Treaties between Muslims and non-Muslims

introduction
peace was the basis of muslims’ treaties with the other. through such treaties the two sides – muslims and the other – live in a state of peace, conclusion of truce or reconciliation.

“as long as relations are based on peace, any treaties are either aimed at ending an accidental war and returning to the state of lasting peace or meant to recognize peace and establish its pillars in order to rule out any possible assault; otherwise it is caused by a breach of such treaties.”[1]

throughout long eras, islamic countries signed treaties and made covenants with non-muslim countries. such agreements included several commitments, rules, conditions and principles, which constitutes a development in the islamic international law.

definition of treaties and agreements
treaties are the agreements, pledges or covenants signed by islamic countries with other countries in both peace and war. the treaty in the latter case is called peaceableness, reconciliation or peacefulness and under which reconciliation is reached and war is over. allah, exalted be he, says: {but if the enemy incline towards peace, do thou (also) incline towards peace, and trust in allah.}[al-anfal:61]

samples of islamic treaties
the prophet’s treaty with jews of medina
the treaties muslim countries signed with others included a covenant made by the prophet, pbuh, with jews of medina when he came to it. the covenant stipulated the following: “the jews will contribute towards the war when fighting alongside the believers. the jews of bani awf will be treated as one community with the believers. the jews shall maintain their own religion and the muslims theirs. this will also apply to their freedmen. the exception will be those who act unjustly and sinfully. by so doing they wrong themselves and their families. the same applies to jews of bani al-najjar, bani al harith, bani saeda, bani jusham, bani al aws, and al shutayba. those in alliance with the jews will be given the same treatment as the jews. the jews must bear their own expenses (in war) and the muslims bear theirs. if anyone attacks anyone who is a party to this pact the other must come to his help. they (parties to this pact) must seek mutual advice and consultation. loyalty gives protection against treachery. those who avoid mutual consultation do so because of lack of sincerity and loyalty. a man will not be made liable for misdeeds of his ally. anyone (any individual or party) who is wronged must be helped. anyone who acts loyally or otherwise does it for his own good (or loss). allah approves the truth and goodwill of this covenant. the contracting parties are bound to help one another against any attack on yathrib [medina]. if they are called to cease hostilities and to enter into peace, they shall be bound to do so in the interest of peace; and if they make a similar demand on muslims it must be carried out except when the war is against their religion. everyone (individual) will have his share (of treatment) in accordance with what party he belongs to. this document will not (be employed to) protect one who is unjust or commits a crime (against other parties of the pact). allah is the protector of the good and god-fearing people.”[2]

therefore, this covenant was meant to recognize the state of peace between jews and muslims and a source of safety among them to ensure there would be no war. it also showed that it aimed at “establishing good neighboring and pillars of justice. it is noticed that the covenant encompassed a frank statement of defending the wronged; it is a fair covenant meant to establish peace and shore it up with justice and backing the weak.”[3]

the prophet’s treaty with christians of najran
the prophet’s biography books mentioned rich samples of such treaties, which included, for example, a treaty the prophet, pbuh, signed with the christians of najran, which stipulated: “najran and its people enjoy protection from allah and the prophet muhammad for themselves, their religion, land, funds and the people who were not present and others who were present and their clan and followers… and all that they have, either few or many…”[4]

the prophet’s treaty with bani damurah
the prophet’s treaties also included one with bani damurah[5], headed by makhshiy ibn amr al-damuhriy. the prophet also made a covenant with bani midlaj, who lived in yanbu‘area in jumadah i in the second year of hegira. he did the same with juhaynah tribes, which were large tribes that lived in the northwestern part of medina.[6]

the covenant of umar

among the islamic treaties is also a covenant made by the commander of the faithful umar ibn al-khattab, may allah be pleased with him, with the people of ilia’ (jerusalem)[7], which was called the covenant of umar.

given such treaties and others, we find that muslims try to live in a calm, peaceful atmosphere with their neighbors and that they had never sought fighting, but rather always preferred peace to war and concord to discord.

