Some legal rulings regarding Jihad:
The body of knowledge is immense, and the details of rulings are endless. But no one is excused from learning at least the fundamentals. It is compulsory on every Muslim to learn the necessary knowledge and that is the knowledge which the validity of our actions depends on.
Following are issues, which are necessary for the mujahid to learn for their jihad to be acceptable:
Rulings regarding Ghanimah:
After the Ghanimah (booty) is gathered the cost of transport and storing should be taken out from it. Then it is split into five equal portions. Four out of five (80%) is split among the mujahidin. The left over fifth is then divided into five:
– 1/5 belongs to Allah and His Messenger. This is to be spent on what benefits the Muslims such as building forts or Masajid or any infrastructure for the Ummah.
– 1/5 goes to Ahl al Bayt (the household of the Messenger of Allah)
– 1/5 to the orphans
– 1/5 to the poor
– 1/5 to the wayfarer
Imam Abu Hanifah divides the fifth into three and not five. He excludes the first two. His opinion is that the portion of the Messenger (Sallallahu a’laihi wa sallam) and His (Sallallahu a’laihi wa sallam) household ended with his death.
Imam Malik’s opinion is that the entire fifth should be deposited into the Muslim treasury and then the Imam spends it as deemed beneficial for the Muslims. Ibn Taymiyah says that the opinion of Malik is the opinion of most of the early Muslims and is the most authentic opinion.
The scholars agree that every Muslim who attends the battle gets his share of booty even if he didn’t fight. They also agree that if a person becomes ill in jihad and cannot fight he still gets his share of booty. If a blind or one-legged person attends jihad and they are of benefit to the army they should get their share of booty.
The 4/5 or 80% of the booty which belong to the mujahidin is divided as follows: The horseman get 3 shares, one for themselves and two for their horses, while the foot soldiers get one share.
In the case of Fay’ (booty that was gained without fighting) it belongs in its entirety to the treasury of the Muslims.
There is a difference of opinion on giving the reinforcement a share of booty if they arrive after the battle is over.
If there is no Imam and the Muslims fight the enemy then they split the booty among themselves. But if there are women in the booty then they are not distributed unless there is an Imam in order to prevent harmful consequences from happening.
If someone goes with the intention of fighting but they are then relegated to non-fighting positions such as guarding the army’s property then such a person gets his share of the booty.
Most scholars state that all of the 80% of the booty must go to the mujahidin and no one has authority to divide it otherwise. Others do allow the Imam to give some of it to others.
If a soldier fails to carry his share and he said – “Whoever can carry it can take it”, Then it is allowed for whoever carries it to appropriate it.
When it comes to property that cannot be transported such as real estate then the Imam has the authority to divide it among the recipients of booty or to make it Waqf (an endowment) or to give it back to it’s original owners and charge them jizyah and Kharaj (land tax). If they become Muslim they are relieved from jizyah but not Kharaj.
In al Hidayah (Hanafi): If a child fights then he receives a portion of the booty less than one share. If a woman participates in nursing and serving then she also receives a portion less than the share of the fighter. Nafil is an additional reward on top of the share of booty that the Imam can give to the ones who participate in risky missions or fight exceptionally well.
Fay’ is what is taken from the disbelievers without a fight. Such as the disbelievers fearing the Muslims and running away from their positions and they leave behind booty, or if they surrender without a fight, or they pay jizyah . The distribution of the fay’ is up to the Imam.
