بسم الله الرحمن الرحيم
Assalamu alaikum to my brother, Sheikh and Ameer.
1. In a discussion I had with one of the Shabab, we disagreed in regards to the women in the situation of war. Does the Hukm (ruling) of the women that go out to the battle field to encourage the army apply upon them or does the Hukm of Asraa' (captives/prisoners of war) apply to them whilst acknowledging that today there are women fighters like men in terms of carrying weapons, using aircraft, artillery or participate in naval warfare....
2) The following was stated in the publication of Introduction to the Constitution of the Khilafah State, (Mashroo' Dustoor Dawlat ul-Khilafah) in the fourth point of Article 188: "(In regards to) the actual warring states like Israel for example it is obligatory to take with it the state of war as the basis for all actions and dealings just as if we are in an actual war with it and this is whether a Hudnah (truce) exists between them or not, and all of its subjects are forbidden from entering the lands..." I referred to this article in the book Introduction to the Constitution, and I did not find any details explaining this article and its four points. The question here is: Is it permitted for the Khilafah State to have a Hudnah (treaty) with the Jewish entity whilst it is usurping our lands?
Wa alaikum assalam wa Rahmat Allahu wa Barakatahu,
Firstly: Yes, the Hukm (ruling) in respect to the women who go out to the battle field whether to encourage the troops or fight alongside them, is the same Hukm. However it is not permitted to kill the women who have come out to the battle scene to encourage the soldiers whereas it is permitted to kill those who are fighting. This is in accordance to the Hadith that is agreed upon on the authority of Naafi' that Abdullah Ibn 'Umar (ra) informed him:
"That a woman had been found killed in one of the battles of the Prophet (saw): فَأَنْكَرَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ قَتْلَ النِّسَاءِ وَالصِّبْيَانِ "So the Messenger of Allah (saw) condemned the killing of women and children."
This is in addition to a Saheeh Hadeeth collected by Abu Dawood from 'Umar Bin Al-Muraqqa' Bin Saifi Bin Rabaah who said: My father narrated that his grandfather Rabaah Bin Rabee' said: "We were with the Messenger of Allah (saw) in a military expedition and saw the people gathering around something so he sent for a man and said: «انْظُرْ عَلَامَ اجْتَمَعَ هَؤُلَاءِ؟» "Go and look at what they are gathering around?" He returned and said: Around a woman who has been killed. So he (saw) said:«مَا كَانَتْ هَذِهِ لِتُقَاتِلَ» "This one did not participate in the fighting." The Mafhoom (understanding) from this statement is that had she been fighting then it would have been permissible to kill her.
This is the difference; however in all other Ahkam, there is no difference between women who go to the battlefield to encourage the troops and those who fight alongside the troops.
This all applies to the case when women go out to the battlefield. However if the women remain in their houses without exiting to the battlefields then there is nothing in that regards to them.
And in all circumstances, the application of the Shariah rulings is referred to the Khaleefah and not to the leaders of the battlefields. And the action of the Khaleefah proceeds in accordance to the requirements of the war policy in dealing with the enemies. Since it is from the war-related dealings, which is at the discretion of the Khaleefah's command. He acts according to what he deems fit in regards to the enemy in agreement with the Ahkam Shari'.
As for the Hukm (legal ruling) of the Asraa (captives/prisoners of war), this applies to the male fighters because the word 'Aseer' (captive) when it is mentioned refers to the male fighter. The Hukm of the Asraa is mentioned in Surah Muhammad (saw) in the following Aayah:
فَإِذَا لَقِيتُمُ الَّذِينَ كَفَرُوا فَضَرْبَ الرِّقَابِ حَتَّى إِذَا أَثْخَنْتُمُوهُمْ فَشُدُّوا الْوَثَاقَ فَإِمَّا مَنًّا بَعْدُ وَإِمَّا فِدَاءً حَتَّى تَضَعَ الْحَرْبُ أَوْزَارَهَا ذَلِكَ وَلَوْ يَشَاءُ اللَّهُ لَانْتَصَرَ مِنْهُمْ وَلَكِنْ لِيَبْلُوَ بَعْضَكُمْ بِبَعْضٍ وَالَّذِينَ قُتِلُوا فِي سَبِيلِ اللَّهِ فَلَنْ يُضِلَّ أَعْمَالَهُمْ
"So, when you meet (in fight Jihaad In Allah's Cause), those who disbelieve smite at their necks till when you have killed and wounded many of them, Then bind a bond firmly (on them, i.e. take them as captives). Thereafter (is the time) either for generosity (i.e. free them without ransom), or ransom, until the war lays down its burden. Thus [you are ordered] but if it had been Allah's will, He himself could certainly have punished them (without you). But (He lets You fight), in order to test you, some with others. But those who are killed In the Way of Allah, He will never let their deeds be lost." [Muhammad: 4]
Therefore they are either released (Mannan) or they are ransomed by money or a prisoner exchange with Muslims captives or captives from the Ahl al-Dhimmah. Other than these two options is not permitted.
Secondly: The relationship of the Islamic State with belligerent countries (that are in an actual state of war) (Muharabah Fi'lan).
It appears that you still have an older version of the book, Introduction to the Constitution, as you mentioned that this is Article 188 whilst in the official version of 1431 AH (2010) it is Article 189. And secondly in the older version the subject of truce (hudnah) in the case of the actual war was not explained in detail whilst in the new official adopted version it has been detailed. We explain in it that the permanent truce (hudnah) is not permitted as it means the abandoning of Jihad. However, a temporary truce may be held with the disbelieving (kufr) countries by the entity on the land have not yet opened by Muslims. The Daleel (evidence) for this is the Truce of Al-Hudhaibiyah with the Quraish who were upon land that Muslims had yet to conquer.
As for the entity that is established entirely upon usurped Islamic land then it is not permitted to contract a Hudnah (truce) with it albeit permanent or temporary. The reality of the Truce of Al-Hudhaibiyah with the Quraish does not apply upon it because the reality is different. This is because the Quraish were established upon land which had not previously been conquered by the Muslims whereas the Jewish entity is established upon land which it has usurped from the Muslims. So the reality is different and as such the Treaty of Al-Hudhaibiyah is not applied upon it. Rather it is obligatory for the state of actual war to maintain this state of actual war whether or not a Hudnah has been convened between it and the illegitimate rulers in the Muslim lands. This continues until the usurping entity is removed and the land that has been usurped is returned to its rightful people.
((وَأَخْرِجُوهُمْ مِنْ حَيْثُ أَخْرَجُوكُمْ))
"And expel them from where they have expelled you."
This is because the Hudnah (truce) with the usurping entity means its recognition, its surrender of the land to the usurpers. This is forbidden in accordance to the Shariah and indeed it is a major crime and the one who does this will carry its sin.
The subject is discussed in full detail in Introduction to the Constitution.
Ata Bin Khalil Abu Al-Rashtah
16 Sha'aban 1434