Can Mushrikin make Mu'ahadat with Muslims?

Question

• As per 9:5, Jihad is warranted against all Mushrikin (except Daar al-'Ahd)
• As per 9:7, It is said that only Mu'ahadat made at al-Masjid al-Haram are valid
• As per 9:28, Mushrikin are not allowed to come near al-Masjid al-Haram

Mushrikin includes all non-Muslims, but Ahl al-Kitab has the option of paying Jizya to become Ahl al-Dhimma as per 9:29. But that doesn't explain formation of a Mu'ahadah to become Daar al-'Ahd.

As per Tafsir Ibn Kathir on 9:6, the Ahl al-Harb are allowed to come in to Daar al-Islam as Musta'min to make Mu'ahadat with the Muslims.

In summary, those who come from a land at war with Muslims to the area of Islam, delivering a message, for business transactions, to negotiate a peace treaty, to pay the Jizyah, to offer an end to hostilities, and so forth, and request safe passage from Muslim leaders or their deputies, should be granted safe passage, as long as they remain in Muslim areas, until they go back to their land and sanctuary.

How is this possible if al-Masjid al-Haram is off limits?

As per the Tafsir Tazkirul Quran by Maulana Wahiduddin Khan, no further treaty was signed with the Ahl al-'Ahd (Banu Kinana, Banu Khuza’a, Banu Dhamra) after the expiry of their treaties. That seems about right.

So, are Muslims not violating the Islamic Ahkam by having Mu'ahadat signed with Mushirikin? That too, being not in fixed terms. What are the views on the matter by the Madhaahib? Is this only done strategically and by breach of Ahkam for the greater purpose of calling more people to Islam?

Answer 1

Your understanding of 9:7 is incorrect. It does not say that the disbelievers need to be in the Masjid al-Haram to form a valid treaty in the future. Rather it means that at that point in time Allah voided the previous peace treaties with the exception of the treaties which had occured near Masjid al-Haram i.e. with some tribes who had made a pact with the Muslims subsequently to Hudaibiya but had not violated their pact unlike the Quraish. These were to be considered valid until their term expired or until the tribe violated the treaty.

As for the ruling on making a treaty in the future with other disbelievers then that is permissible provided that some conditions are met and not permissible otherwise. The madhabs agree on that, see Bada'i al-Sana'i, Mughni al-Muhtaaj, Kashshaaf al-Qinaa’ etc.

There is evidence for its permissibility in the Quran and Sunnah, and it is permitted to make new treaties even after the revelation of Surah at-Tawbah as from history we know that the sahaba sometimes made such treaties after the death of the Prophet ﷺ and there are ahadith which also evidence its validity such as:

اعدد ستا بين يدى الساعة، موتي ... ثم هدنة تكون بينكم وبين بني الأصفر فيغدرون

Count six signs that indicate the approach of the Hour: my death ... then a truce between you and Bani Al-Asfar (i.e. the Byzantines) who will betray you

^{— Bukhari}

Among the conditions for it to be permissible are:

• Such a treaty is not allowed unless there is a need or a valid interest is served by it. For example when the Muslims are weak and need time to gather strength. The peace treaty is not a goal itself rather it is a means of preparation for war, hence it is essentially a part of Jihad and not contrary to it. Making a treaty when the Musims are strong and the treaty serves no interest is not permitted:

  فلا تهنوا وتدعوا إلى السلم وأنتم الأعلون

  So do not weaken and call for peace while you are superior

  ^{— Quran 47:35}

• The treaty must be temporary with either an expiry date (majority opinion) or the option to cancel it after informing the enemy whenever the Muslims find it in their interest to do so.

  Fighting is commanded 'until' the disbelievers accept Islam ( 9:5) or become Dhimmis ( 9:29) whereas a peace treaty does not achieve that. Hence it can be only a tempoary break after which Jihad will resume.