By Muftī-i Aʿẓam (Grand Muftī) Muftī Muḥammad Shafīʿ ʿUthmānī
(One of the obligations resting on an Islamic government is the assurance and guarantee of the rights of the non-Muslim population; the life, property and honour of non-Muslims enjoys the same protected status just as it does for Muslims. In this short treatise the relevant Qurānic verses, aḥādīth as well as the practice of the Khulafā-e-Rashidīn (Rightly Guided Caliphs) have been gathered together which all in all highlight this responsibility of the Islamic government.)
In article 13 of the constitution, the following is stated with reference to verses of the Qur’ān that it is the obligation of an Islamic government to protect the life, property and honour of non-Muslim citizens in the same manner it does for its Muslim citizens. Below, further explanation of those verses will be cited in the light of other verses, prophetic traditions and the practice of the rightly guided caliphs.
Islamic Law is a Great Favour on Humanity
It is only a distinguished quality of Islam that it has not only ordered good conduct with non-Muslim residents who have negotiated a pact with the government but with enemies who are waging war against them. It has maintained rights for enemies; not merely on paper like the governments of today but in application and practice. Its followers have been strictly commanded to abide by these rules and severely warned if contravened. The Glorious Qur’ān states:
“Let not detestation [for some people] induce you to be unfair. [Rather,] be fair! For to do so is, indeed, closer to the fear of Allah.”
This verse includes all non-Muslims, whether they are living under Muslim rule or not and it has been imposed upon all Muslims to exercise justice and equality between them. Furthermore, in another verse Allah says:
“Furthermore, fight in the path of Allah all those who fight you. But do not commit aggression. Indeed, Allah does not love those who commit aggression.”
This is the guidance of the Qur’ān in favour of those warriors who have come into battle to take the lives of Muslims that they are not to portray any sort of injustice or oppression; which is further elucidated in those traditions where in the army is advised before their departure. For example, the Prophet advised: “Go forth in the name of Allah and His help and in the name of the religion of the Messenger of Allah. Do not kill an old man, a child, an adolescent or a woman. Do not steal from the spoils of war. Do not commit treachery. Do not mutilate the bodies of the killed.” And in other narrations, “Do not interfere with those non-Muslims who are busy worshipping in their places of worship.”
All this concludes to this that even in the heat of the battlefield, Islam has permitted the killing of only those who have come into combat with a weapon. Even at this crucial moment, women, the elderly, children, saintly and devout are all protected from the swords of Muslims. In one battle, upon seeing the corpse of a woman, the Prophet ﷺ displayed remorse and warned that these were the rights of non-Muslims despite being under no rule and despite waging war against them and being in the midst of battle.
Non-Muslim Residents of an Islamic State
The teachings and strict directives of the Prophet ﷺ for the safety of non-Muslim residents of an Islamic state or those who have agreed to a truce are as follows:
(1) “Indeed! Whoever oppresses a non-Muslim under rule or acts partially or burdens him with work which is beyond his capability or takes his property without his heart’s content, I shall be his advocate on the Day of Judgement [i.e. fighting his case].”
(2) “Whoever oppresses a dhimmī (protected non-Muslim), I will take action on their behalf; and I will surely defeat my opposition.”
(3) “Whoever killed a Mu’ahid (a person who is granted the pledge of protection by the Muslims) shall not smell the fragrance of Paradise though its fragrance can be smelt at a distance of forty years (of travelling).
(4) “My lord has forbidden that I oppress a Mu’ahid (a person who is granted the pledge of protection by the Muslims) or anyone else otherwise.”
(5) “Verily the wealth of a Mu’ahid (a person who is granted the pledge of protection by the Muslims) is not permissible [to take] except where it is justified by law.”
(6) “The Muslims are bound to their agreements [with other non-Muslims] until they conform to what is the truth.”
(7) “You will soon wage war with nations upon whom you will gain victory. They will agree on a peace treaty with you in order to protect their property and children. Do not take anything besides that [wealth] which you agreed upon.”
(8) “Whoever grants a man protection for his life and then kills him, I have nothing to do with him even if it may be a non-Muslim.”
