Islamic Fiqh > Penalties (hudud) > Safe conduct, prisoners and espionage > The aman (safe-conduct): scope and rules
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Updated on 27 September 2026 at 3:52 AM
The aman is the safe-conduct by which a Muslim guarantees a non-Muslim combatant the safety of his person and property, or by which a non-Muslim obtains that guarantee inside the territory of Islam. This chapter establishes who may grant it, in what words, to whom, and what it entails for both parties.
This sheet follows the schools sheet by sheet: the messenger and the merchant who enter the land of Islam, the safe-conduct granted by rebels, the safe-conduct of the protected subject and of the child, the Muslim who enters enemy land with or without a safe-conduct, the safe-conduct by gesture, the extent of the authority to grant it, the wording used, and the capacity of the one who grants it.
If a combatant enters the land of Islam to trade, or claims to hold a safe-conduct or to be a messenger, must he be believed? The schools detail the question.
The Hanafis say: if the combatant is found inside the land of Islam and declares "I am a messenger", and produces a letter recognized as coming from their king, he is safe until he delivers his message and returns. Messengers have always been kept safe, before Islam and after, because war and peace are conducted through them. The Prophet said to a messenger who had spoken before him in a way he disliked: "Were you not a messenger, I would have killed you." This proves that the messenger is a man under protection, and he cannot be forced to prove his rank. If he produces no letter, or produces one not known to come from their king by a known seal and signature, he and what he carries become fay', property taken without military effort and assigned to the public treasury. If he claims to have entered under a safe-conduct, he is not believed: the right of the Muslims was already established over him without any visible safe-conduct, and he is not believed when he seeks to annul their right (al-Mabsut of as-Sarakhsi 10/93).
The Malikis treat three situations: he is seized while coming toward us saying "I have come to seek your protection"; or he is seized in our land carrying goods and says "I entered without protection because I thought you would not trouble a merchant"; or he is seized between the two territories saying "I was coming to seek protection". In all three cases he is sent back to the place of his safe-conduct, and it is not lawful to kill him, capture him or take his property. If an indication establishes his truthfulness or his lie, action follows the indication: if it proves his lie, he is not sent back, and the imam may choose to kill him, enslave him or otherwise. If he is sent back and heads toward his land with a favorable wind, he remains under the protection of his first safe-conduct and no one may attack him until he reaches it; if he returns after reaching it, one opinion makes him fay', another holds him safe if he returns by choice, and a third leaves the imam free to send him back or detain him (ash-Sharh al-kabir 2/186, Mawahib al-Jalil 3/361, Sharh Mukhtasar Khalil 3/123).
For the Shafi'is, whoever enters as a messenger or to listen to the speech of Allah is protected, not the one who enters to trade. If a Muslim told him that entering to trade counts as a safe-conduct and he believed it, he has reached the place of safety and cannot be ambushed; the same holds if he heard a Muslim say "whoever enters as a merchant is protected" and entered relying on it. If he did not believe it he may be ambushed, and he may be ambushed too if no Muslim informed him and he merely supposed entry to be safe, his supposition having no basis. Only the imam, not individuals, may make entry for trade a safe-conduct if he sees benefit in it; when he declares "whoever enters as a merchant is protected", his word is followed, which does not hold for an individual. Granting protection to the one who asks for it is not obligatory, unless he asks for it in order to listen to the speech of Allah: then it must be granted at once, not for four months, but for the time the exposition takes (Mughni al-Muhtaj 4/237, Asna al-Matalib 4/204, Hawashi ash-Sharwani 9/267).
The Hanbalis report from Ibn Qudama: when a combatant enters the land of Islam without a safe-conduct, one waits; if he carries merchandise to sell there and the custom is established that they enter among us as merchants without protection, they are not molested. Ahmad said: when merchants who associate others with Allah, coming from enemy land, meet people at sea heading toward the land of Islam, they are not attacked and are not fought, and every combatant who enters the lands of the Muslims to trade is left in peace and questioned about nothing; if he carries no goods and says "I have come under protection", he is not believed, and the imam is free to choose.
Does the safe-conduct that the rebels grant to the polytheists bind the just Muslims? Jurists of the four schools state that it does, on the strength of the hadith: "The lowest of them grants protection on behalf of the Muslims", reported by al-Bukhari (3008) and Muslim (1370). The exception is when the rebels enlist the combatants against us, promising them protection so that they fight at their side: such a safe-conduct is not enforceable against us, as the Shafi'is and Hanbalis state expressly.
