by SW al-Zuhili · Cited by 64 — the abode of Islam (dar al-islam) and that of war (dar al-harb). 1 Qur’an, (Translation by Abdullah Yussuf Ali, Dar el-liwa, Riyadh, Saudi Arabia (nd), Reprint of
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Volume 87 Number 858 June 2005 269While the voices of “the clash of civilizations” are echoing loud, and the so- called “war on terror” is influencing the fate of some communities and many groups of individuals in various countries of the world, it is appropriate to recall the humanitarian values that rally nations and peoples around them. From an Islamic point of view we believe that the difference between people is one of God’s firmly established traditions, and that it is the source of wealth and harmony of the entire human race. There are many Islamic principles that Islam and international law Sheikh Wahbeh al-Zuhili* Dr Sheikh Wahbeh M. al-Zuhili is professor and head of the Islamic Law (ﬁ qh) and Doctrines Department of the Faculty of Shari’a, University of Damascus. He is the author of several books and studies on major issues related in particular to Islamic law. They include Th ects of war in Islamic law: A comparative study , and at-tafseer al-muneer (Exegesis of the Holy Qur’an), dar al-ﬁ kr, Damascus, 17 vols. Abstract This article by an Islamic scholar describes the principles governing international law and international relations from an Islamic viewpoint. After presenting the rules and principles governing international relations in the Islamic system, the author emphasizes the principles of sovereignty and non-interference in the internal affairs of other States and the aspiration of Islam to peace and harmony. He goes on to explain the relationship between Muslims and others in peacetime or in the event of war and the classical jurisprudential division of the world into the abode of Islam ( dar al-islam ) and that of war ( dar al-harb ). Lastly he outlines the restrictions imposed upon warfare by Islamic Shari’a law which have attained the status of legal rules. : : : : : : :* e author wishes to extend his gratitude to Dr Ameur Zemmali for his remarks during the preparation of this article, which is solely the responsibility of the author e article is based on a paper presented at the Conference on “ Protection of War Victims in Islamic Shari’a and International Humanitarian Law ”, organized by the International Islamic University, Islamabad, and the ICRC (Islamabad, Pakistan, 30 September – 2 October 2004).
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Sheikh al-Zuhili Œ Islam and international law 270endorse this standpoint. We shall explain some of them in general, those that apply to the relationship between Muslims and others in peacetime or in the event of war. We shall point out that Islamic States belong to the international community with all its organizations and instruments. We shall also take into account the existence of armed conflicts and situations of occupation inside and outside Islamic countries, despite the aspiration of the Islamic nations to live in peace and harmony with all nations and races. Rules governing international relations in peacetime Basic principlesIt is well known that Islamic preaching, including Islamic values and ethics, law and doctrine, has a universal tendency, for it aspires to see welfare prevail and Muslim principles spread throughout the entire world. It does so not for economic, material, racial, imperialist or nationalistic interests, but in order to achieve salvation, happiness, welfare, justice and prosperity for humanity as a whole, both in this life and the hereafter. Doctrine is based on recognition and confirmation of the absolute oneness of God both in Divinity and Lordship, without any blemish of atheism or paganism. Thus belief in God alone, belief in His angels, belief in His revealed books to His messengers, the hereafter and the acts of God are the pillars of this religion. There is no coercion in the Islamic religion, and no compulsion at all in the dissemination of this doctrine. Freedom, persuasion, dialogue and toler- ance are the foundation of the work by Islamic preachers for Almighty God. People are equal in terms of humanity, respect for human rights and human dignity, and no category or individual is better than others except in piety and good deeds. Cooperation is a principle that all people are required to observe. God says: “Mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that you may know each other. Verily the most honoured of you in the sight of God is (he who is) the most righteous of you. And God has full knowledge and is well acquainted (with all things).” 1 He also says: “Let there be no compulsion in religion: truth stands out clear from error …” 2 This is the principle of freedom of religion. During dissemination of the Islamic message, the principle and slogan are: put the mind and logic into gear, and enforce justice. God mentions this in many verses, such as this one: “Say: O People of the Book! Come to common terms as between us and you: that we worship none but God, that we associate no partners with Him; that we erect not, from among ourselves, lords or patrons 1 Qur’an, (Translation by Abdullah Yussuf Ali, Dar el-liwa, Riyadh, Saudi Arabia (nd), Reprint of ird Edition, Lahore 1938), 49/13. 2 Ibid ., 2/256.
