Islamic Fiqh > Penalties (hudud) > The jizya and the dhimmis: regime, rights and truces > Truces and the muhadana with the enemy
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Updated on 27 September 2026 at 3:52 AM
The hudna, or muhadana, is the pact by which the imam suspends fighting against the enemy for a fixed term, with or without compensation. Fiqh defines the acts that break it, the obligations of the imam after its conclusion, and the conditions of its validity.
This page restores, opinion by opinion, the doctrine of the Hanafi, Maliki, Shafi'i and Hanbali schools, with the classical references and the authentic reports transmitted in support.
The jurists of the four schools agree that if the disbelievers side with the enemies of the Muslims and aid them against us, whether in secret or openly, their truce is broken. Allah says: “except for those of the associators with whom you made a treaty near the Sacred Mosque, who then did not wrong you at all and supported no one against you: be straight with them as long as they are straight with you” (Surah at-Tawbah 7): the verse shows that when they cease to be straight with us, we cease to be so with them. And Allah says: “except for those of the associators with whom you made a treaty, who then have not failed you in anything and have supported no one against you: fulfil their treaty to its term” (Surah at-Tawbah 4): if they support anyone against us, their treaty is no longer fulfilled to its term.
The truce requires that they refrain from harming us, so it is broken by their abandonment of that restraint, and its breaking needs no judgment of the imam: judgment is needed only for a matter open to interpretation, whereas the support they give admits only one reading: breaking the covenant.
The Prophet (peace be upon him) marched against the people of Mecca after the truce without even denouncing their breach to them, for they had already broken it by aiding Banu Kinana, their allies, in fighting Khuza'a, the allies of the Prophet (peace be upon him). Abu Sufyan came to Medina asking for the renewal of the covenant between himself and Quraysh, and the Prophet (peace be upon him) gave him no answer: the breach had already been made manifest by the war raised against the allies of the Prophet (peace be upon him). Such was also his way: when a people made a treaty with him and an enemy allied himself with them, then another allied himself with him, whichever of the two fought the other's ally took the status of one who fought him directly. For this reason he marched against the people of Mecca: they had treated with him to suspend the war for ten years; Banu Bakr ibn Wa'il entered the covenant of Quraysh, Khuza'a that of the Prophet (peace be upon him); Banu Bakr attacked Khuza'a by night, killed some of them, and Quraysh secretly aided them with weapons. The messenger of Allah (peace be upon him) counted Quraysh among the breakers of the covenant and judged the expedition against Banu Bakr ibn Wa'il lawful because of their aggression against his allies. Ibn Taymiyya issued the same ruling against the Christians of the East when they aided the enemy of the Muslims in fighting them, supplying them with money and weapons, although they had neither raided nor fought them: he counted them among the breakers of the covenant, as Quraysh broke the covenant of the Prophet (peace be upon him) by aiding Banu Bakr ibn Wa'il to war against his allies; all the more when the dhimmis aid the associators in making war on the Muslims.
ash-Shafi'i writes: part of Quraysh broke the covenant, without the others disavowing them with a disavowal that could be held against them, nor leaving their camp, and the messenger of Allah (peace be upon him) marched against them in the year of the Conquest, his face covered, to take them by surprise at dawn (al-Umm 4/189, Ahkam al-Qur'an 4/252, 274, al-Muhadhdhab 2/263, al-Bayan 12/324-325, Rawdat at-Talibin 7/54, Kashshaf al-Qina' 3/128).
The jurists of the four schools agree that if the disbelievers under truce or peace fight the Muslims, their truce is broken when they do so with the permission of their imam, or when a group of them fights and their imam knows of it. If a group comes out to fight us, the schools detail the cases.
The Hanafis teach: if people of the land of the covenant come out with the permission of the imam and cut the roads inside dar al-islam, their truce is broken, for the permission of the imam amounts to denunciation. If they come out without the permission of the imam and cut the roads: if they are a band without strength, this does not break the truce, for cutting the roads without strength is no proof of breach; these men are not safe from their own folk, who are not pleased with their deed; observe that one of them who denounced it alone would not break it, as with the permanent safe-conduct which is the covenant of dhimma. If they are a band possessing strength and act openly inside dar al-islam without the order of their king or of his realm, they are breakers of the truce: the benefit of the covenant consists only in suspending fighting; when they display fighting relying on their strength, they break it by their very act, contrary to what grounds the covenant. As for the king and the people of his realm, they remain at peace with us: they did not commit the cause of the breach and are not pleased with the deed, and no one is taken to task for the sin of another. If they came out with the king's authorisation, all have broken the covenant: they may be killed and captured wherever found, for their act with the king's permission counts as the act of the king himself; and the people of the realm follow the king in peace as in war, through submission and contentment to have him at their head: when he becomes a breaker of the covenant, his people become so after him, whether they knew what he did or not. A man who came out to our land before his king's permission, in the matter that was later authorised, has gained safety among us and remains safe as long as he does not return to his stronghold. If the band came out with the king's knowledge and he neither forbade them nor informed the Muslims, it is like the first case: his subjects obey him, and the fool who is not forbidden is a delegate; his covenant obliged him to stop them if he could, or to inform the Muslims otherwise; by neglecting what was required of him, he is as if he had ordered them to fight (Sharh as-Siyar al-Kabir 5/1696-1697, Badai' as-Sanai 7/109-110).