(9) “To fulfil a covenant with fairness is a part of imān.”
(10) “When you conquer Egyptian lands, treat them with kindness as you have a covenant with them and are related through marriage.”
The Practice of the Rightly Guided Caliphs
Instructions of Ḥaḍrat Abū Bakr & Reverence for the Non-Muslim Religious Leaders
When the first Caliph of Islam, Ḥaḍrat Abū Bakr, in conformity with the desire of the Prophet, sent a military detachment to Syria under the leadership of Ḥaḍrat Usāmah bin Zayd, he gave the following advices: “Do not be disloyal, nor act treacherously. Do not steal from the spoils of war or mutilate the bodies of those killed. Do not kill a child, the elderly or a woman. Do not cut date trees nor burn them. Do not cut fruit bearing trees. Do not slaughter a goat, cow or camel except for consuming. You will soon pass people who have dedicated themselves for worship in places of worship, so leave them for that what they have dedicated themselves for.” The treaty which was written by the second Caliph, Ḥaḍrat ʿUmar to the dhimmī’s (protected non-Muslims) is well-known and renowned in the books of tradition and history. Generally, Islamic governments have practiced in accordance to this. Below, an excerpt of this treaty will be presented which was written for the dhimmī (protected non-Muslim) residents of Al-Quds (Jerusalem).
The Pact of Ḥaḍrat ʿUmar with the Christians of Al-Quds (Jerusalem) (granting protection of life, wealth and religious freedom)
“In the name of Allah, the All-Merciful, the Mercy-Giving. This is the pact which the servant ʿUmar has offered for the residents of Iliya (the Christians of Jerusalem). They have been granted security with regards to their lives, properties, places of worship and their crosses (religious symbols) whether they are healthy or poorly. They have also been granted security in terms of their traditional practices such that no Muslim is permitted to reside in their place of worship nor are they permitted to demolish it and neither any deficiency will be made. Similarly, no deficiency will be made by way of seizing any land adjoining churches or impose any restrictions on crosses. Nor will anything be unrightfully taken from their wealth. They will not be pressured to forego their religion and nor will any of them be caused grievance. Furthermore, no Jew will be permitted to reside with the Christians in Iliya.1 (After mentioning the lengthy details of the pact, the following was written.) Allah and His Rasul ﷺ, the Khulafā and all Muslims in general take responsibility to honour the contents of this pact, as long as these people continue to pay the jizyah (poll-tax). Ḥaḍrat Khālid bin Walīd, Ḥaḍrat ʿAmr bin ʿAṣ, Ḥaḍrat ʿAbdur Rahmān bin ʿAwf, Ḥaḍrat Muʿawiyyah bin abī Sufyān also bear testimony. This pact was written and testified to in 15A.H.
Non-Discrimination between Muslims & Non-Muslims
A Muslim citizen of the tribe Bakr bin Wail killed a Christian of Ḥira. The case was brought forward to Ḥaḍrat ʿUmar who ordered that the killer be handed over to the inheritors of the deceased. Although the inheritor was still in his mother’s womb, the killer was still put under the command of the child who then [upon becoming mature], opted to kill him in retribution.
Allowance for Non-Muslims, the Needy and Disabled
During the reign of Ḥaḍrat Abū Bakr, when the city of al-Hirah was conquered the pact which the conqueror, Ḥaḍrat Khalid bin Walid wrote for the non-Muslim residents of this city contained the following:
“Any elderly citizen who is unable to earn a livelihood, or afflicted with a calamity resulting in being excused, or was rich but became poverty-stricken and his, then taxes from such people will be alleviated, and he will be fixed an allowance from the treasury which will suffice for his family until he resides in Dar-ul-Islam.” Once Ḥaḍrat ʿUmar was leaving the masjid, he passed by a Christian man begging. Ḥaḍrat ʿUmar went over to him and asked him about his circumstances. Ḥaḍrat ʿUmar then declared “This was no justice that we took taxes from you in your days of youth and strength and then left you on your own device once you became old. Ḥaḍrat ʿUmar then ordered a sum to be paid from the treasury to the beggar for the rest of his life.