The Hanafis say the rebel's safe-conduct to the combatants is valid because of his Islam, and if the rebels betray them and seize them, no just Muslim may buy those captives (al-Bahr ar-ra'iq 5/154). The Malikis add that the safe-conduct of the dissident over the great Muslim imam, the free one, stands and is permitted by agreement (Sharh Mukhtasar Khalil 3/123, Hashiyat al-Adawi 2/11). Al-Mawardi summarizes: the safe-conduct is valid from any Muslim toward any polytheist, given by a man or a woman, a free man or a slave, a just Muslim or a rebel; the rebel's safe-conduct binds the rebels and the just alike, and the just man's binds both camps as well. If rebels protected polytheists whom the just then captured and despoiled in ignorance, the capture is invalid and restitution is due; and likewise if the just had protected them (al-Hawi al-kabir 13/142). Al-Jammal notes in his gloss: if the rebels protected them without condition, the safe-conduct binds us too; if they fight us with them, it is broken as far as we are concerned, and likewise with respect to the rebels; enlisting them is not a safe-conduct for them (Hashiyat al-Jammal 5/118, Nihayat al-Muhtaj 7/408). An-Nawawi goes further: if the rebels enlist the combatants with a promise of protection to fight with them, that safe-conduct does not bind us; we may seize their property, enslave them, kill them if they fall captive, kill their fugitives and strike their wounded. Judge Husayn said the fugitive is not pursued and the wounded not struck, and the sounder view is the first.
Can a safe-conduct be concluded in favor of the rebels themselves? The two sounder opinions admit it. If one says it does not form, al-Baghawi noted that the rebels could then return to kill and enslave them; but the imam declares it an invalid protection and the rebels must lead them to the place of safety. If the rebels claim they believed it lawful to support some Muslims against others, or believed them to be in the right, or believed they were helping them against the polytheists, two opinions follow: disregard their false belief and treat them with killing and enslavement, or, the sounder view, lead them to the place of safety and fight them as one fights rebels without attacking their fugitives (Rawdat at-talibin 10/60-61, Mughni al-Muhtaj 4/128, Nihayat al-Muhtaj 7/48). The Hanbalis add: if they enlist combatants and promise them protection, their promise is invalid and their killing becomes lawful to the just, because the condition of a valid safe-conduct is the undertaking to restrain them from the Muslims, whereas here they require of them war against the Muslims; the captive of such recruits follows the rule of the ordinary prisoner of war before their enlistment, but the rebels themselves may not be killed by the other rebels since they protected them, and treachery toward them is forbidden to the rebels.
The safe-conduct given by the protected subject living among the Muslims is not valid, by the consensus of the Muslims. Ibn al-Mundhir reports the agreement of most of the scholars he records: the safe-conduct of the protected subject is not permitted, the view of al-Awza'i, Layth ibn Sa'd, Sufyan ath-Thawri, ash-Shafi'i, Ahmad, Ishaq and the partisans of reasoned opinion. If one objects through the hadith "the lowest of them grants protection on behalf of the Muslims" that whoever is not of them does not protect, Ibn al-Mundhir answers that this reading would itself be a defensible view. Isma'il ibn 'Ayyash reported from his elders: no protection comes from the child or the treaty-holder; if they grant one, the imam chooses: he may confirm it, or send its beneficiary back to his place of safety. Al-Awza'i said of the one who fought alongside the Muslims that the imam chooses whether to keep him or send him back (al-Awsat 11/261-262, with the related references: al-Ingad fi abwab al-jihad, Sharh Fath al-Qadir 5/463, al-Ikhtiyar 4/131, al-Bahr ar-ra'iq 5/87, Sharh Ibn Battal 5/349, al-Istidhkar 2/262, Bidayat al-mujtahid 1/280, adh-Dhakhira 3/445, al-Hawi al-kabir 13/145, al-Ahkam as-sultaniyya p. 165, Sharh Muslim 5/232, al-Mughni 9/195, al-Mughni al-Muhta' 3/489, al-Insaf 4/203).
Ibn al-Mundhir reports the agreement of all the scholars he records that the safe-conduct of the child is not permitted, citing among them Sufyan ath-Thawri, al-Awza'i, ash-Shafi'i, Ahmad, Ishaq and the partisans of reasoned opinion (al-Awsat 11/263). In his book al-Idjma' he writes that they agree on this point (al-Idjma' 249), but that claim of consensus is disputed: the scholars distinguished the discerning child from the one who does not discern.
Ibn Qudama says: for the discerning child, Ibn Hamid reports two versions. One refuses validity to his safe-conduct, the view of Abu Hanifa and ash-Shafi'i, because he is not under obligation and his word produces no legal effect, like the insane man. The other validates it, the view of Malik. Abu Bakr ar-Raffa' says it is valid by a single version, and he applies the version of refusal to the child who does not discern, arguing from the generality of the hadith "the undertaking of the Muslims is one, its lowest executes it": the discerning child is a Muslim, so his safe-conduct stands like that of the adult, unlike the insane man whose word counts for nothing at all (al-Mughni 9/196, al-Insaf 4/203, al-Mughni al-Muhta' 3/389). Ibn Qudama says elsewhere that the safe-conduct of the insane man and the child is not valid, because their speech carries no weight (al-Mughni 9/196). Ibn al-Mundhir's wording suggests that the safe-conduct of the non-discerning child is excluded, while the discerning child remains subject to the disagreement reported. Ibn Hajar writes in the Fath: the wording of others points to the distinction between the adolescent and the rest, and between the discerning child who understands; the disagreement is reported from the Malikis and the Hanbalis (Fath al-Bari 6/274, 'Umdat al-qari 15/93). Ibn al-Humam says: if the child grants a safe-conduct without understanding, it is invalid by the agreement of the four imams, like that of the insane man; if he understands but is excused from fighting, the question remains disputed among the Hanafis: invalid with Abu Hanifa, valid with Muhammad. Ash-Shafi'i and Ahmad held Muhammad's view when fighting is permitted to him, and the sounder view is validity by agreement; the condition of understanding is that he grasp Islam and describe it. Al-Awza'i and ash-Shafi'i said the same; if he lost his way, or a wind drove his ship to us, he falls under one of the two versions of the question, the other making him fay' (al-Mughni 9/199, al-Insaf 4/207, al-Mughni al-Muhta' 3/394).