The Shafi'is teach: the truce is broken either by all of them or by part of them. If all break it, all become enemies at war, and none has security for person or property. If part of them break it, the situation of those who did not break it is of three types. The first: they approve the breach by word or deed; their covenant is broken by their approval as it is by the deed, and all become enemies. The second: they disavow the breach by word or deed, withdrawing from them or informing the imam that they remain in the covenant: their covenant is not broken, even if the breaker is their chief, according to the word of Allah: “We saved those who forbade evil” (Surah al-A'raf 165); if they limit themselves to disapproval without withdrawing or informing the imam, they are breakers, contrary to the covenant of dhimma, and they are like the one who disavows the breach on oath. The third: they hold back, showing neither approval nor disapproval by word or deed; their silence breaks their covenant; Allah says: “And fear a trial which will not strike specifically those who did wrong among you” (Surah al-Anfal 25). Such was the law of Allah concerning the she-camel of Saleh: Uhaymir, that is Qudar ibn Salif, hamstrung the she-camel, his people held back, and Allah seized them all for his sin: “Their Lord crushed them for their sin and levelled the land, fearing no consequence” (Surah ash-Shams 14-15). The messenger of Allah (peace be upon him) had made a truce with the Jews of Banu Nadir; part of them plotted to kill him, he counted that as their breaking of the covenant, marched against them and expelled them. He had also treated with the Jews of Banu Qurayza; part of them aided Abu Sufyan ibn Harb against him on the day of the Trench; it is said the three who helped were Huyay ibn Akhtab, his brother and another, while the rest stayed silent; the Prophet (peace be upon him) counted that as a breaking of the truce for all of them, marched against them, fought them, killed their men and captured their children. Likewise: when he treated with the associators of Quraysh in the year of al-Hudaybiya, Banu Bakr entered Quraysh's camp as their allies, and Khuza'a that of the messenger of Allah (peace be upon him) as his allies; Banu Bakr fought Khuza'a, a group of Quraysh aided Banu Bakr, and the rest of Quraysh stayed silent; the Prophet (peace be upon him) counted that as their breaking of the covenant, marched on Mecca and conquered it. Another version says none of Quraysh aided Banu Bakr: a man of Banu Bakr killed a man of Khuza'a, Quraysh stayed silent without disavowing Banu Bakr, and the Prophet (peace be upon him) counted that as their breaking of the covenant; this shows that the one who holds back falls under the ruling of the one who acts, for the covenant of one binds all, as the truce made by Suhayl ibn Amr for himself and the associators of Quraysh, and the safe-conduct made by Abu Sufyan for himself and Quraysh: the breach of one broke it for him and for the one who approved. No difference in ruling between the merchants and the rest according to the sound position; another position says that if the merchants break it without the chief and the nobles knowing, their covenant is not broken, just as their covenant had no effect. Likewise if the chiefs break it and the followers refuse: two positions on their breaking; the argument for breaking is that the covenant no longer subsists for the follow-up; the sound position is that if they disavow by word or deed, withdrawing or sending the imam word that they remain in the covenant, they are not broken. When the breach falls upon part of them: if they separate themselves, well and good; otherwise the imam does not attack them by night without warning, and he sends to those who did not break it, ordering them to separate themselves or hand over the breakers; if they fail to do so though able, they become breakers as well. One who is seized and admits being one of the breakers, or against whom proof is established, falls under the ruling; otherwise his oath that he did not break it is accepted. When the truce is broken while they are in their own land, attacking them is lawful, including a night attack, whether they know the covenant is broken or not, for they have become what they were before the truce. If they are in our land, we do not fight them: we conduct them to a place where they are safe from us and from the people of our covenant, even at the edge of our territory; whoever has two refuges may settle in either, and the imam chooses between them; whichever he settles in, it is incumbent on him to point out the safer road (al-Hawi al-Kabir 14/379-381, al-Muhadhdhab 2/263, al-Bayan 12/324-326, Rawdat at-Talibin 7/55-56, Mughni al-Muhtaj 6/97-98, an-Najm al-Wahhaj 9/444, Kanz ar-Raghibin 4/585).
The Hanbalis teach: when the disbelievers break the covenant, the imam fights them; if part of them break it without the rest, there are two cases. The first: the rest remain silent about the breaker, with no disavowal, no letter to the imam and no public repudiation; all are breakers of the covenant, through their satisfaction and approval of the deed: when the Prophet (peace be upon him) made a truce with Quraysh, Khuza'a entered with him and Banu Bakr with Quraysh; Banu Bakr attacked Khuza'a, part of Quraysh aided them, the rest stayed silent, that was the breaking of their covenant, and the messenger of Allah (peace be upon him) marched against them and fought them; their silence proves their approval, as their silence at the making of the covenant had brought all of them into it. The second: those who did not break it disavow the breaker by word, by manifest deed, by withdrawal, or write to the imam that they disavow what he did and remain in the covenant: their covenant is not broken, and the imam orders them to separate themselves so he may take the breaker alone; if they refuse to separate themselves or to hand over the breaker, they become breakers, for they prevented him from being seized and take his status; if they cannot separate themselves, their covenant is not broken, for they are like captives. If the imam captures some of them and the captive claims he did not break it and the doubt remains, the captive's word is accepted, for only he can know it (al-Mughni 9/38-40, al-Kafi 4/344, Kashshaf al-Qina' 3/128, Sharh Muntaha al-Iradat 3/89-90, Matalib Uli an-Nuha 2/624).
The Shafi'is teach that their covenant is broken, besides what has just come, by the following: first, their express declaration of the breach; second, fighting us where no plea excuses them, as has come, for if they have an excuse, for instance aiding the rebels under compulsion, it is not broken; third, sheltering spies of the associators; fourth, corresponding with the people of war while exposing our weak points; fifth, killing a Muslim or a dhimmi; sixth, seizing property; seventh, insulting Allah; eighth, insulting the Quran; ninth, insulting the messenger of Allah (peace be upon him). As soon as they declare the breach, or fight the Muslims, or shelter spies, or correspond with the people of war exposing the Muslims, or kill a Muslim, or seize property, or insult the messenger of Allah (peace be upon him), their covenant is broken as dhimma is broken by these, with no need of the judge's ruling; and their fighting breaks it only when they chose it: if the rebels compelled them and that is established, it is not broken. The breach is not limited to these cases: every cause that breaks dhimma breaks the truce with certainty, for the truce is weaker, not consolidated by the payment of the jizya (al-Bayan 12/324-326, Rawdat at-Talibin 7/54, Mughni al-Muhtaj 6/97, an-Najm al-Wahhaj 9/442-443, Kanz ar-Raghibin 4/585).
The Hanbalis teach that the covenant of the muhadanun is broken: by fighting; by siding with our enemy against us; by killing a Muslim; by seizing property. As soon as they commit one of these, their covenant is broken, their blood and property become lawful and their children are captured: the Prophet (peace be upon him) killed the men of Banu Qurayza when they broke his covenant, captured their children and took their property; and when he treated with Quraysh and they broke his covenant, what had been forbidden to him of them became lawful. If part of them break it, the detail given earlier applies (al-Kafi 4/344, Kashshaf al-Qina' 3/128, Sharh Muntaha al-Iradat 3/89-90, Matalib Uli an-Nuha 2/624).