The prohibition of Ghalul:
Definition: Ghalul is anything worth value a soldier takes from the booty that should be split between the army. (This does not include al Salb 1, which is explained later on)
Ghalul is Haraam, no matter how insignificant in value it is and the punishment for it is severe. Allah says,
“It is not (attributable) to any prophet that he would act unfaithfully (in regard to war booty). And whoever takes from it will come with what he took on the Day of Resurrection. Then will every soul be compensated for what it earned, and they will not be wronged.” (Surah Ali Imran, 3 : 161)
Ghalul is one of the major sins and there are many hadiths prohibiting it:
Ibn Abbaas said: Umar told me during Khaibar some of the Sahabah came saying so and so is a Shahid. The Messenger of Allah (Sallallahu a’laihi wa sallam) said, “No, I’ve seen him Hellfire because of a piece of cloth which he took from the booty.” (Muslim)
Abu Hurairah narrated: The Messenger of Allah (Sallallahu a’laihi wa sallam) stood one day and spoke to us. He (Sallallahu a’laihi wa sallam) mentioned Ghalul and warned us. He (Sallallahu a’laihi wa sallam) said, “I don’t want to see one of you on the Day of Judgment carrying a camel on his back saying , ‘O Messenger of Allah help me!’ I will say, ‘I cannot help you. I have already conveyed a clear message to you’. I don’t want to see one of you on the Day of Judgment carrying a horse on his back saying , ‘O Messenger of Allah help me!’ I will say, ‘I cannot help you. I have already conveyed a clear message to you.’ ” (Bukhari)
Abdullah bin Shaqiq narrates from a man from Balqin who said: I went to the Messenger of Allah (Sallallahu a’laihi wa sallam) when he (Sallallahu a’laihi wa sallam) is in Wadi al Qura and he (Sallallahu a’laihi wa sallam) was examining a horse. I asked him, “O Messenger of Allah (Sallallahu a’laihi wa sallam), what do you say about the booty ?” He (Sallallahu a’laihi wa sallam) said, “To Allah belongs one fifth of it. The rest belongs to the army,” I said, “So no one has a priority in it over someone else?” He said, “No, you don’t even have right of ownership over an arrow that you pull out from your own body.” (Al Bayhaqi)
The punishment of Ghalul in the Hereafter is that whatever was taken will come on the Day of Judgment and witness against such a person. The punishment in this world is that whoever takes anything from the booty would have all of his belongings taken and burnt except what he has taken and that should be returned to the army. The opinion of Malik, Shafi’ and Abu Hanifah is that the Amir of the army should punish him as he deems appropriate.
Imam Abu Bakr bin al Munthir says that all the scholars agree that the Mujahidin are allowed to eat the food of the enemy and feed their animals too (it is not Ghalul to do so)
Rulings regarding Salb:
There is a difference of opinion on salb .
(1) Some scholars say the fighter takes salb off a soldier he kills with the following conditions:
– The killed soldier was fighting with the enemy.
– The killed soldier had the ability to defend himself. So if he was killed while he was injured or asleep the mujahid cannot take his salb .
– If the soldier was withdrawing and was killed from behind then there is no salb .
Other scholars say that the mujahid takes the salb in every situation he kills an enemy’s soldier, whether the soldier was attacking or retreating, and their evidence is the previously mentioned hadith of the story of Abu Salamah to support this view.
(2) Is it necessary for the Imam to state that whoever kills and enemy gets his salb or is salb taken by default?
Al Shafi’i and Ahmad say the mujahid gets the salb whether the Imam states that or not. Imam Abu Hanifah states that if the Imam does not state that salb goes to the mujahid who kills the enemy then it falls under the Ghanimah (booty).
(3) Al Awza’i states that the Mujahid can take all the salb of the killed enemy soldier even his clothes and leave him naked. This is also the opinion of Ahmad. Al Thawri and Ibn Munther discourage that because it exposes the awrah (parts of the body which should be covered).
Rulings regarding Muslim POWs:
(1) If a Muslim POW is able to escape then it is mandatory on him to do so. If he can escape and capture with him any enemy, take any of their property, or kill among them then he should.
(2) If the POW is released with conditions that he agrees to then he must fulfill those conditions in order not to end up harming other Muslim POWs or causing the enemy to think that the Muslims are untrustworthy.
(3) The Muslim POW is not allowed to marry a Christian or a Jew in the land of disbelief because the children in this case might follow their mother’s religion. And he is not allowed to marry a Muslim because they could force them and their children to apostate or they could be enslaved. The Muslim POW should be patient until they return to Muslim land.
Rulings regarding the enemy POWs:
(1) The stronger opinion is that the Imam should do what is most beneficial for the Muslims: To execute them, to free them without anything in return, to free them in return of freeing Muslim POWs, to charge for their freedom , or to enslave them.
(2) The ruling on women and children POWs is that they become slaves by default.
(3) If a Muslim kills a POW, the Amir has the right to punish him by Ta’zeer (a punishment less than the least punishment of a major sin. Usually it is less than 10 lashes)
(4) If a man is taken as a POW along with his wife some scholars say that the marriage contract becomes null while others say it remains. The same is said when the husband alone falls into captivity. But if a woman is taken as a POW then if she is married her marriage contract is nullified.
(5) When children fall into captivity with their parents are they considered Muslim or non-Muslim?
The opinion of al Shafi’, Ahmad, Malik, and Abu Hanifah is that they follow the religion of their parents and are considered non-Muslim. If captured with the father then Ahmad considers them to be Muslim, while the other three Imams state that they are not. If the children are captured with their mother then according to Ahmad they are Muslim. Al Sh afi’ and Abu Hanifah say they are not. If the children are captured alone then according to all the Imams except al Shafi’ they are Muslim.