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Volume 87 Number 858 June 2005 271other than God. If then they turn back, say ye, ‘Bear witness that we (at least) are Muslims (bowing to God’s will)’, ” 3 and also “And dispute ye not with the People of the Book, except with means better (than mere disputation), unless it be with those of them who inflict wrong (and injury): But say, ‘We believe in the Revelation which has come down to us and in that which came down to you, our God and your God is One, and it is to Him we bow (in Islam)’. ” 4 The principle of peace and security is a firmly established rule that should not be violated in any way, except in the case of aggression by others and when the enemy resorts to arms. God says: “Ye who believe! Enter into Islam whole-heartedly, and follow not the foot- steps of the evil one, for he is to you an avowed enemy.” 5 The rule governing the relationship between Muslims and People of the Book (Jews, Christians and others) is the ideal, most rational and unmistakable methodology, expressed in two verses of the Qur’an: “God forbids you not, with regard to those who fight you not for (your) faith nor drive you out of your homes, from dealing kindly and justly with them: for God loveth those who are just! God only forbids you, with regard to those who fight you for (your) faith, and drive you out of your homes, and support (others) in driving you out, from turning to them (for friendship and protec- tion). It is such as turn to them (in these circumstances), that do wrong.” 6 In their long history since the days of the Prophet, Muslims have been committed to following this path. Thus the Prophet’s Message and that of his Companions and followers was a faithful expression of the one and only mes- sage, addressed to the world’s monarchs, princes and leaders: “Join Islam and you will be unharmed, otherwise you would have committed the same sin as the common people (farmers, workers, traders and others). O People of the Book! Come to common terms as between us and you: that we worship none but God, that we associate no partners with Him, that we erect not, from among ourselves, lords or patrons other than God …”. 7In their diverse wars with Arabs, Persians or Romans, Muslims resorted to combat only in defence of their existence, to repel aggression, to empower themselves in order to raise the banner of freedom among all nations on an equal footing, to declare the absolute truth, namely servitude and submission to God alone, without any influence from an oppressive sultan, an unjust ruler or a despotic leader. The State of Islam (the Caliphate 8) was the only system based on the emancipation of the individual and society from the phenomenon of 3 Ibid ., 3/64.4 Ibid ., 29/46. 5 Ibid ., 2/208.6 Ibid ., 60/8-9. 7 Cf. ibid ., 3/64. 8 e political-religious State comprising the Muslim community and the lands and peoples under its domination in the centuries following the death (AD 632) of the Prophet Muhammad.
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Sheikh al-Zuhili Œ Islam and international law 272“domination and subordination” that prevailed in human society. For “domina- tion and subordination”, Islam substituted justice, consultation ( shura ), equality, mercy, freedom and brotherhood, which are the most noble Islamic foundations in the politics of government. 9In light of those fundamental values and premises, we can identify the rules of peace and security according to the Islamic doctrine and legislation and Muslim practices. Rules in the Islamic system that relate to the international order To establish the landmarks for external or international relations, the Islamic system provides for manifold rules. The most important of them can be summed up as follows. 10Human brotherhood Muslims are committed to Almighty God’s guidance, as expressed in the Qur’an, when He confirms the unity between creatures and the Creator, the unity of the human race, and fully fledged human brotherhood. Almighty God is the Creator and people are His creation, and His will and wisdom require that people be dis- parate in their intellectual faculty, opinions, ideas, beliefs and doctrines. People are free to choose what is in their best interest, in light of the divine revelation and the messages of reformist prophets and messengers from ancient times to the era of the Seal (the last) of the Prophets, Mohammed Ibn Abdullah, God’s blessings and peace be upon them all. After having made their choice and put their freedom into practice, people