Safar 12, 1432 A.H, Monday, January 17, 2011

The Ruling on Dispossessing the
Disbelievers wealth in Dar al-Harb

Shaykh Anwar al-Awlaki

All praise is due to Allah and peace and blessings on his Messenger Muhammad (SAW).

Islam stipulates certain conditions for taking the wealth of the disbelievers. According to our classical scholars, it becomes permissible to take the disbelievers wealth for jihad-related purposes even if one is without an army or an Imam; and even within this there are restrictions. Due to the unfamiliarity of some on this subject, I felt the need to clarify this.

The Messenger of Allah (SAW) said, “I was sent before the hour with thesword, and my sustenance is under myspear, and humility and belittlementis the destiny of whoever defies mycommands.”[1]

This great ĥadīth reveals some important aspects about our religion:

It is narrated that some of the şaĥābah who moved to the land of al-Sham for jihad began acquiring farms and cultivating them. These were fertile lands with an abundance of water that they were not used to seeing in their native lands of Hijaz. When the khalīfah Umar heard that, he waited until harvest season and right before the şaĥābah started harvesting their land. He then ordered that they be burnt to the ground. He then assembled the şaĥābah and told them: "Farming is the role of the people of book. You should be fighting in the cause of Allah."[2]Umar did not want the şaĥābah to be tied down to this earth by professions that would hold them back from jihad in the path of Allah.

They wanted to be free from restrictions that would enslave them like the rest of humanity. The statement of Umar implies that the people who are attached to this life, the people of the book, should do this menial work. But you, the Muslims, should seek your provisions by the strength of your swords.
The Messenger of Allah (SAW) worked as a shepherd and then as a businessman before Islam. But after he received the revelation he gave that up and devoted his entire time to spreading the message of Islam. So contrary to what many people believe, Rasūlullāh (SAW)did not work after he became a prophet. When he made hijrah to Madinah his provisions were from the spoils of war.

Some Muslims today might feel uncomfortable consuming money that was seized by force from the disbelievers and would feel that income they receive as a salary or from business is a better form of income. That is not true. The best and purest form of income is booty. The Messenger of Allah (SAW) said: "…and the spoils of warare made halal for me…"[3]

I. Ghanīmah and fai’

These are the two types of wealth that are taken from the enemy. Following is the definition of each:

Ghanīmah is the money taken from the disbelievers by force by the strength of the mujahidin and in a way that raises the word of Allah.[4]

Fai' is what is taken from the disbelievers without fighting.[5]

Rulings of ghanīmah and fai’:

After ghanīmah is collected, one fifth of it is taken away in what is called "takhmīs" which I would refer to from now on as the "one-fifth rule". The rest (80%) is distributed among the fighters. There is a difference of opinion on how the one-fifth is then distributed. Some say it should be spent on jihad while others say it should be spent on the needs of Muslims while others say a portion of it should be spent on the scholars and judges of the Muslim state.

As for the money of fai', it belongs to the Muslim treasury.

So the difference between ghanīmah and fai' is that four-fifths of the ghanīmah belongs to the mujahidin while none of the fai' belongs to them.

Can ghanīmah and fai’ be taken from the disbelievers in the West today?

To answer this question we would need to answer the following two questions first:
 

1. Are the nations of the West classified as dār al-ĥarb (land of war) or dār al-'aĥd (land of covenant)?
2. If the West is dār al-ĥarb, are the Muslims who live there bound by a covenant that prohibits them from harming their countries of residence?

The answer to the first question:

First of all there is no Islamic leadership authorized to enter into covenants with the nations of disbelief in the present day. This is because the governments of the Muslim world have lost their legitimacy for many reasons, among them:

Therefore any agreements or treatise between the governments of the Muslim world and other parties are considered to be bāţil (illegitimate).

Second: Any nation that enters into war with the Muslims, or participates in invading a Muslim land has by de facto become dār al-ĥarb. Therefore all of the Western nations that have an active participation in the occupation of Afghanistan or Iraq or any other Muslim land are considered to be dār al-ĥarb.

