrath of Allah and his abode is Hell and evil refuge (indeed)!” [8:15-16).
The Malikis said: This is what Ibn Abidin mentioned quoting from Al-Khaniyah: If the number of the Muslims reaches twelve thousand, it is forbidden [haram] to flee from the battlefield. If the number of Kuffar is much more, fleeing is still forbidden, unless the words of Muslims differ [from one another during the battle]. [However, there is a condition that] If the number of Kuffar is much more and the Kalima of Muslims differ, then, in that case, it is permissible to flee [from the battle], even though the Muslims are twelve thousand (Ibn Abidin 3/224, HashiyatudDusuqi 2/178). They infer that prophet (peace be upon him) said, “Twelve thousand will not be overcome through the smallness of numbers” (related by Abu Dawud)
The second condition in which it is Wajib to stand firm on the battlefield is that by turning one’s back one neither aims at joining a troop for support nor at manoeuvring for the battle. If one aims at either of them, it is then permissible for him to turn one’s back, because Allah Almighty says: “And whoever turns his back to them on such a day, unless swerving [as a strategy] for war or joining [another] company, has certainly returned with anger from Allah” (8:16)
The word Taharruf for Qital used [in the Arabic text of the verse] to refer to turning away towards a certain side obliquely where fighting is more possible, such as turning the face-direction from the sun or the wind and positioning the back to them, or turning from low to high, or from the thirsty land to the land with water, or turning to attack the enemy or separate their horses from their people, or find a chance upon them, or rest on the mountain and all that usually takes place during the war.
The word Tahayyuz towards a group [in the verse] refers to turning to join up a group of Muslims to gather additional support and strengthen them for defeating their enemy, no matter whether the distance is far or near. So if the war is on at Khurasan and the group is at Hijaz, it is permissible to turn to join the group. This is because Ibn Umar (may Allah be pleased with him) narrated that the prophet (peace be upon him) said to those who turned away towards Madina while he was there: “Rather you are al-Akkarun [the Arabic term Akkar refers to the one who flees to his Imam so that he may help him, it does not mean fleeing from the advancing army] and I am reinforcement of Muslims” (related by Abu Dawud 3/107)
There is evidence that the one who turns to join a group is called to be Akkar rather than the one who turns one’s back from the battlefield. Therefore there is no warning for Akkar. (Al-Bada’i 7/99, NihayatulMuhtaj 8/66, Al-Muhadhdhab 2/232, Al-Mughni 8/485, KashshafulQina’, 3/46)
Possibility Of Victory With The Small Numbers
39. If the enemy is more than twice the number of Muslims and the Muslims have a strong probability of victory, it is Mustahabb [commendable] for these Muslims to stand firm [in the battlefield] for the cause of Maslaha [public interest/advantage]. If these Muslims go away from it [battlefield], it is permissible, because they [with the small numbers] are not safe from the damage and the rule is based on their probability i.e. they are less than half the number of their enemy. If the Muslims are more than half the number of their enemy, then it is incumbent upon them to stand firm, even though they have a strong probability of their destruction in it.
Muslims shall probably stand firm [in the battlefield] if they have a strong probability of victory for the cause Maslaha [public interest] (Al-Mughni 8/486 and KashshafulQina’ 3/47)
If the Muslims have a strong probability that they will be destructed in case they stand firm, then there are two forms:
First that they should turn their back [to the battlefield] because Allah Almighty says: “Do not cast yourselves into destruction with your own hands” (2:195)
Second that they should not turn their back and this is proper because Allah Almighty says: “O ye who believe! when ye meet a force be firm and call Allah in remembrance much (and often); that ye may prosper.” (8:45). The reason is that a Mujahid fights for attaining either of the two honours; Shahadah [martyrdom] or victory, war booty and reward. Allah Almighty says: “Allah hath purchased of the believers their persons and their goods; for theirs (in return) is the garden (of Paradise): they fight in His cause and slay and are slain: a promise binding on Him in truth through the Law the Gospel and the Qur'an: and who is more faithful to his covenant than Allah? Then rejoice in the bargain which ye have concluded: that is the achievement supreme.” (9:111)
Muhammad bin Al-Hasan said, there is nothing wrong with the Muslims if they are defeated by the enemy, in case the numbers of the enemy are more [than twice the number of Muslims] and there is also nothing wrong with the Muslims having patience. Some people say it is similar to ‘cast one’s life into destruction, but rather it is to achieve [the rank of] laying down the life in the way of Allah.