Justice in Social Dealings
It is narrated from Ḥaḍrat ʿAnas that a Coptic Christian from Egypt came to the court of Ḥaḍrat ʿUmar and complained of his oppression and sought refuge. The great Caliph replied, “You have come into good refuge [so don’t feel uneasy].” He then related an incident that occurred whilst he competing in horse-riding with Ḥaḍrat ʿAmr bin ʿAṣ. He recounted how he got the better of his opponent, however got whipped in turn for it, being told that he was the son of a chief. Hearing this, Ḥaḍrat ʿUmar immediately wrote a letter to Ḥaḍrat ʿAmr bin ʿAṣ, ordering him to immediately present himself along with that particular son. When he arrived, the Copt was summoned and handed a whip. He was then ordered to whip the son of Ḥaḍrat ʿAmr bin ʿAṣ. Ḥaḍrat ʿAnas, the narrator of this ḥadīth says that the Copt was whipping the son of Ḥaḍrat ʿAmr bin ʿAṣ, and we were content upon this beating until the Copt himself stopped beating him. Ḥaḍrat ʿUmar then ordered the Copt to place the whip on the head of Ḥaḍrat ʿAmr bin ʿAṣ. The Copt commented that it was his son who beat me and I have already taken retribution. Amr bin As did not do anything? It was then that Ḥaḍrat ʿUmar addressed Ḥaḍrat ʿAmr bin ʿAṣ, “Since when have you considered people to be your slaves whereas they were born free from their mother’s womb.” Once Ḥaḍrat ʿUmar was informed that some soldiers of a Muslim army in Syria, had promised security to a non-Muslim resident who had taken refuge on a mountain, by saying “Do not fear”, but when he descended, they killed him. Ḥaḍrat ʿUmar said that when you said ‘Do not fear’, you had promised a sense of security, thus killing him was a grave sin. He then reprimanded them very sternly. During the time of war in Syria, Ḥaḍrat ʿUmar was residing in Jābiyah when a non-Muslim citizen complained about some Muslims taking grapevines from his orchard. Ḥaḍrat ʿUmar came out with him and spotted a Muslim leaving the orchard carrying grapevines in his shield. Ḥaḍrat ʿUmar said in a stern voice, “You have also begun to do such a thing?” The person replied that he did this out of severe hunger. Consequently, Ḥaḍrat ʿUmar paid the owner the price of the grapes thereby making him content. A farmer from Syria complained to Ḥaḍrat ʿUmar that the Muslim army had ransacked his farm. Ḥaḍrat ʿUmar compensated him with ten thousand dirham’s from the treasury. A man once told Ḥaḍrat ʿUmar about a plot of land which bore a lot of produce but the tax stipulated on the land was less than it should be. Ḥaḍrat ʿUmar replied” This piece of land was acquired through a peace treaty. No matter how much more produce this land bears we cannot take any more money than that which was set at the time of the treaty”.
An Amazing Episode from the Conquest of Ḥimṣ (Homs)
From among the cities of Sham, a famous ancient city is known by the name Ḥimṣ (Homs). After initial warfare, the Muslims conquered it through a peace treaty. After conquering it, the trustworthy of this ummah, Ḥaḍrat Abū ʿUbaydah made it his hometown. Similarly, other conquered cities like Damascus were settled by Ḥaḍrat Khalid bin Walīd whilst Ḥaḍrat ʿAmr bin ʿAṣ took up residence in Jordan. The Byzantine Christians from these defeated cities fled to the Emperor (Heraclius) in Antioch. They narrated to him of how the Arabs had completely subjugated Syria and complained of his indifference. Ḥiraql (Heraclius) summoned a few erudite and highly esteemed individuals to his court from amongst the complainants and asserted that the Arabs lack in power, firmness and resources. So why is it that you can’t confront them in battle? They all bowed their heads down in shame. An old veteran from amongst them spoke out saying,
“The good character of the Arabs far outweighs our character; they worship at night and fast during the day. They do not oppress anyone and treat one another equally. Whereas, our condition is this that we drink alcohol, commit indecencies, we are disloyal and unfaithful, and oppress others. The effect of this is that there is ardour, passion and a sense of resistance among them which is absent in us.”