The answer to the second question:

This is a critical issue and therefore would be covered in a separate paper, In Shā’ Allāh. However, my conclusion on this matter is that Muslims are not bound by the covenants of citizenship and visa that exist between them and nations of dār al-ĥarb.

It is the consensus of our scholars that the property of the disbelievers in dār al-ĥarb is halal for the Muslims and is a legitimate target for the mujahidin. Again this is a matter of consensus so there is no need to elaborate further on this point.

In the encyclopedia of fiqh it states that: "The property of the 'people of war' and their blood is halal for the Muslims and none of that is protected. Muslims have the right to take their lives and their belongings by all available means, because they do the same to us. This is an issue of consensus among the scholars."

In the past, Muslim armies would march into the lands of the disbelievers and would then confiscate their wealth and distribute it according to the rules of shari’ah: If the wealth was taken after fighting, it is ghanīmah and if it was taken without fighting it is fai'.

Now since the modern form of jihad is according to the guerrilla style of warfare rather than the conventional style that existed for the most part of our history, how does this affect the rulings of ghanīmah and fai'?

Today jihad is more clandestine and is performed by underground networks. The question that arises is: Can these networks of mujahidin use clandestine methods to appropriate wealth from the disbelievers in dār alĥarb? And if yes, is it fai’ or ghanīmah or neither? Further, how is it distributed?

To the credit of our early scholars, even these issues have been answered by them and are covered in our books of fiqh. So all praise is due to Allah, we do not have to refer to many of the present day scholars who are either trying to appease the apostate governments of the Muslim world or are trying to appease the Jews and the Christians.

If one would research our classical books of fiqh, one would find that out of the four madhab’s, the Hanafi School has covered such topics the most. This is probably because the Hanafi School was the official state madhab for the longest period in our history compared to other schools. It therefore covers issues relating to jihad in more detail because the foreign policy of the Islamic state was jihad in the path of Allah. I would therefore start by quoting the Hanafi books of fiqh first:

The Hanafi position: Al-Natiqi narrates that Imam Abu Hanifah used to say: "If an individual enters aloneinto dār al-ĥarb and has taken bootyand there are no Muslim soldiers inthat territory then it is not subjectedto the one-fifth rule. That is the caseif they are less than nine men. If theyreach nine then they are considered a"sarīyah" (A combat group)."

So according to Imam Abu Hanifah, if the group is less than nine, what they seize is not ghanīmah and therefore they are not obligated to submit onefifth[6] of it to the Muslim authorities.

In al-Hidāyah by Imam al-Mirghanani it states: "If one or two individuals enter dār al-ĥarb without the permission of the Imam and they take something, then it is not subjected to the one-fifth rule."

Here the author is stating that whatever is taken from the land of war by individuals and not by an army is not subjected to the regular rules of ghanīmah.

Al-Zayghali in his commentary on al-Hidāyah entitled, "Naşb al-rāyah fītakhrīj aĥādīth al-hidāyah" explains the preceding statement by saying:

"This is because ghanīmah is what is taken by force and not by means of theft or embezzlement and the rule of one-fifth only applies to ghanīmah. Now if this individual or pair of individuals enter with the permission of the Imam then there are two opinions. The most famous is that what they seize is subjected to the one-fifth rule because the permission of the Imam means that he is obligated to protect them by reinforcements if they are endangered and thus they have a protection force and (the author of al-Hidāyah states) "If a group who has a force enters and takes something, it is subjected to the one-fifth rule even if they didn’t seek permission from the Imam." This is because it is taken by force so it is considered ghanīmah and the Imam is still obligated to protect them because if he doesn’t then that will weaken the Muslims, unlike if only one or two persons enter then he is not obligated to protect them.""

Al-Zayghali is considering that what is taken is treated as ghanīmah if the individual or group of individuals has a force to protect them. This is not the case today with the mujahidin since there is no Imam or Islamic authority to offer them protection. Similar statements are made in other Hanafi references of fiqh such as "al-Mabşūt" and "Sharĥ al-Saer al-Kabīr" both by Imam al-Sarkhasi.