are responsible for the soundness of their choice. Their obligation is to choose what is to their real benefit, in such a way as to achieve their salvation and happiness in this life and the hereafter. Specifying the path to salvation, which consists in following the messages of prophets and messengers, peace be upon them, God says: “Mankind was one single nation, and God sent messengers with glad tidings and warnings, and with them He sent The Book in truth, to judge between people in matters wherein they differed, but the People of the Book, after the clear signs came to them, did not differ among themselves, except through selfish contumacy. God by His Grace guided the believers to the truth, con- cerning that wherein they differed. For God guides whom He will to a path that is straight.” 11 9 Hamed Sultan, Ahkam al-qanun ad-duwal -ash-shari`a al-islamiyya (Rules of international law in Islamic Shari’a ), Dar an-nahda al-`arabiyya, Cairo, 1970, p. 115. 10 Sheikh Rachid Ridha, Al-wahy al-muhammadi (Muhammadan Revelation), Dar-al-manar, Cairo, 1955, p. 228, and by the same author, Tafseer al-manar (al-manar exegesis) , Dar-al-manar, Cairo (nd), Vol. 10, pp. 139-144; Mohammed Abu-Zahra, Introduction to the as-siyar al-kabir of Mohammed Ibn al-Hassan ash-Shaybani, Cairo (nd), pp. 41-53 and Wahbeh M. al-Zuhili, Athar al-har qh al-islami e ects of war in Islamic law), reprint of the 3rd ed., Dar- kr, Damascus, 1998, pp. 141-147. 11 Qur’an, 2/213.
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Volume 87 Number 858 June 2005 273Warfare is only for defence, to prevent injustice and fend off aggres- sion. Persons should not be maimed, nor should they be starved, made to suffer thirst, tortured, severely abused, assaulted or their property plundered, in viola- tion of the sanctity of human brotherhood, except when necessity so requires and to ward off aggression. Honouring the human being and preserving human rights To honour the human being, to protect each person’s existence and to preserve their rights, regardless of their attitude or behaviour, are considered by the Holy Qur’an as basic elements in the perception of humankind. God says “We have honoured the sons of Adam, provided them with transport on land and sea, given them for sustenance things good and pure, and conferred on them special favours, above a great part of Our Creation.” 12The rights of the human being, whom God created and for whom He ensured a basic and permanent livelihood, namely the right to life, freedom, equality, justice, consultation and ethi cal conduct, are the essential and funda- mental principles that should be preserved. Relations with other human beings should be governed by those principles, under all circumstances, in dialogue and debate, in peaceful coexistence, in peace and in war. Thus, in God’s legislation and religion it is prohibited to harm or inflict injury on any human being because of their religion. Nor should they be coerced into changing their religion. Their dignity should be inviolable, they should not be tortured in a way that offends their dignity. Their honour should not be attacked, nor should their modesty be violated. They should not be oppressed, nor should they be subjected to any practices that contravene morality and codes of ethics. These are the fundamental principles to which Muslims or pious peo- ple of any religion are committed. Commitment to the rules of ethics and morality Ethics are the container of religion, the pillar of civilization, setting the basis and standards for dealings and relations between individuals and States alike: no human being, nation or State should be treated in a way that transgresses the values of ethics and morals, especially the criteria of virtue and nobility of spirit. It follows that enslavement, degradation, oppression and coercion for any reason whatsoever are prohibited. Demolition, destruction, the expulsion of human beings from their homes, houses or land are also forbidden, as is violation of the sanctity of honour and cherished values, even if the enemy’s behaviour is deemed excessive, base or dishonourable. He should not be treated in like manner, on the basis of reciprocity, because honour is one of God’s sac- rosanct values on earth. It is inviolable and untouchable, regardless of whether the person is an ally or an enemy, and irrespective of that person’s sex, reli- gion, belief or doctrine. Any offence or sin is a prohibited act and incurs guilt, whether it is committed by friend or foe. 12 Ibid ., 17/70.