When the imam concludes a truce with some associators, he must repel any Muslim or dhimmi who seeks to harm them, for the covenant requires it. The Muslims and the dhimmis must compensate for what they destroy of their persons and property, and incur the disciplinary punishment. The imam is not bound to protect them from one another, nor to protect them from the people of war: the truce was not concluded to protect them, but to suspend fighting, unlike the dhimmis, who committed themselves to the laws of the Muslims: that is why the imam must repel anyone who seeks to harm them, which the former have not done.
Ibn Qudama writes: if other people plunder the muhadanun and capture them, the imam is not obliged to rescue them, and the Muslims may not buy them, for they are under covenant: neither harming them nor enslaving them is allowed; ash-Shafi'i reports what indicates this, while admitting the other view, which is the madhhab of Abu Hanifa: the imam being not obliged to defend them, their enslavement is not forbidden, unlike the dhimmis. On this last view, if the Muslims seized their aggressors and their property and recovered them, they are not obliged to give them back; on the first view, restitution is obligatory, as the property of the dhimmis is given back (al-Mughni 9/240-241, al-Bayan 12/313, Rawdat at-Talibin 7/54, Mughni al-Muhtaj 6/97, an-Najm al-Wahhaj 9/442, Kanz ar-Raghibin 4/585).
A pact limited to a term ends at the expiry of the term without need of renunciation, even if one of them enters Islam during a limited truce and the term expires while he is inside dar al-islam: he remains safe until he returns to his refuge, for attacking him would suggest treachery and deceit, and one must guard against that as far as possible (Badai' as-Sanai 7/110).
Mu'awiya had a covenant with the Romans and marched towards their land until the term drew near, then marched out against them. A man came on a horse crying: Allah is greater, Allah is greater: fidelity, not treachery. They looked: it was Amr ibn Abasa. Mu'awiya sent for him and questioned him. He said: I heard the messenger of Allah (peace be upon him) say: whoever has a covenant with a people must neither tighten nor undo any knot until its term expires or he denounces it to them on equal terms. Mu'awiya turned back.
reported by Abu Dawud (2759), Ahmad (17056), at-Tirmidhi (1580) and an-Nasa'i (8732); sahih hadith
The jurists of the four schools agree that if the imam fears their treachery on the basis of an outward sign pointing to it, not a mere conjecture, he may denounce their covenant to them, according to the word of Allah: “If you fear from a people betrayal, throw back to them their covenant on equal terms” (Surah al-Anfal 58). Allah permitted His messenger, when he expected cunning from his enemies, to denounce the breach to them, so that no one could say: you broke the covenant by raising war. He must then inform them that he intends to attack them and that the peace between them is lifted, so that the two parties stand on equal footing; he may not begin with fighting or a raid before informing them of the breach, according to the verse, and because they are safe by effect of the covenant: killing them or taking their property is not allowed. And the truce is not broken without the imam's ruling, according to “throw back to them their covenant on equal terms”, and because breaking it for fear of treachery requires examination and judgment, hence the ruler.
If it is objected: how can the pact be broken on mere fear of treachery, when fear is conjecture without certainty, and how does the certainty of the covenant fall through conjecture of betrayal? Two answers. The first: fear here means certainty, just as hoping may mean knowing, as in “do you expect from Allah other than due majesty?” (Surah Nuh 13). The second: when the signs of treachery appear and its indications are established, denouncing the covenant becomes obligatory, so as not to linger in ruin; conjecture suffices here out of necessity, and this condition is habitually implicit in the covenant, for nothing more can be done (Badai' as-Sanai 7/109, Ahkam al-Qur'an 2/240, Ahkam al-Qur'an 3/162, al-Muhadhdhab 2/263, al-Bayan 12/327-328, Rawdat at-Talibin 7/56, Mughni al-Muhtaj 6/98, an-Najm al-Wahhaj 9/445, Kanz ar-Raghibin 4/585, al-Mughni 9/240).
The jurists of the four schools agree that no truce is concluded providing for returning to the disbelievers the woman who comes to us as a Muslim; and likewise if she converts with us after coming from them, according to the following report: the Prophet (peace be upon him) concluded the peace of al-Hudaybiya, then Umm Kulthum bint Uqba ibn Abi Mu'ayt came to him as a Muslim; her two brothers came demanding her, the Prophet (peace be upon him) intended to return her to them, but Allah prevented him by His word: “do not return them to the disbelievers” (Surah al-Mumtahanah 10).
When Suhayl ibn Amr concluded the pact that day, it was among what he stipulated on the Prophet (peace be upon him) that anyone coming from them, even on the religion of the Prophet (peace be upon him), would be returned, and the believers were displeased; the Prophet (peace be upon him) accepted, and that day he returned Abu Jandal to his father Suhayl ibn Amr. The believing women emigrated, and Umm Kulthum bint Uqba ibn Abi Mu'ayt was among those who went out to the messenger of Allah (peace be upon him) that day; her people came asking the Prophet (peace be upon him) to return her to them, but he did not return her, because of what Allah sent down concerning them.
reported by al-Bukhari (2564)
The Prophet (peace be upon him) announced that Allah forbade making peace over the women, and he refrained from then on from returning them, all of them; for it cannot be guaranteed that she will not be turned from her religion, given the weakness of her judgment, nor that she will not be married to an associator: married women are forbidden to their disbelieving husbands and cannot defend themselves; added to this are their weakness and the honour of Islam, according to His word: “they are not lawful for them, nor are they lawful for them” (Surah al-Mumtahanah 10).
If a truce is concluded containing this clause, the clause is void by consensus, for it makes lawful the unlawful; and the sharia has settled on forbidding the return, whether she has kin or not. As for the validity of the pact itself: two positions. The soundest among the Shafi'is, which is one of the two Hanbali positions: the pact stands despite the nullity of the clause. The Hanafis, who are the opposite of the sound Shafi'i position and the second Hanbali position: the pact does not become void, for the truce is not firmer than marriage, and marriage does not become void through corrupt clauses. As for the disbelieving woman, she is returned to them.