Al-Haskafi said: If Muslims know that they will be killed while fighting [the enemy] and if they do not fight, they will be seized, it is then not incumbent upon these Muslims to fight. (Sharh al-Siyar al-Kabir 1/88, Addur Al-Muhtar bi HashiyatiibnAabidin 3/222)
With the strong probability, if the Muslims think that whether they stand firm in the battle or turn their back to it, they will be destructed, then standing firm [in the battle] is incumbent, so that they get the rank of Shuhada [martyrs] who tend to fight with the intention that they will be better than the Muwallin [those who turn back] and that they shall overcome too because Allah Almighty says: “How oft by Allah's will hath a small force vanquished a big one? Allah is with those who steadfastly persevere.”(2:249)
The Shaafi’is said: however, it is forbidden [haram] for one hundred brave Muslims to turn their back to two hundred and one weak enemies. It is permissible for one hundred weak Muslims to turn their back to one hundred and ninety-nine brave [enemies]. This is the preferred view considering the meaning [of verse 8:66]. Accordingly, it is permissible to deduce from the Nass [text of the Qur’an] related to forbiddance of turning back from the row [of battle] a meaning that specifies it, because they will have to resist them if they stand firm for them and the number is taken into account when approaching the capacities [of fighting]. Therefore, the dissimilarity will not be characterized by the increase or decrease of one number, nor by the rider and the foot soldier. However, the criterion is if Muslims have power and a strong probability for resisting their enemies who are more than twice the number of Muslims and Muslims hope that they will gain victory over them, or if Muslims have a weakness with a strong probability of not being able to resist their enemies, where turning back from the battlefield is permissible. So if there is a strong probability of destruction without damaging the Kuffar, then it is imperative [Wajib] to turn back, and if there is a strong probability of getting destructed with inflicting some damage on the Kuffar, then it is commendable [Mustahabb] to turn back. (NihayatulMuhtaj 8/66,67)
The Hanafis hold the view that the rule in this regard will be made according to strong opinion [ghaliberaae] and strong probability without [considering] the number. If the Warriors have a strong probability that they may resist them [enemies], it is incumbent to stand firm [in the battlefield], even though they are less than them in number. If they have a strong probability that they may be overcome [by the Kuffar], then there is nothing wrong with their turning away to take sides with the Muslims to seek support from them, even though they are more than the Kuffar in number. Similarly, if one warrior who has no weapon faces two [enemies] who have weapons or one enemy holding weapon, in all that case there is nothing wrong with turning away to join a group of comrades for gaining support.
Muhammad bin Al-Hasan said: it is disliked [Makrooh] for one powerful [Muslim] to flee away from two disbelievers [Kaafir]. It is also disliked for one hundred Muslims to flee away from two hundred disbelievers [during fighting]. But, there is nothing wrong with one Muslim warrior fleeing away from three disbelievers, and one hundred Muslim warriors fleeing away from three hundred [enemies]. (Al-Badai’ 7/98,99, Ibn Abidin 3/224)
Fortress Of Inhabitants Of The Country Against Their Enemies
40. if the enemies come to a Muslim country, the Shaafi’is and the Hanbalis state that the inhabitants of the country must be fortified from the enemy, even though they are more than half the number of the enemies, so that they can have assistance or strength. This is neither regarded as the act of turning back nor that of fleeing, because the act of turning back occurs after confronting the enemy. If they [Muslims] confront them [the enemy] outside the fort, they should turn towards the fort because it is like Taharruf for fighting [Taharruf i.e. turning away towards a certain side obliquely] or Tahayyuz i.e. turning away to join a group of Muslims to seek support from them. [Note: turning back or fleeing from the ongoing war is permissible while tahayyuz and taharruf are permissible as they are of war tactics]
While fighting if Muslims lose their riding animals, it will not be any ‘uzr [excuse] for fleeing away from the battlefield, because the fighting is possible on foot [without being on riding animals]. If they turn away towards a mountain to fight there on foot, there is nothing wrong with it, because this is regarded as Taharruf for fighting. If their weapons become useless they should turn towards a place where they can fight by throwing a stone, hiding behind the trees and so on. Or if turning towards the place results in well-being [Maslaha], this is permissible. (Al-Muhadhdhab 2/233, RaudatutTalibin 10/249, NihatyatulMuhtaj 8/65, and Al-Mughni 8/486)
Fleeing And Gaining The War Booty
41. If some people flee away before gaining the war booty and the rest of them gain it, the Hanbalis state that those who fled away would not be given any share because the war booty has been gained by others and therefore the share will be given to those have gained it. If they mention that they fled turning to join a group [of Muslims] to gain support or as taharruf for fighting, in that case too, there is no share for them. But If they flee after gaining the war booty, their right will not fall from them, because they have owned the war booty on their strength, so their possession will not be seized as a result of their fleeing later (Al-Mughni 8/486). This has been discussed in detail in the chapter ‘Ghanimah’.
