Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut Tahrir, to Questions from Visitors to his Facebook Page "Fiqhi"
Answer to a Question
To Salah Fawzi
Question:
Assalamu Alaikum wa Rahmatullahi wa Barakatuhu,
To the dear brother, greetings,
In the book Muqaddimat ad-Dustur (Introduction to the Constitution), Volume 1, Article 95, the following is stated:
"As for initiating legal cases related to those who harmed Islam and the Muslims, it is because the Messenger ﷺ, when he conquered Makkah, declared the blood of a few individuals to be shed (lawful to kill), as they used to harm Islam and the Muslims during the Jahiliyyah. He declared their blood shed even if they were found clinging to the curtains of the Kaaba. Note that the Messenger of Allah said: 'Indeed, Islam wipes out what came before it' (narrated by Ahmad and At-Tabarani on the authority of Amr ibn al-Aas), meaning that whoever harmed Islam and the Muslims is excluded from this hadith."
I researched the reality of these individuals and found that some of them were Muslims who apostatized from Islam, and some did not embrace Islam and were killed. For those who were Muslims and apostatized, the original rule is that they should be punished for their apostasy. For those who remained in their polytheism and were among those who harmed Islam and the Muslims, they were punished by death or pardoned as the Imam of the Muslims saw fit, as mentioned in the article. However, in both cases, the rule "Islam wipes out what came before it" does not seem to apply to them, because as far as we know, "Islam wipes out what came before it" applies to those who have recently embraced Islam. Why then was this hadith cited in this article, given that some Sahaba had previously used the sword and killed Muslims—such as Khalid bin Walid and Wahshi bin Harb (may Allah be pleased with them)—yet the Messenger ﷺ did nothing to them after they embraced Islam?
May Allah bless you, guide your steps, and bring victory at your hands.
Salah Fawzi – Al-Quds Al-Sharif
The Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuhu,
It seems there is some confusion in understanding the issue. The hadith of the Prophet ﷺ narrated by Ahmad and At-Tabarani on the authority of Amr ibn al-Aas:
إِنَّ الإِسْلامَ يَجُبُّ مَا كَانَ قَـبْلَهُ
"Indeed, Islam wipes out what came before it."
This indicates that if a disbeliever embraces Islam, whatever occurred from them before Islam is considered as if it never happened—meaning they are not held accountable for what they did before Islam. Their entry into Islam erases the sins they committed before Islam because Islam demolishes what preceded it. However, the fact that the Prophet ﷺ at the Conquest of Makkah (declared the blood of a few individuals shed who used to harm Islam and the Muslims in the Jahiliyyah, even if they were clinging to the curtains of the Kaaba), implies that they remain accountable for the harm they inflicted upon the Muslims, even if they embrace Islam. This is because the Prophet’s ﷺ saying: "even if they were found clinging to the curtains of the Kaaba" indicates that the Prophet ﷺ did not exclude the possibility of their entering Islam, but rather ordered their execution in any case. From this, we understand that those who harm Islam and the Muslims are punished for what they have done, even if they enter Islam. Thus, the Prophet’s ﷺ hadith, "Indeed, Islam wipes out what came before it," does not include them; they are exempted from this hadith. This means that their harm to Islam and the Muslims is not "wiped out" by Islam; rather, they are held accountable for it, and their matter is then left to the Imam: if he wishes, he may pardon them, and if he wishes, he may punish them.
The correctness of this understanding is supported by what An-Nasa'i narrated in his Sunan from Mus’ab bin Sa’d, from his father, who said:
لَمَّا كَانَ يَوْمُ فَتْحِ مَكَّةَ أَمَّنَ رَسُولُ اللَّهِ ﷺ النَّاسَ إِلَّا أَرْبَعَةَ نَفَرٍ وَامْرَأَتَيْنِ وَقَالَ اقْتُلُوهُمْ وَإِنْ وَجَدْتُمُوهُمْ مُتَعَلِّقِينَ بِأَسْتَارِ الْكَعْبَةِ عِكْرِمَةُ بْنُ أَبِي جَهْلٍ وَعَبْدُ اللَّهِ بْنُ خَطَلٍ وَمَقِيسُ بْنُ صُبَابَةَ وَعَبْدُ اللَّهِ بْنُ سَعْدِ بْنِ أَبِي السَّرْحِ فَأَمَّا عَبْدُ اللَّهِ بْنُ خَطَلٍ فَأُدْرِكَ وَهُوَ مُتَعَلِّقٌ بِأَسْتَارِ الْكَعْبَةِ فَاسْتَبَقَ إِلَيْهِ سَعِيدُ بْنُ حُرَيْثٍ وَعَمَّارُ بْنُ يَاسِرٍ فَسَبَقَ سَعِيدٌ عَمَّاراً وَكَانَ أَشَبَّ الرَّجُلَيْنِ فَقَتَلَهُ وَأَمَّا مَقِيسُ بْنُ صُبَابَةَ فَأَدْرَكهُ النَّاسُ فِي السُّوقِ فَقَتَلُوهُ وَأَمَّا عِكْرِمَةُ فَرَكِبَ الْبَحْرَ فَأَصَابَتْهُمْ عَاصِفٌ فَقَالَ أَصْحَابُ السَّفِينَةِ أَخْلِصُوا فَإِنَّ آلِهَتَكُمْ لَا تُغْنِي عَنْكُمْ شَيْئاً هَاهُنَا فَقَالَ عِكْرِمَةُ وَاللَّهِ لَئِنْ لَمْ يُنَجِّنِي مِنْ الْبَحْرِ إِلَّا الْإِخْلَاصُ لَا يُنَجِّينِي فِي الْبَرِّ غَيْرُهُ اللَّهُمَّ إِنَّ لَكَ عَلَيَّ عَهْداً إِنْ أَنْتَ عَافَيْتَنِي مِمَّا أَنَا فِيهِ أَنْ آتِيَ مُحَمَّداً ﷺ حَتَّى أَضَعَ يَدِي فِي يَدِهِ فَلَأَجِدَنَّهُ عَفُوّاً كَرِيماً فَجَاءَ فَأَسْلَمَ وَأَمَّا عَبْدُ اللَّهِ بْنُ سَعْدِ بْنِ أَبِي السَّرْحِ فَإِنَّهُ اخْتَبَأَ عِنْدَ عُثْمَانَ بْنِ عَفَّانَ فَلَمَّا دَعَا رَسُولُ اللَّهِ ﷺ النَّاسَ إِلَى الْبَيْعَةِ جَاءَ بِهِ حَتَّى أَوْقَفَهُ عَلَى النَّبِيِّ ﷺ قَالَ يَا رَسُولَ اللَّهِ بَايِعْ عَبْدَ اللَّهِ قَالَ فَرَفَعَ رَأْسَهُ فَنَظَرَ إِلَيْهِ ثَلَاثاً كُلَّ ذَلِكَ يَأْبَى فَبَايَعَهُ بَعْدَ ثَلَاثٍ ثُمَّ أَقْبَلَ عَلَى أَصْحَابِهِ فَقَالَ أَمَا كَانَ فِيكُمْ رَجُلٌ رَشِيدٌ يَقُومُ إِلَى هَذَا حَيْثُ رَآنِي كَفَفْتُ يَدِي عَنْ بَيْعَتِهِ فَيَقُومُ إِلَى هَذَا فَيَقْتُلُهُ فَقَالُوا وَمَا يُدْرِينَا يَا رَسُولَ اللَّهِ مَا فِي نَفْسِكَ هَلَّا أَوْمَأْتَ إِلَيْنَا بِعَيْنِكَ قَالَ إِنَّهُ لَا يَنْبَغِي لِنَبِيٍّ أَنْ يَكُونَ لَهُ خَائِنَةُ أَعْيُنٍ
"When it was the day of the Conquest of Makkah, the Messenger of Allah ﷺ granted safety to the people except for four men and two women, and he said: 'Kill them, even if you find them clinging to the curtains of the Kaaba: Ikrimah bin Abi Jahl, Abdullah bin Khatal, Miqyas bin Subabah, and Abdullah bin Sa’d bin Abi Sarh.' As for Abdullah bin Khatal, he was caught while clinging to the curtains of the Kaaba; Sa’id bin Hurayth and Ammar bin Yasir raced to him, and Sa’id outran Ammar—as he was the younger of the two—and killed him. As for Miqyas bin Subabah, the people caught him in the marketplace and killed him. As for Ikrimah, he set out to sea and was caught in a storm. The people on the ship said: 'Devote yourselves (to Allah alone), for your gods will avail you nothing here.' Ikrimah said: 'By Allah, if nothing can save me at sea except devotion (to Allah), then nothing else will save me on land. O Allah, I promise You that if You save me from my current situation, I will go to Muhammad ﷺ and put my hand in his, and I will surely find him forgiving and generous.' So he came and embraced Islam. As for Abdullah bin Sa’d bin Abi Sarh, he hid with Uthman bin Affan. When the Messenger of Allah ﷺ called the people to give the Bay'ah (oath of allegiance), Uthman brought him and stood him before the Prophet ﷺ and said: 'O Messenger of Allah, accept the Bay'ah of Abdullah.' The Prophet raised his head and looked at him three times, refusing each time, but finally accepted his Bay'ah after the third time. Then he turned to his companions and said: 'Was there not among you a wise man who would stand up to this one when he saw me withholding my hand from his Bay'ah, and kill him?' They said: 'How could we know what was in your heart, O Messenger of Allah? Why did you not signal to us with your eye?' He said: 'It is not fitting for a Prophet to have a deceptive look of the eyes.'" (Narrated by An-Nasa'i)
The Messenger ﷺ wanted the Muslims to kill Abdullah bin Abi Sarh even though he came to him as a Muslim seeking the Bay'ah. This indicates that declaring the blood of these individuals to be shed was absolute; their entry into Islam did not necessarily protect them from that. Rather, their fate reverted to the Imam: if he wished, he could punish them, and if he wished, he could pardon them.
Based on this, the fact that the Prophet ﷺ did not carry out the punishment on those who embraced Islam from among the disbelievers who had harmed the Muslims—as happened with Ikrimah bin Abi Jahl, for example—falls under the Imam’s pardon, as stated in the book Ajhizat ad-Dawlah (Institutions of State): "Since the Messenger ﷺ later pardoned some of them, such as his pardon of Ikrimah bin Abi Jahl, it is permissible for the Khalifah to initiate a case against them or to pardon them."
I hope that the confusion in understanding this matter has been resolved.
Your brother, Ata Bin Khalil Abu Al-Rashtah
17 Rabi’ al-Awwal 1445 AH Corresponding to 02/10/2023 CE
Link to the answer from the Ameer's (may Allah protect him) Facebook page