There is no disagreement among the scholars: the Muslim who enters the land of the polytheists under a safe-conduct, neither a prisoner nor betrayed by their king, may not touch their property, their blood or their intimate persons, for by seeking protection he undertook not to harm them; doing so afterward would be treachery, forbidden by consensus, for the Muslims are bound by their conditions. The Hanafis state it expressly, with one reservation: if their king betrayed them, seizing their property or imprisoning them with the king's knowledge and without his preventing it, then they are the ones who broke the covenant. If the Muslim betrays them and carries something off, that taking is an unlawful possession because of the treachery, and he is ordered to give it away as charity as a duty, the prohibition not having prevented the cause from arising. The prisoner stands on a different footing: he may harm them even if they release him freely, for he holds no protection and follows the rule of the escaped man: taking property and killing are lawful to him, without touching the women (Badai' as-sana'i' 5/301, Sharh as-Siyar al-kabir 2/507, al-Hidaya 2/152, Sharh Fath al-Qadir 6/17, al-'Inaya 8/50, Hashiyat Ibn Abidin 4/166, al-Bahr ar-ra'iq 5/107).
Ash-Shafi'i adds a right of restitution: if the Muslim under a safe-conduct finds the wife of a Muslim or of another, or the property of a Muslim or of a protected subject that the polytheists usurped, he may take it and carry it out, for it does not belong to the enemy; this is not treachery, just as one who takes back by force from a Muslim what that Muslim usurped and restores it to its owner is no traitor. But he may take nothing from the property of the polytheists, little or much, for if he lives among them under protection, they hold the like security against him, and nothing is lawful to him there except what is lawful to him from the property of Muslims and protected subjects. Ash-Shafi'i lists the causes that protect property: the owner's Islam, the status of the treaty-holder, and the safe-conduct for its term, the one living among them under protection being like the protected subject for the duration (al-Umm 4/268). He writes further that Muslims entering the land of war under a safe-conduct leave the enemy in peace until they depart or the safe-conduct expires; he would not like them to betray the enemy even if the enemy captured their children and women, but he would have them demand their return, and once restored, resume the fight (al-Umm 4/248). Ash-Shirazi draws a financial consequence: if the Muslim stole from them or borrowed from them, and the owners later come into the land of Islam under protection, he must return what he took, for the safe-conduct carries responsibility for property in both directions (al-Muhadhdhab 2/264, Rawdat at-talibin 10/291). The questions of Abd Allah ibn Ahmad carry the same rule: one who entered under a safe-conduct does not steal, take anything, sell a dirham for two in their land, or fornicate there. Ibn Qudama explains: betraying them is forbidden because they granted him protection only on condition that he not betray them; and if he comes from them to us under protection and betrays us, he has broken his covenant (Masa'il Abd Allah p. 253, al-Mughni 9/237). Az-Zarkashi notes from al-Khirqi's wording "that he not betray them in property" that he also may not betray them in their persons (Sharh az-Zarkashi 3/205, Kashshaf al-Qina' 3/108, al-Insaf 5/52, Matalib awli an-nuha 2/582). If the man under protection guides them and then betrays them, or refuses to guide them, his undertaking lapses and the matter returns to the imam, who kills him or makes him fay': the condition binds, as the Prophet said "the Muslims are bound by their conditions", and 'Umar said "the condition has the strongest claim", the inviolability of his blood having been suspended on guiding and loyalty (Sharh as-Siyar al-kabir 1/287).
The majority of the scholars hold that a Muslim who enters the land of the polytheists without a safe-conduct may attack their blood and their property. In the questions of Abd Allah ibn Ahmad, the son asks his father whether a man who entered enemy land may take from them; he answers that under a safe-conduct he neither steals nor takes anything, but that entering without a safe-conduct, taking from them is lawful. This is also the Shafi'i position: if he finds buried treasure in the land of war having entered without protection, taking it by force and fighting makes it war booty divided after the fifth; taking it without fighting or force makes it, in one view, fay' assigned to its beneficiaries. An-Nawawi objects: one who enters without protection and takes their property without fighting takes it either secretly, as a thief, or openly, as a usurper, and in both cases the property remains with the thief or the usurper; the objection gains force from the many imams who stated generally that it is war booty, among them Ibn as-Sabbagh and as-Saydalani (Rawdat at-talibin 2/289, Tarh at-tathrib 4/21, Mughni al-Muhtaj 6/44). The Shafi'i disagreement therefore bears on the status of what he takes. The Hanafis, in the Sharh as-Siyar al-kabir of ash-Shaybani, settle the case of the Muslim captured by the polytheists who tells them "I am one of you" or "I have come to fight the Muslims with you": he may then kill whom he wills of them and take what he wills of their property, for such words are no safe-conduct from him but deception through the use of plausible speech. Sarakhsi explains the meaning: "I am one of you" means a man of your kind, and "I have come to fight with you" may mean fighting the rebels, or pushing back the enemy from the Muslims; such words cannot be a safe-conduct, for he is a captive overcome in their hands and cannot grant them protection, while he is the one who needs protection from them. The proof comes from acts of the Prophet, notably the mission of Abd Allah ibn Unays against Khalid ibn Soufyan: the Prophet sent him alone to kill him, instructing him to claim kinship with the Khuza'a.