rules and conditions of treaties in islam
islam has set rules and conditions for treaties to ensure they comply with sharia and their own objectives.

great imam mahmud shaltut[8], may allah have mercy upon him, said: when islam entitles muslims to sign treaties for the objectives they deem necessary, it set three conditions to ensure the validity of the treaty:

firstly: they should not do prejudice to the basic law and general sharia of islam, which constitute the chief element of the islamic personality. this was mentioned in a saying of the prophet, pbuh, “each condition not included in the book of allah is invalid”[9]. this means that the book of allah rejects such a condition.

under such a condition, islam does not recognize the legitimacy of any treaty, whereby the islamic personality is harmed and which enables enemies to attack islamic places or weakens muslims through breaking their ranks and shattering their unity.

secondly: the treaty should be based on mutual good-will from both its parties. therefore, islam deems valueless any treaty based on compulsion or roaring of (jets). this is a condition stipulated by the nature of contract. if it is a contract for exchanging a certain commodity – either buying or selling – it should include the element of satisfaction: { but let there be amongst you traffic and trade by mutual good-will} [al-nisa’:29]. so what about the treaty, which is a contract of life or death for the nation?

thirdly: the treaty should encompass clear-cut objectives and features and define obligations and rights in a way that leaves no room for interpretation or playing on words. the reason for the failure of treaties by modern civilized countries – which claim they seek peace and human rights – and such failure led to successive world catastrophes was nothing but that way; the way of ambiguity and using puns in drafting treaties and determining their objectives. a relevant warning came in such a quranic verse: {and take not your oaths, to practise deception between yourselves, with the result that someone's foot may slip after it was firmly planted, and ye may have to taste the evil (consequences) of having hindered (men) from the path of allah}[al-nahl:94]. deception in the verse means the covert one that renders anything corrupt[10].

the necessity of honoring covenants
quranic verses and the prophet’s hadeeth confirmed the necessity of fulfilling covenants. this includes the quranic verse: {o ye who believe! fulfil (all) obligations}[al-ma’edah:1], and the quranic verse: {and fulfil the covenant of allah.}[al-an‘am:152]and the quranic verse: {and fulfil (every) engagement, for (every) engagement will be enquired into (on the day of reckoning).}[al-isra’:34], and there are many other verses stressing such a great meaning.

as for they sayings of the prophet, pbuh, they include what narrated by abdullah ibn amr, may allah be pleased with both of them, that the prophet said: “whoever has (the following) four characteristics will be a pure hypocrite: "if he speaks, he tells a lie; if he gives a promise, he breaks it, if he makes a covenant he proves treacherous; and if he quarrels, he behaves in a very imprudent evil insulting manner (unjust). and whoever has one of these characteristics, has one characteristic of a hypocrite, unless he gives it up."[11]anas, may allah be pleased with him, said the prophet said: “every betrayer will have a flag on the day of resurrection”[12]. it was narrated that the prophet said: “he who had a covenant with a group of people, it is impermissible for him to break it or expand it till this covenant expires or is thrown back to them, (so as to be) on equal terms.”[13]. in sunan abu-dawud[14], the prophet said: “he who does injustice to a covenanter, aggrieves him, overburdens him or takes from him anything he is unwilling to give, i will oppose him in the day of resurrection.”[15]

most of jurists – all see that jihad is with both pious and wicked emirs – opine that jihad is not with the emir who does not honor covenants. unlike the international law in contemporary civilization, the change of circumstances is not a justification for breaching covenants. furthermore, if muslims fail, in certain circumstances, to meet their commitments, they should observe the commitments of the other party. a piece of evidence of that is the famous story in which muslim commander abu ubaydah ibn al-jarrah took control over homs and took jizyah (poll tax required from non-muslims living in an islamic state)from its people and when he was compelled to pull out of it, he returned back jizyah to its people, and said: “we returned you your money because we were informed of the crowds gathered against us, and you stipulated that we protect you and we are not able to do that. so we returned you what we took from you. we will abide by the stipulation and what we agreed on with you if allah granted us victory on them.”[16]