The Hanafis teach: if the imam grants a covenant including this, he must not carry out the clause, for it contradicts the law; the messenger of Allah (peace be upon him) said: “every condition not in the Book of Allah is void” (reported by Abu Dawud). The origin is that the messenger of Allah (peace be upon him) treated with the people of Mecca on the day of al-Hudaybiya, returning whoever came from them as a Muslim, then Allah abrogated that clause by His word: “if you know them to be believers, do not return them to the disbelievers” (Surah al-Mumtahanah 10); the resulting principle is that peace is concluded with lawful clauses whose fulfilment is possible and corrupt clauses whose fulfilment is impossible: the imam examines the lawful clause and upholds it, and the corrupt clause and voids it (Sharh as-Siyar al-Kabir 4/1595, Sharh Fath al-Qadir 5/460, ash-Sharh al-Kabir 2/528, Sharh mukhtasar Khalil 3/151, adh-Dhakhira 3/449, Ahkam al-Qur'an 4/229, al-Muhadhdhab 2/260, al-Hawi al-Kabir 14/357, al-Bayan 12/310, Rawdat at-Talibin 7/52, Mughni al-Muhtaj 6/98, an-Najm al-Wahhaj 9/445-446, Kanz ar-Raghibin 4/585, al-Mughni 9/242, 272, al-Kafi 4/341, al-Mubdi' 3/400, al-Insaf 4/214, Kashshaf al-Qina' 3/129, Sharh Muntaha al-Iradat 3/86, Matalib Uli an-Nuha 2/587).
The jurists differ over the clause providing for returning to the disbelievers the man who came from them as a Muslim: is this clause valid or void?
The Hanafis and some Malikis, such as Sahnun, Ibn al-Majishun and Ibn Habib, teach that the clause is invalid and must not be carried out. The word of Allah: “if you know them to be believers, do not return them to the disbelievers” (Surah al-Mumtahanah 10) is the proof of abrogation for the men too, for there is no difference between women and men in this; the harm of the Muslim's return is even greater: when the rule was prescribed, whoever converted among them was not persecuted excessively by his clan, each tribe not attacking the convert of another, repression falling to his kin, who limited themselves to chaining, insulting and humiliating him; in Mecca, after the emigration of the Prophet (peace be upon him), there were about seventy weak people like Abu Basir and Abu Jandal ibn Suhayl, whose clans did not go as far as killing; the situation today is different. If the imam grants a covenant including this, he must not carry out the clause, for it contradicts the law; the messenger of Allah (peace be upon him) said: “every condition not in the Book of Allah is void” (reported by Abu Dawud); the origin is the treaty of al-Hudaybiya, then the abrogation, and the principle that the imam examines the lawful clauses, which he upholds, and the corrupt clauses, which he voids. If it is objected that the messenger of Allah (peace be upon him) stipulated this on the day of al-Hudaybiya and carried it out, returning Abu Jandal ibn Suhayl to his father and Abu Nasr to those who came for him, the answer is: yes, but it was a ruling abrogated by the Book; it concerned that day alone, and he knew the interest through revelation: “they will ask me for nothing today but that I give it to them”. Today, no Muslim is returned to the associators; if the Muslims are able, let them denounce the truce and then fight with the utmost intensity, without exposing the Muslim captives, until they rescue them (Sharh as-Siyar al-Kabir 4/1548, 1595, Sharh Fath al-Qadir 5/460, Hashiyat ad-Dasuqi ma'a ash-Sharh al-Kabir 2/528, at-Taj wal-Iklil 2/460, al-Bayan wat-Tahsil 3/46).
The Malikis according to the well-known position, the Shafi'is according to one position, and the Hanbalis teach that the clause returning the convert is valid, whether he has kin or not. The Hanbali school states it explicitly, according to what Abu Dawud and others reported from Bukayr ibn al-Ashajj, from al-Hasan ibn Ali ibn Abi Rafi':
Quraysh sent me to the messenger of Allah (peace be upon him); when I saw him, Islam was cast into my heart. I said: messenger of Allah, by Allah, I shall never return to them. He said: I do not break a covenant nor detain goods; return, then: if you have in your heart what you have now, come back. I left, then returned to the Prophet (peace be upon him) and converted. Bukayr adds: he informed me that Abu Rafi' was a Copt. Abu Dawud concludes: that was in those days; today it is no longer fitting.
reported by Abu Dawud (2758), an-Nasa'i (8674) and Ibn Hibban (4877); sahih hadith
The Prophet (peace be upon him) stipulated this in the treaty of al-Hudaybiya and carried it out: he returned Abu Jandal and Abu Basir, without restricting the clause to the man with kin, for the one whose kin tempt and mistreat him is like the one without kin. But this clause is valid only in case of proven need and certain interest; when it is stipulated, carrying it out becomes due in the sense that, if the disbelievers come demanding him, they are not prevented from taking him, and the imam is not forced to escort him with them.
The Hanbalis add that the imam may then order him secretly to flee and fight them: Abu Basir, when he came to the Prophet (peace be upon him) and two men came demanding him invoking the covenant, was handed over; the two escorted him until they reached Dhu l-Hulayfa, where they halted to eat dates; Abu Basir said to one of the two: your sword is a fine one; the other drew it saying it was fine and that he had tested it; Abu Basir asked to see it, seized it and killed his companion; the other fled until he reached Medina and ran to the mosque. The Prophet (peace be upon him) said on seeing him: “this one has seen panic”. The man announced the death of his companion and that he himself would be killed. Abu Basir arrived and said: Allah has fulfilled your covenant, you returned me and Allah saved me from them. The Prophet (peace be upon him) said: “woe to his mother! what a war leader, had he had men!”. Abu Basir understood that he would be returned and left for the seashore; Abu Jandal ibn Suhayl himself escaped and joined him; no man of Quraysh converted without joining him, until they formed a band that intercepted every caravan of Quraysh to Syria, killing its men and taking its property. Quraysh wrote to the Prophet (peace be upon him), appealing to him by Allah and kinship, and asked that whoever wished might come, and he would be safe; the Prophet (peace be upon him) wrote to them, and Allah sent down: “It is He who withheld their hands from you and your hands from them inside Mecca, after He made you victorious over them” (Surah al-Fath 24): their pride of ignorance was not acknowledging him as the prophet of Allah, refusing the basmala and barring the road to the House (reported by al-Bukhari (2581)).