I set out late in the afternoon; the prayer time arrived and I feared to pray and be recognized, so I gestured while walking, until I reached Khalid's shepherd woman. I asked her whose she was; she said Ibn Soufyan's. I asked where he was; she said he had just arrived. Before long he came, leaning on a staff. When I saw him my limbs shook with fear. He approached and greeted me; I claimed the Khuza'a, then told him: I have come to back you, increase you and stand with you; I mean to back you by calling to Islam, by fighting the messenger of Allah, in line with his words: "Help your brother, wrongdoer or wronged", for helping the wrongdoer is restraining his wrong. Then I told him I meant to cut him down bit by bit if he did not believe. I was given milk to drink, suspected poison, and warned the girl that if she spoke I would kill her. I walked with him until he trusted my words; then, feigning to tread on a thorny branch, I stumbled. He said: come along, brother of the Khuza'a. I fell behind, he caught up with me, I struck his neck and took his head, then fled up the mountain and entered a cave; the searchers came from every direction. A man sat down to relieve himself, laying down his sandals and his waterskin; a spider spun its web over the cave's mouth, and he told his men: no one is inside. I came out, took his sandals and waterskin, traveled by night and hid by day until I reached Medina, where the Prophet saw me and said: "Blessed is the face!" I told him my story; he handed me a staff and said: "Gird yourself with this staff, Ibn Unays, in Paradise, for few are those who gird themselves there." I kept it until my death and ordered that it be wrapped in my shroud.
an authentic account reported by Abu Nu'aym in the Hilya (2/5-6) and in the Akhbar Asbahan (1/189-190, 2/289)
The point of this story, as Sarakhsi writes, is that the words "I have come to back you and increase you" constituted no safe-conduct. The other act is the execution of Ka'b ibn al-Ashraf, reported by al-Bukhari (4037), Muslim (4765), Abu Dawud (2768), an-Nasa'i in al-Kubra (8641) and al-Hakim (3/492): the Prophet said "Who will deal with Ibn al-Ashraf? He has harmed me", Muhammad ibn Maslama answered, and the Prophet said "do it". Ka'b composed verses against the Prophet and stirred up vengeance after Badr. The envoys used the same ruse: they spoke of his perfume, proposed buying provisions on credit against the pledge of a coat of mail, spoke gently with him, then Abu Na'ila took his head while admiring its scent until he felt secure, and they killed him. Muhammad ibn Maslama reports drawing his dagger and driving it to the hilt. When news came, the Prophet ordered the next morning that any Jew found on their path be attacked, to prevent gatherings and preparations for reprisal: this was firmness and statecraft, and killing the enemy who slips into Muslim territory without a safe-conduct, or executing the spy, was not treachery.
Ash-Shaybani adds that if Muslims enter the land of war without a safe-conduct and pass by one of the enemy's churches, they may demolish it, burn it and relieve themselves in it, for it is like the rest of their dwellings, and even lighter on the Muslims' conscience given how much disobedience to Allah takes place there (Sharh as-Siyar al-kabir 5/1817). As for the Malikis, their texts indicate that taking is lawful for one who enters without protection or by cunning seizure, for they class among property owned outright by the taker what is seized from an unprotected combatant without his knowledge, and what a captive, a merchant or a recent convert carries off in flight (Sharh hudud Ibn Arafa 1/229, Mawahib al-Jalil 3/366, Sharh Mukhtasar Khalil 3/135, Sharh Mayyara 2/304).
On this point 'Umar ordered the killing, reported by Sa'id ibn Mansur in his Sunan (2670), by Ibn Abi Shayba (6/511, no 33402) and by Ibn al-Mundhir in al-Awsat (11/265), with a chain Ibn Hajar declared authentic (Fath al-Bari 6/275), and no disagreement is known on it. If the Muslim says to the combatant "stand up", "halt" or "put down your weapon", the Hanbalis hold it a safe-conduct too, for the polytheist believes it to be one, which resembles "I grant you protection". Al-Awza'i said: if the polytheist claims he was granted protection, or says he halted because of the call, he is safe; otherwise his claim is not received. One may also hold that it is not a safe-conduct, the word serving chiefly to frighten; the matter then returns to the killer: if he says he intended protection, it is a safe-conduct; otherwise one looks at the polytheist, and if he believed himself protected he is sent back to his place of safety and his killing is not permitted (al-Mughni 9/257-258, Kashshaf al-Qina' 3/106, Tathbir al-Mukhtasar of ad-Damiri 2/476, at-Taj wa-l-iklil 3/360, Sharh Mukhtasar Khalil 3/124).