Therefore the Hanafi School considers that the one-fifth that is taken out from the booty and handed over to the Amir is in exchange of his protection. If this protection doesn’t exist then the individuals or group of individuals are not obligated to pay anything. So if an individual takes wealth from the disbelievers in the land of war and he does not use force but takes it by means of theft or embezzlement, it is not considered ghanīmah according to the Hanafi School. So then what is it?

We find the answer in another Hanafi reference, "al-Jawharah al-Nayerah" by Abu Bakr al-Abbadi who states in his commentary on al-Hidāyah: “If one or two individuals enter dār al-ĥarb without the permission of the Imam and they take something, then it is not subjected to the onefifth rule, because it is not ghanīmah since ghanīmah is what is taken by force and not by theft or embezzlement. But if one or two persons enter with the permission of the Imam then there are two opinions. The famous opinion is that it is divided into five portions, four of which goes to the ones who seized it. The second opinion is that it is not divided into five portions because it was taken by means of theft. The first opinion is the strongest because since the Imam permitted them, then they have taken it under his protection and not by theft." He continues, “If a group who has force enters and takes something, it is subjected to the one-fifth rule even if they didn’t seek permission from the Imam, because the group has strength and therefore what is taken by them is considered ghanīmah. But if they are a group who doesn’t have a protection force and they enter without the permission of the Imam then what they take is not considered ghanīmah because ghanīmah is what is taken by force and these people are similar to thieves because they steal secretly and therefore it is not ghanīmah. Therefore, in this case what each individual seizes is for him and no one has a share in it because it is considered mubāĥ (permitted) just like hunting or wood gathering."

Notice here that Imam al-Abbadi compares this booty to hunting and wood gathering. This is because wild beasts and timber in the forest are not the "rightful property" of anyone. The reasoning behind comparing booty to hunting and wood gathering is because the property which exists in the hands of the disbelievers is not considered to be rightfully theirs in our Islamic shari’ah because of their disbelief and when Islam does give them the right to own it, it is an exception to the rule such as in the case of ahl al-dhimma after they pay jizyah. This is why our scholars say that Allah has called booty as "fai’" which means "to return", so they say that the property of the disbelievers that doesn’t belong to them has "returned" to the believer: its "rightful owner."

In "al-Sear al-Saqhir" (Hanafi) the author states: “If one, two or three men from amongst the Muslims or the ahlal-dhimmah, who have no protecting force, enter into dār al-ĥarb without the permission of the Imam and they take booty and return with it to the land of Islam, then all of what they take is theirs and there is no one-fifth taken from it.”

The situation of Muslims living today in dār al-ĥarb would be similar to the above-mentioned case. The Muslims have no Imam to seek permission from, they have no protecting force, and what they can take would be by means of theft and embezzlement. So according to the rules set by the Hanafi School, the money seized by Muslims who are in dār al-ĥarb can be appropriated in its entirety by themselves.

However, I would like to note that even if a Muslim today is allowed to do that, there are some points that need to be taken into consideration: The Hanafi’s stated that a Muslim is "permitted" to steal money from the disbelievers in dār al-ĥarb but they didn’t state that there is a reward in doing so. They related that it is similar to hunting or wood gathering. In other words it is similar to making a living using other halal methods. However, we as Muslims should seek the wealth of the disbelievers as a form of jihad in the path of Allah. That would necessitate that we spend the money on the cause of jihad and not on ourselves.

We do not want such a fatwa to be misused by Muslims who are not concerned with jihad and are just interested in improving their own lot. The result of wide misuse of such a fatwa would cause authorities to restrict Muslims and view them with suspicion, which would eventually backfire on the ones who would truly want to serve the cause through such a fatwa.

The opinion of the other three schools of thought: Ibn Hamam in "Fatĥ al-Qadīr" says: “The madhab of al-Shafi'i, Malik and the majority of scholars is that what an individual takes by means of theft, it is considered ghanīmah.”