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Sheikh al-Zuhili Œ Islam and international law 274In one of his messages to the leader of his armies, Sa’d Ibn Abi Waqas, Omar Ibn Al-Khattab 13 (may God be pleased with them) said: “I order you and those accompanying you to be most careful about committing o ences against your enemies, as the sins of the army are more fearful than their enemy. Muslims win because of their foe’s disobedience to God, had it not been for this, we wouldn’t have power over them, because their numbers surpass ours, they are better equipped than we are. Hence, if we are equal in wrongdoing, they would be superior to us. Unless we prevail because of our values and good deeds, we will never overcome them with our force. (…) Never say: Our enemies are worse than us, thus they will never empower us even if we commit an o ence, for many a people have been targeted and subjugated by people worse than they are.” 14 Justice and equality in rights and duties Justice in dealing with others is a natural right; it is also the basis for the survival of the governmental system. Oppression is a harbinger of the destruction of civilizations and prosperity, and of the collapse of the system. Hence, Almighty God says: “God commands justice, the doing of good …” ,15 whereby the doing of good is added to justice to eradicate an y rancour from people’s minds and foster friendship among them. God also says: “O ye who believe! Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear God. For God is well-acquainted with all that ye do.” 16 The Divine Saying related by the Prophet enjoins: “O My subjects! I forbade injustice to Myself, and forbade it among yourselves. Do not do others injustice”. 17 There is also a very famous and timeless saying by Caliph Omar, “Since when did you enslave people who were born free?” The right to equality in rights and duties and to litigation are natural rights, and the latter is complementary to and expressive of the right to justice. Hence no group or person, not even a monarch, should be treated with favour- itism, with discrimination over others. The Prophet (peace be upon him) says: “People are equal like the teeth of a comb”, 18 and in another saying, “If Fatima, daughter of Mohammed [my daughter], stole, I would cut off her hand.” 19One of the rare examples of justice in dealing with other nations is the story of the Samarkand people, who complained to the Omayyad Caliph Omar Ibn Abdul Aziz (717-720) about the Muslim commander Qutayba’s injustice and discrimina- tion when he conquered their country without any prior warning. Omar sent his 13 Omar I, Second Caliph of Islam (634-644). 14 Jamal Ayyad, Nuzum al-har -l-Islam (Statutes of war in Islam), Maktabat al-Khangi, Cairo, 1951, p. 43. 15 Qur’an, 16/90. 16 Ibid ., 5/8.17 Related by Muslim Ibn al-Hajjaj (according to Abi Dhar al-Gha ary), in his Sahih e Genuine). 18 Related by Abu Hatem-ar-Razi, in his ‘Ilal al Hadith , and others. 19 Related by the authors of the six books of Hadith, except for Ibn Majah.
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Sheikh al-Zuhili Œ Islam and international law 276wrong that has been done to you; but if ye show patience, that is indeed the best (course) for those who are patient.” 23Recognition of the international personality of other States The rise of the concept of statehood went hand in hand with recognition of the international personality of States, which was consolidated by the principle of “equal sovereignty among all members of the international community.” This is an acceptable principle from the Islamic point of view, for its purpose is to enable every State to live in freedom, security and peace, and be dedicated to fulfilling its obligations toward its people. No State has the right to infringe upon the sovereignty of another State, nor is it entitled to invade it or control its destiny and its wealth, as otherwise its sovereignty will be impaired. Furthermore, no State is entitled to interfere in the affairs of other States. The evidence that Islam respects this principle lies in its recognition of the principle of international peace and security for all States. The long history of Islam shows that the Muslim States have been faithful to a policy of peace with other nations and peoples. 24The Qur’an unequivocally provided that other States and peoples should be recognized: “And be not like a woman who breaks into untwisted strands the yarn which she has spun, a er it has become strong. Nor take your oaths to practise deception between yourselves, lest one party should be more numerous than another …” 25 In other words, beware of breaking your oaths like the unwise woman who broke her yarn a er having spun it with precision and perfection, thus letting it unravel into strands. When you use your oaths or pledges to deceive others and expose them to danger, you pretend to respect the oath while concealing your intention to break it and incline toward others, who are more powerful and wealthier. e words “more numerous than another” , are an unambiguous recognition of the diversity and multiplicity of nations, peoples and States. It is also prohibited to interfere in other nations’ affairs or attempt to weaken the structure of another State, as Muslims have no right to act in this manner. Consequently, this is a recognition or acknowledgement of the exis- tence of other nations and a prohibition of any attempts to eradicate them or the standards they have set for their guidance. Precedence given to the principles of peace, human brotherhood and international cooperation Islam is keen to reach solutions with other nations on the basis of peace and secu- rity, the recognition of partnership in shared interests, and respect for the bond 23 Ibid ., 16/126.24 See H. Sultan, op. cit . (note 9), p. 118. 25 Qur’an, 16/92.