there are many of such examples from islamic history. the change of circumstances and national interests is not a justification in islam for breaching covenants. nor such a breach is justified by that muslims see in themselves a center of power in comparison to the other party. this was frankly mentioned in the quranic text; allah, exalted be he, says: {fulfill the covenant of allah when ye have entered into it, and break not your oaths after ye have confirmed them; indeed ye have made allah your surety; for allah knoweth all that ye do.}[al-nahl:91]. we should take into consideration the fact that such an emphasis on honoring covenants came at a time when honoring covenants was not a basic rule.[17]

this is the ruling of islam in treaties signed by islamic countries with other countries with the aim of preserving peace. and we are required to meet them, preserve them, not to break them unless the enemy does that. but if the enemy does not break the treaty, nor did it show enmity to muslims, the muslims should honor it. allah, exalted be he, says: {(but the treaties are) not dissolved with those pagans with whom ye have entered into alliance and who have not subsequently failed you in aught, nor aided any one against you. so fulfil your engagements with them to the end of their term}[al-tawbah:4].

sheikh mahmud shaltut said: “honoring covenants is a religious obligation, for which each muslim will be asked by allah and breaching them is betrayal.”[18]

therefore, islam has preceded all other nations with their legislation in the field of codifying international treaties. it rather surpassed them in terms of its justice and tolerance with its enemies. more importantly, such precedence was a practical, rather than theoretical, one. this is proven through the treaties muslims signed with their enemies since the start of the era of the prophet passing through the era of caliphates and other following islamic eras.

securing messengers in islam
as for the issue of securing messengers, the islamic sharia was fully clear in that point. quranic texts and the prophet’s acts showed that it is impermissible at all to kill messengers. islamic sharia jurists oblige muslims’ commander to provide protection to the person of the messenger and ensure he enjoys the freedom of belief and performs his duties in complete freedom.[19]

as part of securing the messenger, it is not permissible to take him as a captive, not it is permissible to hand him over to his own country if it demanded that and he rejected, even if the muslim country is threatened with war; because handing him over is considered an act of betrayal against him. this is because a messenger enjoys protection in that muslim country.[20]

the messenger’s mission has a great role in striking reconciliation or forging an alliance or preventing war. therefore, all needs should be met and basic requirements be provided, not for his person, but for the mission assigned to him. he represents the body that sent him even if he holds another opinion as long as he accepted the mission. the receiver should take that into account.

abu rafe narrated: quraysh sent me to prophet muhammad. when i saw him, faith was thrown into my heart and i said: o the prophet of allah, i’ll never return to them. the prophet said: “i never breach the covenant, nor do i hold messengers. return to them. if your heart contains what it has now, return to us.”[21]

in his book mogamma al-zawaed wa manbaa al-fawaed [collection of additions and source of benefits], al-haithamy[22]included a set of the prophet’s sayings under a chapter titled “prohibiting the killing of the messengers”. among such sayings is what abdullah ibn masud said when ibn al-nawwahah was killed: this and ibn athal had come to the prophet as messengers of musaylima al-kadhab [the liar]. the prophet said to them: “do you testify that i’m the messenger of allah?” they said: we testify that musaylima is the messenger of allah. he said: “if i were to kill messengers, i would have beheaded you.”[23]al-haythamy said: the norm is that messengers are not killed[24].

accordingly, the islamic civilization preceded western ones by more than 1400 years in laying down the civilizational human foundations of messengers. such [western] communities did not recognize such foundations until quite recently[25].

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[1] muhammad abu-zahrah, al-‘ilaqat al-dawliyah fil-islam(international relations in islam), p 79.

[2]ibn hisham, al-sirah al-nabawiyah [the prophet’s biography], 1/pp 503-504, and ibn kathir al-sirah al-nabawiyah [the prophet’s biography], 2/ pp322-323.