On the safe-conduct by gesture there is no disagreement as to its validity when the Muslim signals in a way the polytheists understand as protection and declares he intended it. If he says he did not intend it, Ibn Qudama follows his declaration, for he knows his intent best; and if the polytheists came out of their fortress relying on that protection, they may not be killed, but are sent back to their place of safety. 'Umar said: "By Allah, if any one of you raised a finger toward the sky before a polytheist, and the man stopped relying on his protection, and he killed him, I would kill him in retaliation", reported by Sa'id ibn Mansur. If the Muslim dies or departs, they are likewise sent back, the view of Malik, ash-Shafi'i and Ibn al-Mundhir. It is objected that the gesture counts here while sale, divorce and manumission require speech; the answer is that the sparing of blood is given preference, as with the man whose ambiguous writing protects him, and that the polytheists generally do not understand the Muslims' language nor the reverse, which makes speech by gesture necessary (al-Mughni 9/257-258, al-Muhadhdhab 2/235, Rawdat at-talibin 10/279, Kashshaf al-Qina' 3/106, Sharh Muntaha al-iradat 1/653). Abu Bakr al-Athram explains: the gesture understood ranks as speech, by analogy with the Prophet who signed to the people behind him in prayer to sit, and they sat (al-Awsat 11/264).
Ibn Abd al-Barr reports that Malik, asked about the gesture, said it ranks as speech, that armies should be ordered not to kill anyone who signaled protection by gesture, and that Ibn Abbas said: "A people never broke a covenant but that Allah let the enemy prevail over them." The same Abu Umar says: if the blood of the combatant becomes inviolable through a safe-conduct, what of the betrayal of the believer who lives under the safeguard of Allah? The Prophet said: "Faith has bridled savage killing; a believer does not kill savagely", an authentic hadith reported by Abu Dawud (2769) and Ahmad (1433). Treachery is to grant protection and then kill, and it is forbidden by consensus (al-Istidhkar 5/33-35). Ash-Shirbini develops the point: a safe-conduct is valid through any wording that reaches its purpose, explicit like "I take you under protection", reassuring like "fear nothing", "you are safe", "you are under my protection", or metonymic with the intention; by writing, following a report from 'Umar; and by letter, stronger still than writing, whether the bearer is Muslim or polytheist, for the whole chapter rests on widening the sparing of blood. A safe-conduct may even be granted conditionally on a contingency, like "if Zayd arrives, you are protected", and through a gesture understood. If the Muslim denies having granted it after the polytheist has come, the man is led to his place of safety and not ambushed. If the one who gestured dies before explaining, there is neither protection nor ambush: he is led to the place of safety. Only the imam may institute such a general safe-conduct, and the request for protection must be granted only when made to listen to the speech of Allah. Knowledge of the safe-conduct on the part of the combatant is a condition, as in every contract; if he does not know, it profits him nothing and killing remains possible. If he knows and refuses it, the safe-conduct falls like a gift. Silence suffices on the sounder view, provided he abstains from fighting, as al-Mawardi makes explicit, since in this chapter ash-Shafi'i's text does not require acceptance, the position of the early and later generations alike. An understood indication suffices even from a mute man, provided only the intelligent grasp it (Mughni al-Muhtaj 4/237-238, Nihayat al-Muhtaj 8/80).
Al-Azdi al-Qurtubi widens the principle: any words in whatever language, any established usage, any writing in an agreed script, any sign and symbol by which the Muslim conveys protection to the combatant, or by which the combatant feels safe from him, count as a safe-conduct, whether the Muslim intended it or not, provided they match his intent and carry no defect; it must then be honored to its term. The basis is the word of Allah:
If you fear from a people treachery, throw back their treaty to them in equal terms: Allah loves not the treacherous.
Surah al-Anfal 58
Allah orders that they be told of the repudiation of what they believed, and does not permit attacking them in surprise. Two cases arise for the man who conveyed a protection he did not intend: either he was heedless, without intent to protect; his act remains suspect, he is the cause of the trust the combatant placed in him, the burden falls on him, and the protection is undone by sending the man back; or he acted knowingly to deceive and overpower him: that is exactly the treachery and ruse forbidden by consensus, the like of which 'Umar ibn al-Khattab threatened its perpetrators (al-Ingad fi abwab al-jihad p. 303-305).