Prior to this, Ḥiraql (Heraclius) had already made a firm resolve to leave Syria as complaints were coming from various cities and districts but he was suddenly prompted to action for the sake of wounded pride or indignity, thus making immense preparations to wage war with the Arabs. He sent a nationwide call to arms, lining up an extensive army for battle and ordered them to leave for war. On the other side, the degree of influence Ḥaḍrat Abū ʿUbaydah’s justice and good morals had on the Christians was such that would secretly inform Ḥaḍrat Abū ʿUbaydah of the plans of the Roman Empire. When he received the news of the approach of an enormous army, he sought advice from his ministers. The greatest predicament was that all the inhabitants of Ḥimṣ (Homs) were Christians, following the same religion as Caesar. If the Muslims were to leave their women and children, and go out to face Ḥiraql (Heraclius), there was a danger that the Christians of Ḥimṣ (Homs) could cause harm. Therefore, in the initial stages, the intention of Ḥaḍrat Abū ʿUbaydah was to exile all the Christians from the city so no fear of harm remained for the inhabitants of the city. Nevertheless, Haḍrat Shuraḥbīl bin Ḥasana disapproved saying that, “O Amir (Leader). You have no right to do so as we granted them protection promising that they would be permitted to reside within the city with peace. Consequently, Ḥaḍrat Abū ʿUbaydah revoked his decision and the opinion of the general Muslims agreed upon that they will not single-handedly attack such a large army, but they will leave Ḥimṣ (Homs) and migrate to Damascus and after the strength of the Muslims has united, we will then attack. This proposed plan was practised upon and Amīr-ul-Muminīn, Ḥaḍrat ʿUmar was informed. He was deeply grieved by the fact that a conquered city has to be abandoned, however when learning that it was the unanimous opinion of the Muslims, he said, “It was Allah who united all the Muslims on one opinion for whatever wisdom and public interest.” When the Muslims had made a firm decision to leave Ḥimṣ (Homs), Ḥaḍrat Abū ʿUbaydah instructed the treasurer, Ḥaḍrat Ḥabīb bin Maslamah to return the jizyah (poll-tax) levied on the Christians as this was due on them in return for protection, however, as we are now unable to protect them, it is incumbent that we repay them in full. Consequently, hundreds of thousands were repaid which were taken from them. This good conduct and impeccable behaviour had such a profound effect on them that they took oath that they would not allow even our co-religionists [the Christians] to take control over this city; whenever, you get the opportunity to rule, you are welcome to rule here. They would supplicate that Allah return the Muslims back to our city again. The entire anecdote is recorded with detail in the books of history such as futūḥ-us-shām, futūḥ-ul-buldān, etc. and the return of the jizyah (poll-tax) is mentioned in the book of Qaḍī Imām Abū Yūsuf, Kitāb-ul-Kharāj.
The Sympathy of Muslims despite the Treachery of the Dhimmī’s (Protected Non-Muslims)
On the precinct of Sham, there was city by the name of Arabs which was also conquered by the Muslims by way of truce. This city was connected to the precinct of Rome. The Christians of Arabia would secretly inform the Romans of the private affairs of the Muslims. The governor, ʿUmayr bin Sʿād informed Ḥaḍrat ʿUmar. As a result, Ḥaḍrat ʿUmar issued the following firman: “Take an account of their land, property, animals and other provisions and give them double this amount and tell them to leave for another place. And if they are not happy with this arrangement, give them a respite of a year and then exile them.” It was this good conduct and spectacular demeanour which created this yearning and longing in the hearts of non-Muslims to come under the rule of Muslims rather than their own co-religionists. It is reported In the mainstream books of history that when the conqueror of Egypt and Alexandria, Ḥaḍrat ʿAmr bin ʿAṣ headed for Fusṭāṭ, along the way at Ṭarāna, he was welcomed by seventy thousand Christians and Bishops. They all had a crosier (a staff) in their hands and they all declared with one voice that they will stay under the rule of Ḥaḍrat ʿAmr bin ʿAṣ with complete submission and unflinching loyalty. Accordingly, Ḥaḍrat ʿAmr bin ʿAṣ wrote them a peace treaty.