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Volume 87 Number 858 June 2005 277of human brotherhood, since all creatures exist by divine order and divine will. Hence, it is prohibited to kill any human being except for a legal reason, otherwise it would be considered an aggression against the Creator’s own creation. A group of Muslim legal scholars have decided that the basis (general rule) of the relationship between Muslims and others is peace and not war, for God mentions this in many verses, including: – “Ye who believe! Enter into peace whole-heartedly, and follow not the foot- steps of the evil one, for he is to you an avowed enemy;” 26 – “O believers! When ye go forth to the fight for the cause of God, be discern- ing, and say not to everyone who meeteth you with a greeting, ‘Thou art not a believer’ in your greed after the chance good things of this present life!” 27 – “Therefore, if they withdraw from you but fight you not, and (instead) send you (guarantees of) peace, then God hath opened no way for you (to war against them);” 28 – “But if they (the enemy) incline towards peace, do thou (also) incline towards peace, and trust in God: for He is the One that heareth and knoweth (all things).” 29 Accordingly, those legal scholars decided that the reason for combat in Islam is to fight those who are outside the law or to fend off aggression, and not atheism or religious difference. The evidence is that the killing of civil- ians or non-combatants is prohibited, and dhimma (covenant) agreements are concluded with non-Muslims who live in the abode of Islam in peace and with- out complaints. Furthermore, Islam encourages new venues for interaction and trade with other nations, in order to establish good relations between Muslims and others. The legal scholar Ibn as-Salah says: “the original opinion is to keep the atheists and settle them down, because Almighty God does not wish to exter- minate the creatures, nor did He create them to be killed. However, they may be killed because they inflict injury and not as a punishment for their atheism. Life on earth is not for punishment, but punishment is in the hereafter … If the matter is as such, then it is not allowed to say: killing them is the rule.” 30Advocates of the opposing view hold that the rule in the relationship between Muslims and others is war, not peace. This is a confirmation, or rather a description, of bad relations that prevailed in the past because of continuous attacks on Muslims and recurrent wars between Muslims and others. The aim of that counter-trend was perhaps to boost the morale of combatants so that they would not lay down their arms, relax and rest, but would be ready for combat, determined to persevere against adversaries who were surrounding Muslims on all sides. Its supporters argue that in the large-scale wars ( maghazi , expeditions 26 Ibid ., 2/208.27 Ibid ., 4/94.28 Ibid ., 4/9029 Ibid ., 8/61.30 Makhtut (manuscript) fatawa Ibn as-Salah, Dar al-kutub of Cairo, No. 337, p. 224.
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Sheikh al-Zuhili Œ Islam and international law 278or campaigns), of which 27 were campaigns against Arabs at the time of the Prophet, Muslims were victims of aggression. The same applies to wars against other adversaries such as the Crusaders, Tartars or Mongols. Unfortunately wars of aggression are not confined to those examples, but are frequent in the history of nations in both ancient and modern times. Nonetheless, the conduct of war must be subject to legal rules. In the following section light will therefore be shed on some relevant Islamic principles. International relations in the event of war War obviously has an impact on relations between the belligerents. Each party or group perceives the other as the adversary, is keen to defeat him and to achieve victory and supremacy. The desire to win and defeat the enemy might induce the parties to commit even the gravest offences and crimes. It was therefore necessary to impose restrictions on warfare to regulate both the start and the conduct of hostilities. There are also rules relating to the end of hostilities. Four main points are emphasized below. The purpose of the classical jurisprudential division of the world into two or three abodes It is common among Muslim legal scholars to divide the world into two abodes: the abode of Islam (dar al-islam) and that of war (dar al-harb) ; some scholars add a third one, the abode of covenant (dar al-`ahd or dar as-sulh) e abode of Islam consists of countries where the power lies with Muslims, where the rules of Islam are imple- mented and Islamic rituals are performed. People of that abode are Muslims and people of the covenant (non-Muslims who live in Islamic territory according to a convenan e abode of war comprises countries which are outside the scope of Islamic sovereignty and where the religious and political rules of Islam are conse- quently not implemented; its people are belligeren e abode of covenant consists of those regions that have concluded peaceful trade pacts, a conciliation agreement or a long-term truce with Muslims. In addition, Islamic history gives examples of neutrals such as the Abyssinians, the Nubians and the Cypriots. In fact, this division has no textual support, for no provision is made for it either in the Qur’an or in the Hadith. It is instead a transient description of what happens when war flares up between Muslims and others. It is a narra- tion of facts, similar to those confirmed by scholars of international law, namely that war splits the international community into two parties: belligerents, in particular the States involved in war; and non-belligerents and neutrals, which comprise the remaining members of the international community. In reality, in Islamic jurisprudence, as asserted by Imam Al-Sha `i (767-820), and in contemporary international law, the world is one abode. 31 If there is no 31 Ad-Dabboussi, Ta’sis an-nazar , al-matba`a al-adabiyya, Cairo (nd) , p. 58.