The Ruling Of Night Raid During The Fighting
42. The jurists hold the view that it is permissible to do night raids on Kuffar and kill them in their carelessness [Ghaflah], even though it unintentionally leads to the killing of those whose killing is prohibited in Islam such as women, children, the insane and the old. It is reported on the authority of Saab bin Jaththama that “the Prophet of Allah (may peace be upon him), when asked about the women and children of the polytheists being killed during the night raid, said: They are from them” (related by Bukhari –Alfatah 6/146 and Muslim 3/1364). The rulings of night raid during the battle have been discussed in detail in the previous chapter ‘Tabyeet’ (Al-Mausua’ 10/125,126)
Similarly, it is permissible to kill the Kuffar [during the war] in the underground granary, without the intention of killing the women, children and so on. It is permitted to cut off the water for them and break the much-trodden road, even though it results in the killing of women and children on the strength of the hadith of Saab bin Jaththama and because the purpose is to weaken them and terrorize them so that they accept the call towards Allah. And it is also permissible to attack those who sell the animal fodder to them and their woodcutters and so on. (Al-Mughni 8/44, KashshafulQina’ 2/48, Al-Muhadhdhab 2/34, NihayatulMuhtaj 8/64, t. Mustafa Al-Halabi)
The Kuffar using children and women as shields
43. The Arabic word At-turs means ‘shield’ by which one protects oneself during the war. It also means a piece of wood or piece of iron put behind the door for sealing it. The shield during the war has been referred to in the Holy Qur’an: “They are the ones who denied revelation and hindered you from the Sacred Mosque and the sacrificial animals detained from reaching their place of sacrifice. Had there not been believing men and believing women whom ye did not know that ye were trampling down and on whose account a crime would have accrued to you without (your) knowledge. (Allah would have allowed you to force your way but He held back your hands) that He may admit to His mercy whom He will. If they had been apart We should certainly have punished the Unbelievers among them with a grievous punishment.” (48:25).
This verse refers to the Muslims including al-Walid bin al-Walid, Salamah bin Hisham, Ayyash bin Abi Rabi’a and Abu Jundal bin Suhail. If the disbelievers [Kuffar] had set apart from the believers at Makkah, Allah Almighty would have punished the disbelievers with a painful torment by the hands of those believers who were outside Makkah. (Ahkam al-Qura’n by Ibn Arabi 4/176, Tafsir Ibn Kathir 4/192, Seerate Ibn Hisham 2/322).
As regards the ruling of shield [turs or tatarrus], there is no disagreement among the jurists about the permissibility of firing on the disbelievers [Kuffar], even though these disbelievers use Muslims or their prisoners as shields during the fighting, but this is only when fighting is necessary so much that abstaining from the fighting will result into the defeat of Muslims and fear that the fundament of Islam will be rooted out. At that time, the Muslims should aim at firing only on the disbelievers [and not on those who have been used by Kuffar as shields].
However, as regards when there is no such need of firing on them, in case the war is off or they [Muslims] have the capability of defeating them without it, the jurists hold different views that have been mentioned in the chapter ‘Tatarrus’. (Al-Mausua’ Al-Fiqhiyyah 10/137,138, the term ‘Tatarrus’).
What Ends Up Fighting?
44. The people of book and Majoos [Magians/Zoroastrians/Magos] will be fought until they accept Islam or give the Jizyah with their own hands while they are humbled. By paying Jizyah, they can remain on their religion. The reason is that Allah Almighty says, “Fight those who believe not in Allah nor the Last Day nor hold that forbidden which hath been forbidden by Allah and His apostle nor acknowledge the religion of truth (even if they are) of the People of the Book until they pay the Jizya with willing submission and feel subdued.” (9:29). So if they give the Jizyah, the contract of their protection will be made and their blood and riches will be guaranteed protection except where it is justified by law. (Fathul Qadeer 5/197, Al-Mahalli 7/316)
The Kuffar [disbelievers] other than the aforementioned, will be fought until they accept Islam, for it is not permissible for them to remain on the disbelief [Kufr], because the prophet (peace be upon him) said, “I have been commanded to fight the people, till they testify to the fact that there is no god but Allah” (related by Sahih Bukhari 1/22, Al-Muhadhdhab 2/231, Al-Mahalli 7/345)
Three types of Kuffar:
1. The People of the book includes Jews and Christians and those who made the Torah and the Bible a book such as Samaritans and Franks (faranjah) and so on. These are those from whom jizyah is accepted and they can remain on their religion if they pay jizyah.
2. The Zoroastrians (Magians/Majoos) are suspected to have a book. The ruling of Zoroastrians is similar to that of the people of the book, about accepting the jizyah and letting them remain on their religion after they pay Jizyah.