[3]muhammad abu zahra, , al-‘ilaqat al-dawliyah fil-islam(international relations in islam), p 81

[4]al-baihaqiy: dala’el al-nubuwah, chapter of najran delegation, 5/485, abu yusuf: al-kharaj, p72, ibn sa‘ad: al-tabaqat al-kurbra, 1/288

[5]bani damurah tribe is an arab subdivision of adnan tribe, which lived in widan, western medina.

[6]see ibn hisham: al-sirah al-nabawiyah (the prophet’s biography), 3/143

[7] see the text of the covenant: al-tabary, tarikh al-ummam wal-muluk (history of nations and kings), 2/449-450

[8]mahmud shaltut (1310-1380 ah/ 1893-1963 ad) is an egyptian exegete of qura’n, born in bihira governorate and graduated from al-azhar university and was appointed as deputy dean of the faculty of sharia and then grand imam of al-azhar (1958) till his death.

[9]al-bukhary: book of conditions, chapter of writings and impermissible conditions that run counter to the book of allah (2584), muslim: book of releasing, chapter of loyalty to he who gives release (1504), ibn maja from ‘a’esha (2521) and the phrasing is his.

[10]tawfiq ali wahabah: al-mu‘ahadat fil-islam [treaties in islam], pp 100-101.

[11]al-bukhary: book of jezyah and reconciliation, chapter of the sin of whoever breaches promises (3007), muslim: book of faith, chapter of hypocrite characteristics (58).

[12]al-bukhary: book of jezyah and reconciliation, chapter of the sin of the betrayer of the pious and the dissolute (3015), muslim: book of jihad and marching, chapter of prohibiting betrayal (1735).

[13]abu-dawud: book of jihad, chapter “covenant between imam and enemy” (2759), al-termidhiy from amr ibn absah (1580), the phrasing is his, al-albany said it is correct, sahih al-jamia (6480).

[14]abu-dawud: is sulayman ibn al-ashaath ibn ishaq ibn bashir al-azdy al-sigistani best known as abu-dawud (202-275 ah), imam the people specialized in hadith in his time. he is the author of his famous book (sunan abu-dawud). he was born in sigistan in persia and died in basra. see: al-dhahaby: siyar aalam al-nubala’ [biographies of outstanding nobles] 13/203.

[15]abu-dawud: book of al-kharaj, chapter of coexistence with people of book if they had disagreement in trade (3052), al-albany: sahih al-jamia (2655).

[16]abu-yusuf: al-kharaj, p81.

[17]salih ibn abdul-rahman al-hasin: al-ilaqat al-dawliyah bayn manhaj al-islam wal-manhaj al-hadary al-moasir [international relations between the approach of islam and the contemporary civilizational approach] p51.

[18]mahmud shaltut: al-islam aqidah wa shariah [islam is a doctrine and sharia] p457.

[19]see ibn hazm: al-mohalla 4/307.

[20]abdul-karim zidan, al-sharia al-islamiyah wal-qanun al-dawly al-aam [islamic sharia and public international law], p169.

[21]abu dawud, book of jihad, chapter of ‘imam is sought in covenants’ (2758), ahmed (23908)- shuayb al-arna’ut said: authentic hadeeth.

[22]ibn hajar al-haythamy: is abul-hassan ali ibn abi bakr ibn sulayman al-shafey al-misry (735-807 ah- 1335-1405 ad), among the most famous of his books is: mogamma al-zawaed wa manbaa al-fawaed[collection of additions and source of benefits]. see: al-zirikly: al-aalam [outstanding figures], 4/p266

[23]abu dawud: book of jihad, chapter of messengers (2761), ahmed (3708), the phrasing is his. shuayb al-arna’ut said: authentic hadeeth. al-darmy (2503), hussein salim assad said: good chain of narrators, but authentic hadeeth.

[24]al-haithamy,mogamma al-zawaed wa manbaa al-fawaed [collection of additions and source of benefits], 5/p378.

[25]suyahl hassan al-qatlawy: diplomasyet muhammad [muhammad’s diplomacy], a comparative study on the contemporary international law, p182.