The pact of protection must therefore be honored, with no treachery or betrayal: no killing, no capture, no enslavement of the protected man. But the jurists add a condition: the safe-conduct must not harm the Muslims. The Malikis state expressly that no harm may come to the Muslims from it: whoever protects a spy, a scouting vanguard or a harmful man creates no safe-conduct at all (adh-Dhakhira 3/446, Hashiyat ad-Dasuqi 2/182, at-Taj wa-l-iklil 3/361, Manh al-Jalil 3/173, ath-Thamar ad-dani p. 415, Kifayat at-talib 2/11). Al-Adawi explains that the spy is then killed, unless the imam prefers enslavement or the man converts; the tali'a is the vanguard sent ahead of the army to identify the enemy, a thing distinct from the spy. Sahnun said: if the Muslims overlook a fortress whose capture is certain and an individual signals protection to them, the imam may annul it (Tathbir al-Mukhtasar 2/476, at-Taj wa-l-iklil 3/360, Sharh Mukhtasar Khalil 3/124). Ash-Shirbini writes likewise that no safe-conduct that harms the Muslims is lawful or valid, such as for a spy or a scout, per the hadith "no harm and no reciprocal harm", and such a man does not merit being led to the place of safety, for his very entry is treachery; close to him stands the man who carries weapons into the land of war to aid the enemy (Mughni al-Muhtaj 4/238, Rawdat at-talibin 10/281). Al-Ghazali sets the two conditions: the safe-conduct must do no harm, the spy or scout being killed regardless of it, and no positive benefit is required so long as no harm exists (al-Wasit 7/44). The Hanbalis write in the Kashshaf al-Qina': it is required for the safe-conduct that it do us no harm (3/104). As for one who received an invalid protection, the Malikis and Shafi'is state that he may be ambushed and killed. Khalil says: "The assassin and the spy are killed even if protected, and the Muslim is like the heretic." Al-Kharshi explains that the spy observes the weak points of the Muslims and carries their news to the enemy: he is the messenger of evil, opposite to the trustworthy emissary, the messenger of good; whether he was a protected subject before being exposed as a spy, or entered under a safe-conduct, the protection neither includes nor requires that quality; unless the imam prefers enslavement, and his killing is possible if he does not convert; the well-known view is that the Muslim exposed as a spy takes the ruling of the heretic: killed when exposed, with no repentance accepted, the view of Ibn al-Qasim and Sahnun (Mukhtasar al-Kharqi p. 102, Sharh al-Kharshi 3/119, Hashiyat al-Adawi 2/11). An-Nawawi writes the same: the Muslims must not be harmed through him; whoever protects a spy or a scout creates no safe-conduct, and ash-Shafi'i says such a man does not merit being led to the place of safety, his entry being itself a treachery that justifies ambushing him (Rawdat at-talibin 10/281).
There is no disagreement: the safe-conduct granted by the imam to all the polytheists and to each of them is valid, for his authority extends over all the Muslims, he who is charged with pursuing the general interest and acts for all in securing benefit and repelling harm (al-Awsat 11/263, Tathbir al-Mukhtasar 2/473, at-Taj wa-l-iklil 3/359). The jurists then differ over what the army commander and ordinary Muslims may grant.
The Hanafis say: if a free man or a free woman grants protection to a polytheist, to a group, to the people of a fortress or of a city, their safe-conduct is valid and no Muslim may fight them, unless harm results: then they are informed, as the imam does when, having himself granted protection, he sees benefit in revoking it. If the imam besieges a fortress and a soldier grants a harmful safe-conduct, the imam revokes it and disciplines the soldier for overstepping, unless consultation was possible, delay having perhaps cost the benefit and excused him. But an individual may grant protection only to a small band: a large force belongs to the imam alone (al-Hidaya 2/139, Sharh Fath al-Qadir 5/462, al-Ikhtiyar 4/130, al-Jawhara an-nira 2/364, al-'Inaya 7/465, Hashiyat Ibn Abidin 4/134). Shafi'is and Hanbalis hold likewise that the safe-conduct of individuals is valid only for a small band: one man, ten, a small caravan, a small fortress, a countable number; not for the people of a town, a village or a great mass, for that would paralyze the jihad and overstep the imam. An-Nawawi writes that it is valid from any accountable, free Muslim toward a combatant and a countable number of them; ash-Shirbini specifies: the people of a small village only, not those of a town or district, so that the jihad not be blocked. Ar-Ramli caps the countable number at a hundred, for that is a truce, the imam's prerogative (Mughni al-Muhtaj 4/237, Hashiyat Qalyubi 4/226, Nihayat al-Muhtaj 8/80). The Shafi'is state that if the safe-conduct shuts the door of jihad in the region, it is forbidden to the imam as to the individuals; otherwise both may grant it, so that the jihad not cease: al-Bujayrimi says the field of the valid safe-conduct is the countable number whose protection does not shut the door of jihad (Hashiyat al-Bujayrimi 4/335, Hawashi ash-Sharwani 9/266). Ibn Qudama writes along the same lines: the imam's safe-conduct is valid for all the polytheists; the commander's binds those arrayed against him, and for the rest he is like the individuals; the individuals' safe-conduct binds for one man, ten, a small caravan, a small fortress, not for a town, a village or a great mass, because of the paralysis of the jihad and the overstepping of the imam (al-Mughni 9/196). The Malikis say: if other than the imam protects a whole region, the imam reviews it; if he judges it sound he confirms it, otherwise he annuls it and decides himself, for protecting a region is an imam's prerogative. By region is meant a number that cannot be counted. The safe-conduct granted by the free, adult Muslim man to a countable number removes their liability to be killed without depending on the imam's confirmation, for he binds his own person.