Narrated by Al-Hasan bin Muhammad bin Ali that the prophet (peace be upon him) wrote to the Magians [Zoroastrians] of Hajar, calling them towards Islam. So the one who embraced Islam, it [his Islam] was accepted from him and the one who refused [to accept Islam] was called to pay jizyah on the condition that their slaughter will not be eaten, nor will their woman be married to” (related by Al-Baihqi 9/192 and it is said this hadith is Mursal)
3. The Kuffar who have no book [of Allah] nor are they suspected to have the book. Unlike the two aforementioned types [of Kuffar], these are from the idol worshippers and the rest of the Kuffar. So jizyah will not be accepted by them. Other than Islam, nothing will be accepted from them.
This is the view of Shaafiis and also of some Hanbalis.
As regards the view of Abu Hanifa; as reported by Ahmed, that Jizyah will be accepted from all the Kuffar, except the idol worshippers of Arab, because they are stable on their religion by slavery, so they will pay Jizyah like the Zoroastrians [Magi/Majoos]. Its explanation is mentioned in the chapter ‘Jizyah’.
Similarly, the fighting ends up by truce, that is, by peace-making [Musalaha] which according to Islamic Sharia is a contract that guarantees peace with the people of war [Ahlulharb] and thus the war stops for a period by compensation or other than that. [In Arabic] It is also called Muwaadaa’h, Musalamah, Mua’ahadah and Muhadanah. Its origin is found in the first verse of Surah Baraa’h [Surah 9), as Allah Almighty said: “Excepted are those with whom you made a treaty among the polytheists and then they have not been deficient toward you in anything or supported anyone against you; so complete for them their treaty until their term [has ended]. Indeed, Allah loves the righteous [who fear Him]” (9:4). The prophet (peace be upon him) made a contract of peace with the Quraish in the year of Hudaybiyah. (Fathul Qadir 5/205, JawaharulIklil 1/269)
According to Hanafis and Malikis, as reported by Ahmed, the truce [hudnah] is permissible for the period in which the Imam sees public interest [Maslaha], even though it exceeds more than ten years. The Malikis said: it is commendable [Mustahabb] if the truce does not exceed more than four months.
According to Shaafiis, the truce with the Kuffar is not permissible for more than one year, because this is the period in which [paying] Jizyah becomes imperative [Wajib], hence their remaining on it [the truce] without paying Jizyah is not permissible. As for the permissibility of the truce for more than four months and less than one year, there are two opinions; this is when the Muslims are in powerful condition. But when Muslims live in a weak condition, it is permissible to make a truce for ten years. It is apparent from the statement of Ahmed that the truce is not permissible for more than ten years and this is what Abu Bakr and the Shaafi’i preferred because the prophet (peace be upon him) made a treaty of peace with the Quraish for ten years.
The truce is not permissible but after considering the condition of Muslims; if the Muslims have weakness and are incapable of fighting the Kuffar, or when it is wished that the Kuffar will embrace Islam during their truce or pay jizyah and adhere to the rulings of the religion or other public interests. So if it [such condition] is established, the truce would not be permissible without any specification of the period, because it would result in giving up the Jihad completely. (Al-Mughni 8/459, KashshafulQina’ 3/111,112, and Al-Muhadhdhab 2/259)
This topic has been discussed in detail in the chapter ‘Hudnah’.
Using the properties of the enemy, their weapon and the rulings of the war booty:
45. It is permissible to slaughter from the war booty for eating the animals whose meat is permissible, for this [the ruling of the meat] is like all other food. It is not permissible for anyone to use it to make shoes, water skins, buckets and furs. If anything is made from it, it is imperative [Wajib] to return it to the war booty.
If they acquire a dog [in war booty], so if it is a severely biting dog, it will be killed, due to its being harmful and if the dog is beneficial, it will be handed over to someone from among the gainers of the war booty or the ahlulkhumus [the people who deserve one-fifth of the gain] who can benefit from it. However, if no one among them needs it, it will be freed, because possessing it without any benefit is forbidden [haram].
Having acquired the property of the Kuffar during the war, in case the Muslims fear that it will return to them [Kuffar], then it will be pondered over, and if the property is other than the animal, it will be damaged till they [the Kuffar] cannot benefit from it and cannot gain strength by it over the Muslims [during the war]. But if the war booty is animal, it is not permissible to damage it without necessity. (Al-Muhadhdhab 2/240)
It is mentioned in the hadith that “Anyone who has killed an enemy and has proof of that, will possess his spoils” (related by Bukhari, Al-Fath 6/247, and Sahih Muslim 3/1371 from the hadith of Abu Qatadah). If he kills him [the enemy] during the war, and not before or after the war, he will possess his spoils such as cloths, ornaments, turban and skullcap. Similarly, he will possess [the enemy’s] weapon, sword, bow and spear; such kind of spoils is better than that of cloth. He will also possess riding animals and their instruments such as saddle and bridle; as all of them are beneficial during the war. (KashshafulQina’ 2/72, Al-Mughni 8/394, Al-Mahalli 7/316 and HashiyatudDusuqi 2/191)
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