Can Jihad at-Talab be initiated only against those who don't let Muslims preach Islam in their lands?

Question

السلام عليكم For the initiation of jihad at talab does the leader of the kuffars need to be sent an invitation to islam and if he rejects it do we fight them or do we fight them only when the kuffars leader don’t let muslims to preach islam peacefully within their lands?, what are the additional reason for jihad at talab?

Answer 1

Jihad can be initiated against any disbelieving political power. The only conditions being:

• They must have refused to accept Islam
• They also must have refused to pay Jizyah and come under Islamic rule - if they belong to the category to whom this option is available under Islamic law

As apparent in the following texts:

قاتلوا الذين لا يؤمنون بالله ولا باليوم الآخر ولا يحرمون ما حرم الله ورسوله ولا يدينون دين الحق من الذين أوتوا الكتاب حتى يعطوا الجزية عن يد وهم صاغرون

Fight those who do not believe in Allah or in the Last Day and who do not consider unlawful what Allah and His Messenger have made unlawful and who do not adopt the religion of truth from those who were given the Scripture - [fight] until they give the jizyah willingly while they are humbled.

^{— Quran 9:29}

قاتلوا من كفر بالله ... وإذا لقيت عدوك من المشركين فادعهم إلى ثلاث خصال ... ادعهم إلى الإسلام فإن أجابوك فاقبل منهم وكف عنهم ... فإن هم أبوا فسلهم الجزية فإن هم أجابوك فاقبل منهم وكف عنهم ... فإن هم أبوا فاستعن بالله وقاتلهم

Fight those who disbelieve in Allah ... When you meet your enemies who are polytheists, invite them to three courses of action ... Invite them to Islam, if they respond to you, accept it from them and desist from fighting against them ... If they refuse, then ask them to pay Jizyah. If they agree to pay, accept it from them and hold off your hands ... If they refuse that, then seek the help of Allah and fight them.

^{— Muslim}

So whether or not they allow preaching of Islam in their lands is not a factor, otherwise that would have been mentioned in the verse or hadith as an additional option:

fight until they let you preach freely in their country

ask them to let you preach freely, if they accept then restrain your hand

Since nothing like this is mentioned, it is obvious that it is not something which governs whether or not Jihad can be carried out. Indeed inventing such an option would be contrary to the above texts and to other texts on Jihad such as 9:123 and the ahadith such as this and this etc. This is agreed upon:

فأما الذين يحاربون فاتفقوا على أنهم جميع المشركين

The jurists agreed, with respect to the people who are to be fought, that they are all of the mushrikeen

^{— Bidaayat al-Mujtahid}

لا نعلم أحدا من الفقهاء يحظر قتال من اعتزل قتالنا من المشركين

We do not know of anyone among the jurists who considered it prohibited to fight against those who refrain from fighting us from the mushrikeen

^{— Tafsir al-Jassas}

واتفقوا أن قتال أهل الكفر بعد دعائهم إلى الإسلام أو الجزية إذا امتنعوا من كليهما جائز

There is agreement on the permission of fighting the disbelievers after calling them to Islam or Jizyah when they refuse both of these options

^{— Maratib al-Ijma'}

The Muslims might decide to prioritize Jihad against more active enemies who suppress Islam but that is not a prohibition of fighting those who do not.

Other than these it is also temporarily forbidden to fight against some group who has an existing ceasefire treaty (other than Jizyah) to which they have been true (9:4) and treachery is not feared from them (8:58). However it must be kept in mind that:

• Accepting the offer of such a treaty from the disbelievers is optional not obligatory. Unlike Jizyah which is obligatory to accept if the disbelievers agree to that.
• It is only permissible to accept such a treaty when there is a valid interest served by it.
• Such a treaty is temporary, it is only permissible to have a treaty that spans a fixed period of time like four months or one year etc. And on its expiry Jihad against the group can be resumed. This is also unlike Jizyah which is a perpetual treaty that is only cancelled if some violation is committed from the side of the disbelievers.

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As for giving invitation to Islam/Jizya before fighting: Then that is obligatory if the targeted disbelievers are being encountered for the first time and have not previously received the ultimatum.

After that it is recommended but not obligatory to renew the invitation every time they are to be fought. This allows for surprise attacks on an unprepared enemy, which is a valuable tactic for successful warfare. This is the majority madhab.

كتبت إلى نافع فكتب إلى أن النبي صلى الله عليه وسلم أغار على بني المصطلق وهم غارون

Nafi' wrote in reply to my letter that the Prophet (ﷺ) had suddenly attacked Bani Mustaliq without warning while they were heedless ... Nafi' said that Ibn 'Umar had told him the above narration and that Ibn 'Umar was in that army.

^{— Bukhari and Muslim}

يجب إن لم تبلغهم الدعوة ولا يجب إن بلغتهم لكن يستحب

It is obligatory to give the intimation if dawah has not reached them. And it is not obligatory to give intimation if dawah has previously reached them, but it is recommended.

^{— Sharah Nawawi}