He then says: “But we and Imam Ahmad - according to one of two narrations attributed to him - refuse to call it ghanīmah because ghanīmahis what is taken by force and notthrough theft or embezzlement. Andsince what the thief takes is by meansof deception, then this is consideredas a halal form of sustenance just like wood gathering or hunting.”

Imam al-Sarkhasi narrates that Imam al-Shafi'i said: "Ghanīmah is property that the Muslims seize from the disbelievers by means of overpowering them." Imam al-Shafi'i then says: "And overpowering them includes using force openly or by deceiving them secretly since the Messenger of Allah (SAW) said that ‘war is deception’."

Therefore, according to al-Shafi'i, money that is taken from the disbelievers using clandestine methods should be considered ghanīmah even if the use of force is not involved. In "Tuhfat al-Muhtaj fi sharĥ al-Minhaj" by Ibn Hajar al-Haytami (Shafi'i), he states: "Theft from dār al-ĥarb is ghanīmah."

In "Al-Minhaj" by al-Nawawi (Shafi'i), he states: "Wealth taken from dār alĥarb by force is ghanīmah, so is what is taken by an individual or a group by means of theft."

In "Fatāwā al-Subkī" (Shafi'i) the author narrates the opinion of two of the most prominent Imam’s of the Shafi'i School: Imam al-Ghazali and Imam al-Rafi'i. He says: "Al-Ghazali said that if a Muslim steals money from the disbelievers then the entire amount becomes his property and the one-fifth is not taken from it.
Al-Rafi'i adopts the opinion that the thief owns four-fifths of it just like all money of ghanīmah."

In "Al-Furū'" by Ibn Muflih (Hanbali): "If a group or an individual - even if the individual is a slave - enter into dār al-ĥarb without the permission of the Imam, then their booty is fai'."

Even though the majority opinion among the Hanbali school is that what is taken is ghanīmah, the author above here mentions another opinion and that it is fai’. It means that the entire amount needs to be handed over to the Imam to be distributed according to his discretion.

Imam Ibn Taymiyyah states in "Al- Fatāwā" that if a Muslim enters dār al-ĥarb: "and kidnaps disbelievers ortheir children, or overpowers themin any way, then the souls and thewealth of the disbelievers are halalfor the Muslims."

II. The issue of ribā in dār al-ĥarb

Imam al-Kasani from the Hanafi School says: "If a Muslim or a dhimmī enters into dār al-ĥarb with a covenantand he enters with a ĥarbī ina transaction of ribā or another formof illegal transactions in Islam, that is permitted according to Imam Abu Hanifah and Muhammad."

However, we need to keep in mind that all of the other schools of thought have agreed that taking ribā from the "people of war" in dār al-ĥarb is not permitted for a Muslim.

That is also the opinion of Imam Abu Yusuf from the Hanafi school who states that: "What is not allowed for a Muslim in dār al-Islām is not allowed or him in dār al-ĥarb."[7]

III. In Conclusion

From the previous quotes of our early scholars the following can be deducted:

Implications on our present day work: Every Muslim who lives in dār al-ĥarb should avoid paying any of his wealth to the disbelievers whether it be in the form of taxes, duties, or fines. If a Muslim is allowed to deceive the disbelievers to appropriate their wealth then he is also allowed to deceive them to avoid paying them his wealth.

Even though it is allowed to seize the property of individuals in dār al-ĥarb, we suggest that Muslims avoid targeting citizens of countries where the public opinion is supportive of some of the Muslim causes. We therefore suggest that the following should be targeted:

In the case of the United States, both the government and private citizens should be targeted. America and Americans are the Imam’s of kufr in this day and age. The American people who vote for war mongering governments are intent on no good. Anyone who inflicts harm on them in any form is doing a favor to the ummah.

Careful consideration should be given to the risk vs. Benefit (i.e., maslaĥa) of any specific operation. Because of the very negative implications of an operation that is exposed, it is important that the benefits outweigh the risks.

