43. According to the above verse, it is not lawful for Muslims to decide
unilaterally that their treaty with an ally is annulled either because of their
grievance that their ally did not fully observe the terms of the treaty in the
past or on ground of the fear that he would treacherously breach it in the future.
There is no justification for Muslims to make such a decision nor to behave
as if no treaty bound the two parties. On the contrary, whenever the Muslims
are forced into such a situation they are required to inform the other party,
before embarking on any hostile action, that the treaty was terminated. This
step is necessary in order that both parties are clear in their minds as to
where things stand. Guided by this principle, the Prophet (peace be on him)
laid down a basic rule of Islamic international law in the following words:
'Whoever is bound in treaty with a people may not dissolve it until either its
term expires, or he flings it at them (i.e. publicly declares that it had been
annulled).' (Abu Da'ud, 'Jihad', Babfi al-Iman yakunbaynaha al-'Aduw 'Ahad,
vol. 2, p. 75; Ahmad b. Hanbal, Musnad, vol. 4, pp. 111 and 113 - Ed.) The Prophet
(peace be on him) further elucidated this by sayling: 'Do not be treacherous
even to him who is treacherous to you' (Abu Da'ud, Kitab al-Buyu', 'Bab fi al-Rajul
Ya'khudh Hakkahu man tahe Yadih', vol. 2, p. 260 - Ed.)
These directives were not given merely in order that preachers might preach
them from the pulpit or embellish them in religious books. On the contrary,
Muslims were required to foliow these directive in their everyday lives, and
they did in fact do so. Once Mu'awiyah during his reign, concentrated his troops
on the borders of the Roman Empire in order to carry out a sudden attack immediately
after the expiry of the treaty. 'Amr b. 'Anbasah, a Companion, strongly opposed
this manoeuvre. He supported his opposition by reference to a tradition from
the Prophet (peace he on him) in which he condemned such an act of treachery.
Ultimately Mu'awiyah had to yield and call off his troops. (See the comments
on the verse by Qurtubi and Ibn Kathir. See also Ahmad b. Hanbal, Musnad , vol.
4, pp. 113 and 389 - Ed,)
To annul a treaty unilaterally and to launch an armed attack without any warning
was common practice in the time of ancient jahiliyah (Ignorance). That practice
remains in vogue in the civilized jahiliyah of the present day as well. Recent
instances in point are the Russian invasion of Germany and the Russian and British
military action against Iran during the Second World War. Such actions are usually
justified on the ground that a previous warning would have put the enemy on
the alert and would have enabled him to put up even stiffer resistance. It is
also justified by saying that a military initiative has the effect of pre-empting
a similar military initiative by the enemy. If such pleading can absolve people
of their moral obligations, then every offence is justifiable. In such a case
even those who commit theft, robbery, illegitimate sexual intercourse, homicide,
or forgery can proffer either one pretext or the other for so doing. It is also
amazing that acts which are deemed unlawful for individuals are deemed perfectly
lawful when they are committed by nations.
It should also be pointed out that an unannounced attack. according to Islamic
law, is lawful in one situation: when the ally has clearly violated the treaty
and has blatantly indulged in hostile action. Only in such an eventuality it
is not binding on Muslims to first declare the dissolution of the treaty. Not
only that, in such a circumstance it is also lawful to launch an unannounced
military action. In deriving this legal rule, Muslim jurists have drawn on the
Prophet's own conduct in regard to the Quraysh who had breached the Hudaybiyah
Treaty in dealing with Bana Khuza'ah. In this instance the Prophet (peace be
on him) did not notify them that the treaty had been annulled. On the contrary,
he invaded Makka without warning. (See Qurtubi's comments on the verse - Ed.)
Nonetheless, while acting on this exceptional provision one should be cautious
and take into account the totality of circumstances in which the Prophet (peace
be on him) took this step. That alone will help one to properly follow the Prophet's
example. For one should try to imitate the Prophet's example in its totality
rather than just one or other aspect of it depending on one's whim. What we
know from the Sirah and Hadith with regard to this is the following:
First, that the Quraysh had so openly violated the treaty that its annulment
had become absolutely clear. Even men of the Quraysh themselves acknowledged
that the treaty was no longer in operation. It is because of this realization
that the Qurayrsh had deputed Abu Sufyan to Madina to negotiate for its renewal
(Al-Tabari. Ta'rikh, vol. 3, p. 46 -Ed.) This fact clearly indicates that the
Quraysh were in no doubt that the treaty stood dissolved. It is immaterial whether
the party which annulled the treaty verbally declared so or not for it had been
violated so blatantly that no room for doubt was left.
Second, after the annulment of the treaty the Prophet (peace be on him) did
not say anything, either in clear or ambiguous terms, which could justify the
impression that he still regarded the Quraysh to be his allies or that the treaty
relations with them were still intact. All relevant reports, on the contrary,
suggest that when Abu Sufyan pleaded for the renewal of the treaty, the Prophet
(peace be on him) did not accede to that request, (Ibn Hisham. vol. 2, p. 395
- Ed.)
Third, the Prophet (peace he on him) himself initiated military action against
the Quraysh and he did so openly. There was no element of duplicity or fraud
in the Prophet's behaviour; there was no trace of pretence to be at peace while
secretly engaging in belligerent activities.
This is the full picture of the Prophet's attitude on the occasion. Hence the
directive of flinging the treaty in the face of the other party as embodied
in the above verse (i.e. informing the other party that the treaty had been
terminated) may only be disregarded in very special circumstances such as those
existing then. And should it be disregarded then this should be done in the
straightforward and graceful manner adopted by the Prophet (peace be on him).
Moreover, if some dispute arises with a people with whom the Muslims have a
treaty and the dispute remains unresolved even after direct negotiations or
international mediation; or if the other party appears bent upon forcing a military
solution to the problem, it would be lawful for Muslims to resort to force.
However, according to the above verse, force may be used by Muslims after making
a clear proclamation of the annulment of the treaty, and that the action taken
should be overt. To carry out military action by stealth is an immoral act and
can nowhere be found among the teachings of Islam.