According to the majority opinion the captured families should not be separated.
(1) Offensive jihad without the permission of the Imam (Muslim leader) or whoever represents him is makruh (discouraged) but it is not Haram (illegal). There are exceptions to the discouragement:
(a) If jihad is urgent and does not accept delay and seeking permission would delay it then permission of the Imam is not needed.
(b) If the Imam neglects jihad and he and his soldiers are attached to this world. In this case the permission of the Imam is not to be sought because the Imam has suspended jihad. The mujahidin should therefore resume it.
(c) If the person cannot seek permission because he knows in advance that the Imam would not give him permission.
(d) Ibn Qudamah states, “The absence of the Imam should not be a reason for the delay of jihad.”
(2) It is Sunnah for the Amir (commander) of the army to take a pledge from the soldiers not to turn their backs in battle as the Messenger did in Hudaybiah.
(3) It is also Sunnah for the Amir to:
(a) Send reconnaissance missions and to gather information about the enemy.
(b) Set out on Thursday morning if that is possible.
(c) Divide the army into brigades under separate banners and to have each brigade have its own distinguishing insignia.
(d) To employ each and every method that would terrorize the enemy
(e) Seek assistance from the weak; [the Messenger of Allah (Sallallahu a’laihi wa sallam) said, “You are given victory through the weak among you.”]
(f) Make dua when the armies meet.
(g) Encourage the mujahidin to fight and be steadfast.
(h) Make takbir along with the army without extravagance in raising voice.
(4) “O you who have believed, when you encounter a company (from the enemy forces) stand firm and remember Allah much that you may be successful.” (Surah Al-Anfal, 8 : 45)
This remembrance should be done silently because raising voices with Thikr in battle is discouraged if it is one person but if it is by a group then it is acceptable if it weakens the moral of the enemy.
The companions used to dislike raising voices in battle. (Al Qurtubi)
(5) It is mandatory to convey the message of Islam to whoever did not hear it and this should be done before fighting. But if they did hear about Islam before, then calling them to Islam again is not necessary before fighting them but it is good to do since they might become Muslim this time. It appears from Sunnah that giving dawa prior to fighting is not necessary with special operation groups, which are groups of mujahidin sent for a specific mission such as the group sent to assassinate Kab bin al Ashraf for example.
(6) Jizyah is accepted from the Jews and Christians. If they pay it they are allowed to practice their religion. Jizyah is also accepted from those who are similar to the people of the book and might have received a book from Allah such as the Zoroastrians.
(7) If the enemy attacks Muslim land and the Muslims did not fight them, then their neglect of jihad is the same as turning one’s back in the battlefield (a major sin). This is if the Muslims are more than half the number of their enemy. But if they are too few to fight than they can fortify themselves and wait for reinforcements.
(8) If the Imam invites the Muslims to jihad that is originally classified as fardh kifayah (collective duty), it becomes a fardh ayn (individual duty) on each one of them because it is mandatory to obey the Imam. The oppression of an Imam should not prevent from jihad with him. It is acceptable to fight with an Imam who drinks or commits major sins because these sins affect him but jihad benefits everyone.
(9) It is not allowed to kill women and children if they don’t fight but if they do fight then there is no doubt that it is allowed to kill them. It is also the consensus of scholars that if an old man fights then it is allowed to kill him. That also applies to the weak, blind, and handicapped. The ruling also applies if any of the above aided in fighting the Muslims with their intellect.
The opinion of the vast majority of scholars is that monks and anyone devoted to worship in monasteries are not to be killed.
The opinion of the majority of scholars is that merchants, skilled workers and employees should not be killed if they are not involved in fighting Muslims.
(10) It is allowed to fire catapults on the disbelievers and to flood them with water even if that would lead to the death of Muslim POWs in their hands since this is a necessity of war.
(11) If the enemy uses Muslim human shields:
If it is not necessary to strike the disbelievers than they are left in order to protect the Muslims.
If there is a need to strike at the disbelievers such as if there is a battle going on, or if we leave them alone they would gain victory over Muslims, then they should be attacked even if that would lead to the loss of life among the Muslim human shields.
(12) It is allowed to ambush an enemy at night even if there are women and children among them since that is a necessity of jihad.
(13) The ruling regarding trees and plants in the land of the disbelievers falls into three categories:
(a) Trees that the Muslims need to cut down: In such case it is allowed to cut down. Such as when these trees are close to the fortresses of the disbelievers or when trees get in their way or prevents them from widening their roads or if the disbelievers are cutting down the trees in the Muslim lands.