Then the convert may hold apart, kill the disbelievers he can and take their property, without entering the treaty; if the imam attaches them to himself with the consent of the disbelievers, they enter the treaty and killing the disbelievers and taking their property become forbidden to them. It is reported from Umar ibn al-Khattab that when Abu Jandal came to the Prophet (peace be upon him) fleeing the disbelievers, chains in hand, his father rose and dragged him back. Umar said: I stood by Abu Jandal and said: endure, Abu Jandal; they are but associators, and the blood of any one of them is like the blood of a dog; he stood beside him, sword drawn, hoping he would take it and strike his father; Abu Jandal cursed his father and the matter concluded (reported by Ahmad (18930)). The Hanbalis specify: if there is no need, as when the Muslims are strong, the clause of restitution is invalid (al-Mughni 9/241-242, al-Mubdi' 3/401, al-Insaf 4/215, Kashshaf al-Qina' 3/129-130, Sharh Muntaha al-Iradat 3/87, Matalib Uli an-Nuha 2/587, ash-Sharh al-Kabir 2/528, Sharh mukhtasar Khalil 3/151, adh-Dhakhira 3/449, Mughni al-Muhtaj 6/100).
The Shafi'is teach within the madhhab that no truce is concluded providing for returning the man who came from them as a Muslim when he has no kin to defend him; but it is valid when he has kin, for the Prophet (peace be upon him) returned Abu Jandal to his father Suhayl ibn Amr: kinship protects and defends him, and he is not returned to others who would mistreat him, unless the one demanded can overpower the claimant and flee, in which case he is returned to him. On this meaning the return of Abu Basir is explained: two men came demanding him and he killed one of them on the way. If no one is demanded, or no clause is stipulated, restitution is never due. The meaning of restitution: leaving him in the hands of his claimant to carry out the clause, without forcing him to return, for forcing a Muslim to reside in the land of war is forbidden; on this meaning the return of Abu Basir and Abu Jandal is explained. The one demanded is not obliged to return, for the covenant does not bind him: that is why the Prophet (peace be upon him) neither disavowed his refusal nor the killing of his claimant, but was pleased with what he did; had the return been obligatory, he would have ordered him back to Mecca, and he may kill his claimant to defend his person and his religion, as in the affair of Abu Basir; he may even be incited to it before his claimant, according to Umar's word to Abu Jandal when he was returned to his father: “endure, Abu Jandal; they are but associators, and the blood of any one of them is like the blood of a dog”, an allusion aimed at his father; but telling him so openly is not permitted while they are under safety; except if one of them converts after the conclusion of the truce: he may say so openly, for no safety was stipulated over him and no clause reaches him (al-Bayan 12/311-312, Rawdat at-Talibin 7/63-64, Mughni al-Muhtaj 6/100-101, an-Najm al-Wahhaj 9/448-449, Kanz ar-Raghibin 4/587-588, al-Muhadhdhab 2/260).
The general rule of the Shafi'is: no truce is ever concluded providing for returning anyone who came from them as a Muslim, for it covers the man with kin and the man without; the one without kin risks being turned from his religion, which is why emigration is obligatory for him; the one with protecting kin does not risk this turning, and emigration is only recommended for him; the criterion is: everyone whose conversion in the land of war would not require emigration, the clause of his restitution is valid. In this sense must be understood: the Prophet (peace be upon him) ransomed the man of Uqayla after his conversion for two men of his companions, for the Uqayli had kin to defend him. And it is reported that the Prophet (peace be upon him) wanted to send Abu Bakr to Mecca in the year of al-Hudaybiya, but he refused, saying he had there neither clan nor kin to protect him; he wanted to send Umar, who said the same; he sent Uthman, who had there clan and kin, the Banu Umayya: they honoured him, listened to his letter, offered him the circumambulation of the House, which he refused before the Prophet (peace be upon him), and they nearly killed him (al-Muhadhdhab 2/260, al-Bayan 12/311-312, Rawdat at-Talibin 7/63-64, Mughni al-Muhtaj 6/100-101, an-Najm al-Wahhaj 9/448-449, Kanz ar-Raghibin 4/587-588).
The jurists of the four schools agree that the truce is valid only if the Muslims have necessity for it. The Hanafis specify: the necessity is that of preparing for fighting, when the Muslims are weak and the disbelievers, being strong, intend to pass on to other peoples; without necessity, the truce is not allowed, for it is the abandonment of the obligatory fighting, lawful only as a means to it: it then becomes fighting by means. Allah says: “So do not weaken and call for peace while you are superior, and Allah is with you” (Surah Muhammad 35): do not weaken in fighting the disbelievers and do not call them to peace while you hold the promised superiority, in support in this world and honour in the next; according to another reading: while you are the victors, and Allah is with you through His support (as-Siyar al-Kabir 1/165, al-Mabsut 10/86, Badai' as-Sanai 7/108, al-Ikhtiyar 4/146, al-Hidaya 2/139, Sharh Fath al-Qadir 5/458, al-'Inaya 7/460, Tabyin al-Haqa'iq 3/445, al-Jawhara an-Nayyira 6/263, Mukhtasar al-Wiqaya 2/349).
The Malikis require the need: without need, peace is not allowed, for fighting is obligatory until they pay the jizya; with an interest, such as a total or temporary inability to fight, it is allowed, with or without compensation, according to sound counsel for the Muslims, according to His word: “And if they incline to peace, incline to it” (Surah al-Anfal 61), and the Prophet (peace be upon him) treated with the people of Mecca (adh-Dhakhira 3/449, ash-Sharh al-Kabir 2/527, Sharh mukhtasar Khalil 3/150, at-Taj wal-Iklil 2/458).
The Shafi'is require need and interest: weakness in numbers, in wealth, in deterrence, or distance of the enemy, as the Prophet (peace be upon him) concluded the truce of al-Hudaybiya because of the great number of the associators and the prohibition on entering Mecca; or the hope of their conversion through mingling with the Muslims: the Prophet (peace be upon him) concluded a four-month truce with Sufwan ibn Umayya in the year of the Conquest although he was stronger than he, hoping for his conversion, and he converted before it expired; when he treated with the people of Mecca, people had more latitude, Muslims and associators met, the associators heard the Quran, and the fighters report that more associators converted in those years than before; or in exchange for the jizya, or their aid against other enemies. The absence of harm does not suffice, for it would be a truce without interest. If the disbelievers request the truce: if there is harm to the Muslims, they are not heard; otherwise two positions, the sound one being that it is not obligatory: the imam judges and does what is most beneficial (Rawdat at-Talibin 7/51-52, Mughni al-Muhtaj 6/95, an-Najm al-Wahhaj 9/438, Kanz ar-Raghibin 4/582-583).