Religious Freedom for Non-Muslims
All the pacts which have been negotiated with non-Muslims during the era of prophet-hood and the rightly guided caliphs, while equally promising security of life, property and welfare similar to which was promised for the Muslims, along with which they were openly advocated freedom of religious celebrations and symbols. The contents of a few peace treaties are presented below:
The Agreement with the People of Jurjān (Gorgan)
When Jurjān (Gorgan) was conquered, the wording of the agreement this, “They have been granted security for their lives, properties and freedom in religious affairs. No changes will be made to this agreement.”
Māh-e Dinār (Nahavand)
The peace treaty Haḍrat Hudhayfah bin Yamān wrote for the people of Māh-e Dinār (Nahavand) was such: “Their religious rituals and ceremonies will not be tampered with and their religious law will not be interfered with.”
The wording of the peace treaty of Azerbaijan was as follows: “They have been granted protection over their lives, wealth and religion.”
The settlement with the people of Mughan was as follows: “They have been granted protection over their lives, wealth and religious affairs.”
Mutual Consultation with Dhimmī (Protected Non-Muslims) Residents regarding Governmental Affairs
Whenever any matter arose which was related to the non-Muslims, Haḍrat ʿUmar would never take the matter forward without the approval and consultation of the dhimmī (protected non-Muslim) residents. When the welfare of Iraq was brought under discussion, the non-Arab leader were summoned to Madinah and questioned regarding the tax stipulated. The opinion of the people of Saquqas was mostly taken with regards to the affairs of Egypt. It was the practice of Ḥaḍrat ʿUmar when collecting the tax from Iraqi lands to gather its dhimmī (protected non-Muslim) leaders and take oath that they were not treated indifferently.
The Apparent Blessings of Islamic Justice and Equality
When Iraq was conquered, Haḍrat ʿUmar appointed ʿAmmār bin Yāsir the minister of defence. Haḍrat ʿAbdullāh bin Masʿūd was sent as a Qāḍī (judge). Haḍrat ʿUthmān bin Ḥunayf placed him in charge of cultivating the land and given instructions to not include those barren lands and areas where water does not reach in the official land measurements so that tax is not levied on them areas. Haḍrat ʿUthmān bin Ḥunayf as per instruction gave a report of the surface area to be 2.6 million jerīb’s (a traditional unit of land measurement in the Middle East). Haḍrat ʿUmar categorically laid out the details of the tax. For example, one jerīb of grapevines will be ten dirham’s per annum. One jerīb of date trees will be five dirham’s per annum. One jerīb of wheat will be four dirham’s per annum. One jerīb of barley will be two dirham’s per annum. This meagre amount was stipulated for tax while many things were excluded. In the first year, this area generated one hundred thousand dirham’s in taxes. Allah placed blessings in the land and just in the second year, the same lands were generating a mighty 200 million dirham’s. The relative ease of the transaction as well as the thoughtfulness of the Muslims had such an effect that in the course of a year the whole region became populated.
The Four Types of Non-Muslims & their Rulings
The jurists have categorised non-Muslims in terms of rulings into four types:
First Type: Ahl ul-Dhimmah (People of the Covenant)
A non-Muslim who has promised loyalty to an Islamic state and is living under Muslim rule. They known as ‘dhimmī’s in the terminology of the jurists which means that the relationship of the Muslims is not only on peaceful terms that they will not harm them but a relationship which guarantees safety and security. Then there are two types of dhimmī’s:
(1) Those non-Muslims who initially fought the Muslims but were forcefully overpowered by military prowess which compelled them to become citizens.