The question is whether the safe-conduct given by a Muslim prisoner or merchant in the land of war, free of coercion, binds all the Muslims or only himself. The Hanafis say it binds only him: Ibn Nujaym explains in the gloss on al-Kanz that the prisoner and the merchant are overcome under their hands, they do not fear them, and protection belongs to the place of fear; the prisoner's safe-conduct is not valid with respect to the other Muslims, who may still attack them, but it is valid as to himself: the man who contracted it for himself takes nothing of their property without consent, takes nothing that became Muslim property by conquest, and may carry out what belonged to the Muslims without conquest having consecrated it. If a Muslim in the land of war grants a safe-conduct to a vast army that marches out with him toward Islam and the Muslims seize it, it is fay'; if it is one man or twenty marching out with him, they are protected, for he is overcome by the army, not by one man. Muhammad ibn al-Hasan writes in the Sharh as-Siyar al-kabir: this Muslim is not safe from them in the land of Islam nor in the land of war, overcome in both places by their power, so his protection of them is void. But if he grants protection to twenty men and marches out with them toward Islam, they are protected, as if the safe-conduct had been granted to them originally in the land of Islam: true, he is overcome by them in himself, but he is the overpowering, protected one by the strength of the Muslims, for these twenty cannot withstand the Muslim community, whereas the army can. Sarakhsi remarks that if the safe-conduct of the man marching out with the army were not valid, it would be deception: they left their strength relying on that protection, which the army did not do. The same holds if he leads them toward the Muslim camp in the land of war: if they cannot withstand the camp, they are protected; if their numbers let them, his protection is void. Likewise, if the Muslims besiege a fortress and a Muslim trapped inside grants protection to powerless men and leads them out to the camp, they are not protected: the besieged already stand in weakness like prisoners, and validating such a protection would stop the Muslims from ever subduing them, for as soon as defeat drew near they would convert, and each would bring out his men under a safe-conduct; one may not accept what closes the door of war captivity to the Muslims (al-Bahr ar-ra'iq 5/88, al-Mabsut 10/71, Hashiyat Ibn Abidin 4/137, Durr al-hukkam 3/334, Sharh as-Siyar al-kabir 2/53-56).
The Shafi'is say on the sounder view that the safe-conduct of the chained or confined prisoner is not valid, whether addressed to his guards or to others, even without coercion, for he is overcome in their hands; the prisoner free of chains, held in quarters but unbound, has a valid safe-conduct. Ash-Shirbini marks the field of the disagreement: the chained or detained prisoner, even uncoerced, is overcome and cannot see where the benefit lies; the prisoner of the house, detained but unfettered, has a valid protection, and al-Mawardi adds that he protects only in the land of war unless he states the protection for elsewhere, and that this does not hold for the polytheist prisoner at large, a right of the Muslims having attached to him through capture, except for the one who captured him while he holds him, as he may kill him (Mughni al-Muhtaj 4/237, Nihayat al-Muhtaj 8/80). The Malikis, the Hanbalis and the Shafi'is on the opposite view admit the validity of the prisoner's safe-conduct if he is himself safe and uncoerced. Al-Hattab reports Ashhab's question: a man strayed from the Muslim army and the enemy captured him; the Muslims pursued them and the enemy said to the Muslim captive: grant us protection, and he did. Ashhab said: if he protected them while safe himself, it is permitted; if he protected them while fearing for himself, it is not permitted. The captive's word on this is admissible, the view of Ibn al-Qasim and Muhammad (Mawahib al-Jalil 3/361).
The jurists discuss the combatant who enters the land of Islam outside commerce and without claiming protection: may he be killed, is he fay' for all the Muslims, or does he belong to the one who finds him? Malik says the imam chooses and his status is that of the people of war. Abu Hanifa, ash-Shafi'i and Ahmad in one version make him fay' for the Muslims, for he is property over which neither cavalry nor infantry had to contend in battle; fay' belongs to the imam, who disposes of it where he will, and the imam chooses as with the prisoner, the taking not being reserved to the finder, since the cause of ownership for the Muslim community has arisen, like game taken jointly. Moreover, the people of the land of Islam form a single power defending one religion, so the hand of the taker is the hand of all, as what one raider takes in the land of war becomes booty shared by all. Abu Yusuf, Muhammad and Ahmad in the second version give him to the finder, on the hadith reported by al-Bukhari (2886): Salama ibn al-Akwa' relates that a spy of the polytheists came to the Prophet while he was on a journey, sat with his companions talking, then left; the Prophet said: "Seek him and kill him", he was killed, and the Prophet assigned his spoils to Salama. The text of the hadith shows that the property belongs to the finder, for the Prophet assigned the spoils to Salama alone because he had killed him, the cause of ownership having arisen through him alone; the hand of the community is a legal, abstract hand, the hand of the combatant a real one, and the real hand of the taker, being established, annuls the hand of the combatant, which the lower legal hand cannot do (al-Mabsut of as-Sarakhsi 10/93, Badai' as-sana'i' 7/116, Sharh Mushkil al-athar 8/9-10, Sharh Ibn Battal 5/213, Fath al-Bari 6/168, 'Umdat al-qari 14/296, al-Mudawwana al-kubra 3/10, ash-Sharh al-kabir 2/186, Mawahib al-Jalil 3/361, Sharh Mukhtasar Khalil 3/123, al-Mughni 9/199, al-Insaf 4/207, al-Mughni al-Muhta' 3/394).
Ibn Qudama says the law came with two formulas: "I take you under protection" and "I grant you safety", on the word of Allah:
And if any one of the polytheists seeks your protection, then grant him protection so that he may hear the word of Allah.