The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis, require for the validity of the truce that the imam or his deputy conclude it: it is a pact granting safety to all the associators, like the covenant of dhimma, which no one else may conclude; it involves examination and judgment, carries great risk, and the imam or his deputy alone is charged with the great affairs, more aware of the interests and more capable of management; no one else holds the authority. If it were left to individuals, jihad would be suspended; the pact of an individual is invalid, but the protected person is not taken by surprise: he is conducted to a place of safety, for he entered believing in the validity of his safe-conduct (adh-Dhakhira 3/449, ash-Sharh al-Kabir 2/527, Sharh mukhtasar Khalil 3/150, at-Taj wal-Iklil 2/458, al-Bayan 12/301-302, Rawdat at-Talibin 7/51, Mughni al-Muhtaj 6/94, an-Najm al-Wahhaj 9/437, al-Mughni 9/238, al-Kafi 4/338, al-Mubdi' 3/398, Kashshaf al-Qina' 3/127, Sharh Muntaha al-Iradat 3/85, Matalib Uli an-Nuha 2/585).
The Hanafis teach that the imam's permission is not required: even if the imam or a group of Muslims treats without his permission, their truce is valid, for the truce is an interest of the Muslims, and the interest has been realised. The truce made by a Muslim with the people of war is lawful, like granting a safe-conduct; if he receives money without the imam knowing, at the expiry the imam takes it and pays it into the public treasury; if he learns of it before the expiry: if the truce is profitable, he lets it run and takes the money; otherwise he voids it, returns the money and denounces them to the enemy; if he voids it after part of the term has run, he returns all the money by istihsan, unlike the three-year truce concluded at so much per year where the imam, having collected everything, wants to break it after a year: he then returns two thirds, for here the contracts are separated by the separation of the payments, unlike the first case where the contract is single (Badai' as-Sanai 7/108, al-Bahr ar-Ra'iq 5/85-86).
The jurists differ over the duration: may one treat without a term, or with a fixed term, and which? The Hanafis, the Malikis, the Shafi'is according to one position and the Hanbalis within the madhhab teach that the truce is valid with a known and fixed term, even beyond ten years, if the Muslims need it according to what the imam judges beneficial: the interest is not measured by one duration rather than another; it is a pact admitting increase beyond ten years, like the contract of hire; the text of ten years is specified for a reason that exists beyond it too, namely that the interest of peace may be greater than that of war (Badai' as-Sanai 7/108, al-Bahr ar-Ra'iq 5/85-86, ash-Sharh al-Kabir 2/528, Sharh mukhtasar Khalil 3/151, at-Taj wal-Iklil 2/458, Tafsir al-Qurtubi 8/41, Rawdat at-Talibin 7/53, al-Ifsah 2/330, al-Mughni 9/238, al-Kafi 4/340, al-Mubdi' 3/399, al-Insaf 4/212, Kashshaf al-Qina' 3/127, Sharh Muntaha al-Iradat 3/85, Matalib Uli an-Nuha 2/585).
The Malikis add: the duration of the truce has no upper or lower limit, it is measured by the imam's judgment and by the need; it can be neither perpetual nor vague, but must be a fixed term, undetermined by length or brevity, according to what the imam sees; it is recommended that it not exceed four months, except in impotence, to anticipate a possible increase in the strength of the Muslims: where the interest lies, and elsewhere the interest decides (ash-Sharh al-Kabir 2/528, Sharh mukhtasar Khalil 3/151, adh-Dhakhira 3/449).
The Shafi'is and Ahmad according to one transmission teach that the truce does not exceed ten years when the Muslims are weak, for that is the maximum preserved from the messenger of Allah (peace be upon him): Allah made fighting the associators obligatory, and when the messenger of Allah (peace be upon him) treated with them, that duration, with the excuse accompanying it, marked the maximum the imam may grant in peace for the interest of Islam; Allah says: “Kill the associators wherever you find them” (Surah at-Tawbah 5): a general verse from which the ten-year duration was excepted by the treaty of al-Hudaybiya, and whatever exceeds remains under the grip of the general statement. If the imam exceeds ten years, the excess is void; validity within the ten years carries two positions, on the separation of the transaction, since he would have combined the lawful and the unlawful in one pact: the excess is void without disagreement; or the pact is valid in the lawful part, because of the absence of compensation and the ease of dealings with the disbelievers. If the term expires and the need remains, the pact is renewed. Without weakness of the Muslims, four months are allowed, according to “So travel freely through the land for four months” (Surah at-Tawbah 2), and such was the truce of the Prophet (peace be upon him) with Sufwan ibn Umayya. ash-Shafi'i says: the truce of the Prophet (peace be upon him) with the associators was four months, and that was at his strongest on the return from Tabuk. One year is not allowed, for it is the duration of the jizya, and they cannot be maintained without it; according to “Kill the associators wherever you find them”: general except what the proof excepts, namely four months; likewise a duration between one year and four months is not valid according to the more apparent view, for it exceeds the period of travel; on the second position it is allowed, being less than the duration of the jizya. All this concerns the persons bound by the pact; for their property, the pact may be concluded forever, and its validity for their descendants carries two positions. And if a disbeliever requests protection in order to hear the word of Allah, it is granted to him absolutely (Badai' as-Sanai 7/108, al-Bahr ar-Ra'iq 5/85-86, Rawdat at-Talibin 7/51-52, Mughni al-Muhtaj 6/95, an-Najm al-Wahhaj 9/438, Kanz ar-Raghibin 4/582-583).
Ibn Taymiyya, quoted by al-Mirdawi, adds: the pact without a term is valid, lawful and applied according to the interest, for Allah commanded denouncing the absolute covenants and completing the limited ones (al-Insaf 4/213). The Hanafis allow the absolute pacts: afterwards, if the imam wishes to break and denounce them, he does so, for it is a non-binding pact (Badai' as-Sanai 7/109). And what falls under the imam's judgment is not counted an obligation, though he must observe the soundest position (Rawdat at-Talibin 7/51-52, Mughni al-Muhtaj 6/95, an-Najm al-Wahhaj 9/438, Kanz ar-Raghibin 4/582-583).