(2) Those non-Muslims who at the very outset conformed to becoming a part of the Islamic state like in the era of prophet hood, the people of Najran and during the reign of Haḍrat ʿUmar, the Banū Taghlib accepted come on terms with the Islamic state through a peace treaty. Both of the above parties hold equal rights in typical citizen rights and they are not bound to participate in military affairs. In contrast, a meagre tax is imposed upon them which is taken from the latter party in accordance to what was agreed upon in the peace treaty, while it is taken from the former in conformity to the set Islamic law. Furthermore, their financial situation is acknowledged and due leniency offered in its payment. The details of which are that a wealthy man would be taxed forty eight dirham’s per annum which would be taken in instalments of four dirham’s per month. An average person would be taxed half of the latter, i.e. twenty four dirham’s per annum which would total to two dirham’s per month. A lower class citizen on the condition that he is employed and earning is taxed twelve dirham’s per annum which is equal to one dirham per month. The unemployed, disabled, women and children are exempt from this tax. These are details recorded from the rightly guided caliphs; Haḍrat ʿUmar, ʿUthmān and ʿAlī. It is a well established fact that the aforementioned figures are not at all times binding; they may differ according to the place and time and what the ruler of the time deems suitable. Similarly, it may even be lifted in certain circumstances. (The details and rulings of these two types of dhimmī’s has been taken from hidāyah and its commentary fatḥ-ul-qadīr)
Type Two: Musta’min
A resident of a non-Muslim country who temporarily comes to a Muslim governed country for business or the like is known as a musta’min. The legal ruling regarding a musta’min is that:
(1) He is granted visa for only one year.
(2) No head tax is levied upon him.
(3) Business tax will be levied at the same rate which is levied upon the Muslims in their countries.
(4) If their countries abuse Muslims by usurping their wealth, the Islamic stage will not retaliate by doing the same to their merchants, rather it will charge the standard ʿushr (10% tax).
(5) Protection of a dhimmī’s (protected non-Muslim) life, property and honour is incumbent upon the Islamic state equally and exactly the way it protects its Muslim and dhimmī residents.
Type Three: Muʿahid or Ḥalīf
A citizen of a non-Muslim state who has a treaty of peace. The ruling is that the agreement made with them is abide by internally and externally (i.e. not be exploited with a sinister motive like the governments of today). It is narrated in a ḥadīth that the prophet said, “Any person who enjoys an agreement with another party of peace, it is an obligation upon him that he does not [in preparation for battle] tie a knot or untie one until the agreement come to an end or is legally terminated.” There was a covenant between Haḍrat Muʿawiyyah and the Byzantines, and he was going towards their country, and when the covenant was coming to an end, he intended to wait at the border of the Byzantine Empire and attack them the moment the covenant expired. Suddenly, he heard a man from behind saying, “O servants of Allah! Halt! (Let there be faithfulness and not treachery).” When they looked, they found that it was Haḍrat Amr bin ʿAbasah. Haḍrat Muʿawiyyah sent for him and questioned him (about that). Haḍrat Amr bin ʿAbasah narrated the above ḥadīth and reprimanded Haḍrat Muʿawiyyah for his actions. Immediately, upon hearing the above ḥadīth, Haḍrat Muʿawiyyah ordered his army to return.
Type Four: Ḥarbī
A non-Muslim who does not enjoy any of the above covenants. Islam has instructed even for them standard human rights; that their women, children and elderly are not be killed in the battlefield. Similarly, devout worshippers are not caused harm. Only those who confront the Muslims can be killed but their body parts may not be mutilated and disfigured. After a study of these four types of non-Muslims, one will conclude that the first three types are those of the mu’āhidīn (i.e. those who enter a pact or covenant with another). However, due to the various natures of these covenants, the jurists have given three different names, although in the aḥādīth the word ‘mu’āhid’ is equally used for all these three types like it has been established in a number of aḥādīth. The objective was not to gather and expound all the legislations relating to non-Muslims and the just conduct Islam exercises towards them. The purpose was to touch upon a few primary principles which would serve as an example and this will suffice.
The servant, Muḥammad Shafīʿ (May Allāh forgive him)
Friday 20th Safar, 1373/30th October 1953
(Jawāhir-ul-Fiqh, Vol: 2, Pg: 274-294)