Surah at-Tawbah 6
and on the Prophet's words at the peaceful entry into Mecca: "We have protected the one you protected", and his words: "Whoever enters the house of Abu Sufyan is safe, whoever locks his door is safe"; along the same lines: "fear nothing", "do not be startled", "do not dread", "no fear upon you", "nothing to fear for you". 'Umar said: "If you say to a man: nothing to fear, or do not be startled, or you are safe, you have granted him protection, for Allah knows the tongues." In another version: "When a man says to a man: fear nothing, he has protected him; if he says: do not be startled, he has protected him, for Allah knows the tongues." It is reported that 'Umar said to Hormuzan: "Speak, nothing to fear for you", and when he had spoken, ordered him killed. Anas ibn Malik objected: you cannot do that, you protected him. 'Umar pushed back, but az-Zubayr recalled: you said to him: speak, nothing to fear for you; and you turned back [his execution]. 'Umar was sent for and questioned, and the man cited the Prophet's words: "Whoever has a covenant with a people must not tie or untie any knot until its term expires, or until he has notified them in equal terms." 'Umar withdrew. To notify in equal terms means to inform them of the intent to fight and that the peace is lifted, both camps then standing equal. Al-Azdi al-Qurtubi writes: the Muslims are unanimous on the duty to honor the pact of protection and on the prohibition of betraying it. The account of Hormuzan is reported by Abd ar-Razzaq (5/219-220, no 9429), Ibn Abi Shayba (12/458-459, no 15254), Sa'id ibn Mansur (2/271, no 2599) and al-Bayhaqi (9/96), and invoked by al-Bukhari in his Sahih, chapter on the jizya and the cessation of hostilities.
The scholars agree that the safe-conduct given by the free, adult, sane man is valid, a consensus reported by Ibn al-Mundhir in al-Idjma' (262) and al-Awsat (11/258), by Ibn Hazm in Maratib al-idjma' (121) and by al-Azdi al-Qurtubi in al-Ingad (288), on the strength of the following hadiths.
The safe-conduct of the free woman is lawful like that of the man in the view of the majority of the scholars: Abu Hanifa, Malik, ash-Shafi'i, Ahmad and their partisans, ath-Thawri, al-Awza'i, Abu Thawr, Ishaq, Dawud and others. The proof is the text 'Ali cites from the Prophet's sheet: "We wrote nothing from the Prophet except the Qur'an and what is in this sheet": Medina is sacred from such and such a place; whoever innovates or shelters an innovator is cursed; the undertaking of the Muslims is one, its lowest executes it; whoever betrays a Muslim is cursed; and whoever protects a people without the leave of their guardians is cursed, reported by al-Bukhari (3008) and Muslim (1370). The woman thus falls under the Prophet's words. Added to this is the hadith of Umm Hani' bint Abi Talib, reported by al-Bukhari (3000) and Muslim (336): in the year of the conquest she came to the Prophet as he bathed, and told him that 'Ali claimed the right to kill a man she had protected, a son of Hubayra; the Prophet answered: "We have protected the one you protected, Umm Hani'."
I went to the messenger of Allah in the year of the conquest and found him washing himself, Fatima holding a garment to screen him. I greeted him; he asked who I was; I said: I am Umm Hani' bint Abi Talib. He said: welcome to Umm Hani'. When he finished, he stood and prayed eight raka in a single garment. Then I said: messenger of Allah, my son 'Ali claims the right to kill a man I have protected, so-and-so son of Hubayra. The messenger of Allah said: we have protected the one you protected, Umm Hani'. Umm Hani' said: it was mid-morning.
reported by al-Bukhari (3000), Muslim (336) and Malik in the Muwatta (356)
Ibn al-Mundhir writes that most of the scholars he records agree that the safe-conduct of the free woman is lawful, among them Malik ibn Anas, Sufyan ath-Thawri, al-Awza'i, ash-Shafi'i, Ahmad, Ishaq and the partisans of reasoned opinion, and that the established reports from the Prophet show it through the protection granted by Umm Hani' and by Zaynab, the Prophet's daughter, which he confirmed. 'Aisha said: "If a woman were to grant protection among the believers, that would be permitted." All the scholars of the regions say so, except Abd al-Malik, Malik's student, who restricted the safe-conduct to imams, the army commander and the troop leader. Asked about the hadiths of the lowest of the Muslims, of Umm Hani' and the rest, he replied: perhaps that took place once his merits were manifest and he knew that in that state he was the most useful to Islam and its people; but the safe-conduct belongs to the imam, and it is among the weightiest of matters. Abu Bakr al-Athram objects that the apparent sense of the reports is not set aside by conjecture, that the words "its lowest executes it" refute this claim, and that the opinion contradicts the hadith of Umm Hani' and of Zaynab, the word of 'Aisha, and what his own teacher Malik said.
These rules describe the historical law of wartime pacts: they show the weight the Islamic law places on a given word, to the point that a gesture, a reassuring formula or a writing gives rise to an inviolable protection. The essential to retain: whoever promises safety binds his faith, betraying the protected man is a grave sin by consensus, and any promise that would harm the Muslims, such as one made to a spy, does not form at all.