May the pact be concluded without a term, in perpetuity? The Malikis, the Shafi'is within the madhhab and the Hanbalis teach that the imam may not treat without fixing a duration: the pact would be invalid, for the absolute implies perpetuity, and a perpetual truce leads to the total abandonment of jihad, which is forbidden. The Shafi'is according to another position judge it valid, but it reverts to ten years when the Muslims are weak; when they are strong, two positions: it reverts to four months, or to one year (al-Mughni 9/238, al-Mubdi' 3/398, al-Insaf 4/212, Kashshaf al-Qina' 3/127, Sharh Muntaha al-Iradat 3/85, Matalib Uli an-Nuha 2/585).
The jurists of the four schools state explicitly that the truce pact must be free of any corrupt clause; some clauses are corrupt by unanimous agreement, others are disputed. The first disputed clause: paying money. The majority of the scholars teach that, absent necessity, paying money to the disbelievers for the truce pact is not permitted; with necessity, it is allowed among them all, with details.
The Malikis teach that it is a corrupt clause absent necessity: taking money from the Muslims for the truce pact contradicts the interest of the sharia, which is taking the jizya from them, except for fear of an evil worse than the payment, such as their domination over the Muslims, in which case the payment is allowed; the messenger of Allah (peace be upon him) himself consulted on this in the affair of the Confederates when they surrounded Medina, and Mu'awiya and Ibn Marwan did it (ash-Sharh al-Kabir 2/572, Sharh mukhtasar Khalil 3/151, at-Taj wal-Iklil 2/458, Munh al-Jalil 3/229).
The Shafi'is teach that no truce is concluded with a corrupt clause, such as the truce for a payment: Allah has honoured Islam and its people, made it prevail over all religions, and promised Paradise to those who fight and are killed; after the reward of martyrdom and the honour of Islam, entering the humiliation of payment is not permitted absent necessity. This necessity is of two kinds. The first: a group of Muslims is surrounded in fighting or pressure where annihilation is feared: it is then allowed to pay money to save their blood. The messenger of Allah (peace be upon him) intended, in the year of the Trench, to treat with the associators for a third of the fruits of Medina; he consulted the Ansar, who said: if this is by the command of Allah, we hear and obey; if it is your own opinion, we do not accept it. Abu Salama reports from Abu Hurayra that al-Harith ibn Amr al-Ghifari, chief of Ghatafan, said to the Prophet (peace be upon him): give me half the fruits of Medina, or I fill it with cavalry and infantry. The Prophet (peace be upon him) answered: until I consult the two Sa'ds, meaning Sa'd ibn Mu'ad, Sa'd ibn Ubayada and As'ad ibn Zurara; he consulted them, and they said: if this comes from heaven, we submit to the command of Allah; if it is your opinion, we follow you; if it is neither the command of heaven nor your opinion, by Allah, in the days of ignorance we gave them not a single date without sale or compensation; how could we now that Allah has honoured us through you? The Prophet (peace be upon him) said to him: “you hear what they say”, and gave him nothing; yet this shows the lawfulness of payment in case of necessity, for total destruction is a greater evil than the humiliation of paying: he ransomed the greater of the two evils. The second kind: ransoming our captives in their hands when their persons are feared for and they are humiliated by torture or contempt: the imam may pay money to free them from humiliation and danger, and ransoming by captives is preferable; Abu al-Muhallab reports from Imran ibn al-Husayn that the Prophet (peace be upon him) ransomed one man for two men. The money paid to avert annihilation or ransom the captives is like property seized wrongfully: if the Muslims take it back by force, it is not spoils, but returned to its original owner, a Muslim or the public treasury; if they find it in the hands of a protected person: if the cause of the payment persists, it is not taken back, to avoid the return of the harm; if the cause has vanished, it is taken back and restored to whom it is due, without touching the rest of his property, in virtue of his protection (al-Muhadhdhab 2/260, al-Hawi al-Kabir 14/354-355, al-Bayan 12/306, Rawdat at-Talibin 7/52, Mughni al-Muhtaj 6/96, an-Najm al-Wahhaj 9/441, Kanz ar-Raghibin 4/584).
The Hanafis teach that there is no harm in the Muslims seeking peace from the disbelievers while paying for it, if compelled to it, according to His word: “And if they incline to peace, incline to it” (Surah al-Anfal 61): peace is allowed with or without compensation; peace for money to repel their evil belongs to fighting with wealth. It is allowed only in case of necessity, that is fear of annihilation: repelling annihilation is obligatory by any means; if the Muslims have no strength, the enemy overcomes them and takes their persons and property. Without necessity, it is not allowed, because of the humiliation of the Muslims and the giving of the inferior thing, that is diminution in religion (Badai' as-Sanai 7/108, al-Ikhtiyar 4/147).
The Hanbalis teach that one does not treat for a payment outside necessity, for it humiliates the Muslims; the necessity is fear for the Muslims of annihilation or captivity: that is allowed, for the captive may ransom his person with money, and here the payment bears a lesser humiliation to repel a greater evil: killing, capture and the captivity of children leading to their disbelief. Abd ar-Razzaq reports in the Maghazi, from Ma'mar and az-Zuhri, that the Prophet (peace be upon him) wrote to Uyayna ibn Hisn, who was with Abu Sufyan on the day of the Confederates: what do you think if I give you a third of the dates of the Ansar and you go back with the Ghatafan? Uyayna answered: if you give me the half, I will do it. Ma'mar reports from Ibn Abi Najih that Sa'd ibn Mu'ad and Sa'd ibn Ubayada said: messenger of Allah, in the days of ignorance he grazed his flocks around Medina without being able to enter it; now that Allah has brought Islam, we would give them this? The Prophet (peace be upon him) said: “then all the better”; had it not been permitted, the Prophet (peace be upon him) would not have offered it. It is also reported that al-Harith ibn Amr al-Ghifari wrote to the Prophet (peace be upon him): give me half the fruits of Medina, or I fill it with cavalry and infantry; the Prophet (peace be upon him) answered: until I consult the two Sa'ds, meaning Sa'd ibn Ubayada, Sa'd ibn Mu'ad and As'ad ibn Zurara; he consulted them, and they said: if this is a command from heaven, submission to the command of Allah; if it is your opinion and your inclination, we follow your opinion; otherwise, by Allah, in the days of ignorance we gave them not a single date without sale or compensation; how could we, Allah having honoured us with Islam? The Prophet (peace be upon him) said to his messenger: “do you hear?”; he showed him the offer to make known their weakness: had it not been allowed in case of weakness, he would not have shown it to him. As for the pact where they pay money to us, it is lawful by the consensus of the scholars (al-Mughni 9/239, al-Mubdi' 3/399, al-Insaf 4/213, Kashshaf al-Qina' 3/127, Sharh Muntaha al-Iradat 3/85, Matalib Uli an-Nuha 2/586).