For Muslims who are associated with groups that work for jihad, we recommend that the decision to involve oneself in any illegal activity to acquire money from the disbelievers be taken by the Amir and the shūrā of the jamā'ah. We say this because since there is a liability on the jamā'ah, the decision needs to be made by the jamā'ah. We also recommend that the decision on how to spend the money be left to the Amir and the shūrā. We need to mention however that if the jamā'ah adopt the view that what is seized is considered ghanīmah, then if a percentage less than 80% is to be given to the ones who seized it, that needs to done with the agreement of the participants of the operation because according to the rules of ghanīmah they are entitled to the full 80%. The same is said if the jamā'ah follows the Hanafi opinion.

It is recommended that Muslims who are not associated with groups that work for jihad and who acquire wealth from the disbelievers by illegal means to donate all that money to the cause of jihad unless if they are in need then they can take from it accordingly but not to exceed 80%. Islamic work cannot depend on volunteers. In order to support brothers who are willing to work full-time for Islamic causes, their income can be taken from wealth seized from the disbelievers. This should be one of the categories in which appropriated money is spent. This is especially important with jihad oriented groups because it is the work chosen only by the best of the best and therefore there is only a small pool of human resources that exists. So it is important to have as many brothers as possible devote their time to the work rather than spend their prime time seeking a living and only giving their spare time for the work. They should follow the sunnah of the Messenger of Allah (SAW) and live off of ghanīmah. This is especially important for brothers who are in positions of leadership in their jamā'ah.

Since jihad around the world is in dire need of financial support, we urge our brothers in the West to take it upon themselves to give this issue a priority in their plans. Rather than the Muslims financing their jihad from their own pockets, they should finance it from the pockets of their enemies.

In the end I would like to respond to what some weak Muslims might say that such fatāwā would "tarnish the image of Muslims in the West" and are "not good for the da’wah”.

In response to the claim that such fatāwā would "tarnish the image of Muslims in the West," I would say:

In response to the claim that such fatāwā are "not good for da’wah", I say:

Dear brothers: Jihad heavily relies on money. In Qur’an, the physical jihad is associated with jihad with one's wealth in eight verses. In every verse but one, jihad with wealth preceded the physical jihad. That is because without wealth there can be no jihad. Our enemies have realized that. Therefore they are "following the money trail" and are trying to dry up all the sources of funding "terrorism".

Our jihad cannot depend wholly on donations made by Muslims. The Messenger of Allah (SAW) sent many armies for the sole purpose of raiding caravans of the disbelievers. Not only was jihad financed by booty but also throughout our early history them Islamic treasury itself was mostly dependent on income generated from jihad. A tax called kharaj was placed on land opened by Muslims, enslaved POWs would be sold, and the people of the book paid jizyah. All of these sources were generated through jihad. Zakah and Şadaqah represented only a small portion of the income of the Muslim government.

It is about time that we take serious steps towards securing a strong financial backing for our work rather than depending on donations.

May Allah grant us the high status of the mujahidin and forgive us all.

Footnotes:

[1] Narrated by Ahmad.
[2] Taken from the book, "The explanation of the ĥadīth, 'I was sent before the hour with the sword…'" by Ibn Rajab al-Hanbali.
[3] Narrated by Bukhari.
[4] Al-Jurjani.
[5] Al-Sharĥ al-Kabīr by al-Maqdisi.
[6] Note: When scholars talk about the one-fifth rule it means that the money is classified as ghanīmah.
[7] Note: Some Muslims living in the West today claim that since it is allowed to take interest from the disbelievers then we are allowed to finance our houses through mortgaging. These Muslims have been deceived by Shayţān and the misguided scholars. The Hanafi School which these scholars quote to support their opinion only allows the Muslim to "take" interest and not to "pay" it. The reasoning of the Hanafi's is that taking interest from the disbelievers is taking money that is halal for us to start with since their lives and property are halal for Muslims. So how can we then use such a fatwa to claim that we are allowed to pay them our money?!

Taken From The INSPIRE Magazine Issue #4 Page 55-60

click here to read The INSPIRE Magazine Issue #4

 

Submitted by a Mujahid

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