(b) Trees that if cut down would harm the Muslims: Such as trees needed for their cattle. In such a case it is illegal to cut them down.
(c) Trees that if cut down wont cause any harm to the Muslims: If cutting them down would harm the disbelievers or anger them then they could be cut down
(14) The Muslim who discourages others from fighting should be banned from joining any army of Jihad. If he did go out then he should not receive any portion of the booty or any due compensation as a punishment for his discouragement of fighting.
The discourager is the one who would say for example: “The enemy is too strong ” or “our horses are weak” or “we cannot beat them ” or such statements that imply that we should not fight.
Close to that is the person who spreads rumors that weaken the Muslims.
(15) It is allowed for the mujahid to take from Zakah even if he is wealthy. He can only take money for his necessities of food, clothing, travel expenses, and to purchase needed arms. He can also give his family from this money.
Al Qurtubi says that “fee sabeelillah” (in the ayah of Zakah) refers to the ones in jihad and Ribat .
(16) If the enemy is more than double the size of the Muslim army then the Muslims are allowed to withdraw, if not then they must fight.
(17) The scholars have three views on seeking assistance from non-Muslims in combat:
(a) It is allowed if the Muslims take precautions from any possible betrayal from the non-Muslim side.
(b) It is allowed to have them only in lowly roles such as service.
(c) It is not allowed at all
(18) If a non-believer embraces Islam then his blood and wealth are protected whether he became a Muslim in the state of piece of the state of war. This is the consensus of scholars. But if he becomes Muslim after falling into captivity then his blood is protected and the Imam then has the choices of enslaving him or freeing him. Imam Ahmad says that the Imam does not have the option but to enslave such a person.
(19) If enemy soldiers lose their way and end up in a Muslim town, they and their belongings become Fay’ for the Muslims of that town.
(20) If enemy soldiers enter the land of Islam without an agreement then it is allowed to kill them and take their property.
(21) I asked some of the great scholars of the Shafi’ school about the businessmen who are from the land of the enemy and come to do business in Muslim land, is it allowed to fight them at sea before they reach our ports? They said: They can be fought before they get to our ports and even after they get to our ports.
(22) If enemy businessmen enter Muslim territory by permission to do business then the Muslims should not transgress against them.
(23) If a Dhimmi (a Christian or Jew living in Muslim territory who pays jizyah ) wants to join the enemy in their fight against Muslims he should be prevented from doing so.
(24) There is a difference of opinion on beheading the disbelievers and then transporting their heads to a different location:
Some consider it to be illegal because this is an act of mutilation and is imitating the disbelievers since these are their actions.
Other scholars say that it is allowed and they cite the incident when the head of Rifa’ah bin Qays was presented to the Messenger of Allah (Sallallahu a’laihi wa sallam) and when Fayruz al Daylami brought to the Messenger of Allah (Sallallahu a’laihi wa sallam) the head of al Aswad al Ansi who claimed prophethood.
(25) Can a Muslim grant protection to a disbeliever? The majority of the scholars say a Muslim can grant a disbeliever or a small number of them protection and the Muslims should honor that.
(26) The spy cannot be given protection and must be killed. If a disbeliever who was already granted protection turns out to be a spy then he should be killed.
(27) If the Muslim is weak in the land of disbelievers and is not able to publicly show his religion then it is Haram to live there. If he is unable to emigrate then he is excused. If the Muslim is strong and able to publicly practice Islam than they can live in the disbelievers land but it is still recommended to move to a Muslim land.
(28) Scholars consider that a Muslims should not travel to the land of the disbelievers for business and they consider the one who does that to be fasiq . It is also Haram to sell the disbelievers weapons and whoever does that should be punished.
(29) Scholars say that Muslim women should never be taken to the land of the enemy unless they are within a large Muslim army to protect them. They also say that Muslim women should not settle in the dangerous borderlands of the Muslims.
(1) Trans. Note: Salb is the personal arms and equipment found on a dead enemy soldier. It includes everything found with a soldier. There is a difference of opinion however on cash money and gold. Some consider it part of salb while others consider it part of Ghanimah . So salb is different from Ghanimah which has been translated here as booty. The booty is items that belong to the army in general (like their food ration, ammunition, heavy equipment) and all the civilian property in a land opened by force. A land that is opened by an agreement depends on the terms of the agreement and does not fall under booty. Booty must be submitted to the army commander and then it is divided based on the rules of Shariah . But the rulings on Salb are different
By: Abi Zakarya ad-Dimashki ad-Dumyati Ibn Nuhash, From the book : THE BOOK OF JIHAD