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Volume 87 Number 858 June 2005 279security and war prevails instead of peace, there will be two zones: one peaceful and the other belligerent. The opinion advocated by some Orientalists and other writers, who claim that the abode of war is waged in permanent antagonism against the abode of Islam, is not acceptable. We consider that the antagonism is temporary and limited to the actual areas of combat or armed conflict. War as a necessity in Islamic Shari’a In international law, war is an armed co ict between two or more States; relations between the belligerents and between belligerents and neutrals are determined by international law. ere are numerous, renewed and complex causes of war. 32In the Arabic language, war, jihad and conquest can have the same mean- ing, namely to ght against the enemy. However, the term “ jihad ” has become widespread in Islamic jurisprudence. Al Raghib al-Asfahani said in his Mufradat al-Qur’an that “ jihad and mujahada , or militant struggle, mean exerting the utmost ort in fending o the enemy”. One of the classical Sunni jurists of the Maliki school, Ibn ‘Arafa, also ned jihad as “warfare waged by a Muslim against a dis- believer, with whom he has no oath, to raise the word of God Almighty, or against his presence in or penetration into the [Muslim] territory.” 33 Jihad is lawful in Islam as a necessity to suppress aggression. It was pre- scribed in the second year of the Hegira, 34 after Muslims had patiently borne for fourteen years the harm done to them by the pagans. The proof can be found in God Almighty’s words: “To those against whom war is made, permission is given (to fight), because they are wronged, and verily, God is Most Powerful for their aid. (They are) those who have been expelled from their homes in defiance of right, (for no cause) except that they say, ‘Our Lord is God’.” 35 The divine words, “they were wronged”, and “those who have been expelled from their homes” illustrate the reason for the legality of war, namely that Muslims are oppressed by others (the unbelievers). Whereas God had forbidden warfare in more than seventy verses, 36 this was the first verse that prescribed it, as confirmed by another verse: “Fighting is prescribed for you, and ye dislike it. But it is possible that ye dislike a thing which is good for you, and that ye love a thing which is bad for you. But God knoweth. And ye know not.” 37Nevertheless, religion was not the motive for warfare in jihad , nor was its purpose to subordinate others and compel them to convert to Islam. Jihad 32 See H. Sultan, op. cit. (note 9), p. 245. 33 Ibn Rushd, al-muqaddimat al-mumahhidat , as-sa ’ada Press, Cairo, 1905, Vol. I, p.258; al-Khirashi (the First Sheikh of al-Azhar), fath al-Jalil ’ala mukhtasar al-’Allama Khalil , Boulaq Press, Cairo, 1880, Vol. III, p. 107. 34 e Hegira ( Hijra ) is the emigration of the Prophet from Mecca to Medina in AD 622 (= year 1 of the Hegira, th rst year of the Muslim Era). 35 Qur’an, 22/39-40. 36 Related also by Abdul Razzaq and Ibn al-Mundhir from az-Zuhry in al-Alussi’s tafsir, Idarat at-tiba ‘a al- amiriyya, Cairo, 1853, vol. XVII, p. 162. 37 Qur’an, 2/216.
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