The jurists require further that the pact be free of clauses forbidden by the sharia. The Hanafis teach: if people of war ask for peace on condition that, if the Muslims build a town on their land, they not be prevented from building a synagogue or church there and selling wine and pork there, it is not fitting to treat on these terms, for it amounts to granting diminution in religion and accepting what humiliates the Muslims; it can only be reached with proven need and necessity. If the imam grants a covenant including this, he must not carry out the clause, for it contradicts the law; the messenger of Allah (peace be upon him) said: “every condition not in the Book of Allah is void” (reported by Abu Dawud); and the principle stands: the imam upholds the lawful clause and voids the corrupt clause; observe that if they stipulated the display of fornication and the public hire of prostitutes, carrying it out would not be permitted, but the legal punishment would be applied to whoever commits fornication; the same applies here (Sharh as-Siyar al-Kabir 4/1547-1548).
The Malikis teach that the pact must be free of a corrupt clause, otherwise it is not allowed: such as the clause keeping a Muslim captive in their hands; keeping a village of the Muslims emptied of them; judging between a Muslim and a disbeliever; and taking money from us, except for fear of them, in which case everything forbidden becomes allowed (ash-Sharh al-Kabir 2/527, Sharh mukhtasar Khalil 3/150, at-Taj wal-Iklil 2/458, adh-Dhakhira 3/449).
The Shafi'is teach that the imam may not conclude the truce on forbidden clauses. Among them: the truce for a payment, as has come; the truce for a kharaj they levy on dar al-islam; the truce for returning the spoils of their children's captivity, for these are confiscated goods; if it is objected that the messenger of Allah (peace be upon him) returned to the Hawazin the spoils of their captives, the answer is that he returned them after their conversion, of his own accord and as a favour, which differs from an engagement made to associators by pact; the truce for entering the Sanctuary or settling in the Hijaz, which is not permitted; the truce for ending the fighting forever, for it suspends jihad; the truce without need, given their strength and the uselessness of treating; the truce for more than ten years, even with need; the truce for displaying their abominations in our land, crosses, wines and porks; the truce for exempting from the jizya whoever settles in dar al-islam; the truce for taxing our property at a tenth when we enter their land; the truce for abandoning the rescue of our captives in their hands; the truce “as they wish”, which is not valid, for it makes the disbelievers arbiters of the Muslims, and the Prophet (peace be upon him) said: “Islam prevails and is not prevailed over” (reported by Ahmad); and the truce for not returning the boy who comes to us as a Muslim, whether his disbelieving father demands him or not, likewise the insane, man or woman, and the Muslim slave adult and sound of mind. These clauses and their like are forbidden: if stipulated, they are void, and the imam must break the truce; the truce does not become void through the corrupt clause, unlike sales, whose corrupt clause voids the contract through the uncertainty of the price, and it is no firmer than marriage, which does not become void through corruption of the dowry. The imam is not bound to inform them of the nullity of the clauses before they demand them; if they insist, he then informs them that they are void in our sharia and cannot be applied; if they demand that he break the truce, he breaks it, unless annihilation is feared, in which case he may abide by it for the length of its necessity, as with the payment of money (al-Hawi al-Kabir 14/355-356, al-Muhadhdhab 2/260, al-Bayan 12/311, 320, Rawdat at-Talibin 7/52, 64, Mughni al-Muhtaj 6/96, 101, an-Najm al-Wahhaj 9/445, 449, Kanz ar-Raghibin 4/585, 588).
The Hanbalis teach that the pact must be free of the corrupt clauses: the clause breaking the truce with whichever of the two peoples he wishes, which is not valid, for it contradicts the very purpose of the truce; likewise the formula “I make truce with you as you wish”, which makes the disbelievers arbiters of the Muslims; likewise “as we wish” or “as so-and-so wishes”, or the clause stipulated for himself alone without them: all this is invalid, for it contradicts what the pact requires, as in sale and marriage; the clause returning the Muslim women, already detailed; the clause returning their dowry, which is void for contradicting what the pact requires; as for the word of Allah “and give back what they have spent”, Qatada says it is abrogated, and Ata, az-Zuhri and ath-Thawri say it is no longer applied today: it concerned the affair of al-Hudaybiya, when the Prophet (peace be upon him) had stipulated returning whoever came to him as a Muslim; the clause returning the discerning boy, for he resembles the woman in weakness of judgment and inability to escape; the clause returning the Muslim men without need; the clause returning their weapons, giving them some of our weapons or instruments of war; the clause giving them money from us in a place where payment is forbidden; the clause bringing them into the Sanctuary, according to the word of Allah: “The associators are but impurity, so let them not approach the Sacred Mosque after this year of theirs” (Surah at-Tawbah 28). If any of these corrupt clauses is stipulated, the clause is void, its fulfilment is neither due nor allowed, for it contradicts what the pact requires; the pact itself stands, like the covenant of dhimma, unlike the corrupt clauses of sale. As for the child who has not reached discernment and whose Islam is not valid, the clause returning him is allowed, for he is not a Muslim under the sharia. And as soon as the truce pact is void, those of the disbelievers who had entered dar al-islam believing in the safety are conducted to safety and return to the land of war, for the safety is null (al-Mughni 9/241-242, al-Mubdi' 3/400, al-Insaf 4/213, Kashshaf al-Qina' 3/129, Sharh Muntaha al-Iradat 3/86, Matalib Uli an-Nuha 2/587).
This chapter sets the constant rules of any agreement suspending hostilities: a pact is broken only on a serious sign of treachery, announced beforehand; fidelity to the covenant made is a moral and religious obligation; clauses contrary to elementary right, such as returning a convert to his persecutors, are void without voiding the whole; and every truce must serve the interest of the Muslims, never their humiliation.