Treaty Obligations in Shariah: Kashmir Jihad and Simla Agreement

By Mufti Taqi Usmani

Q.) My question is regarding the validity or otherwise of the "Jihad-e-Kashmir." I present my proposition as follows:

1. According to "Surah Anfal", verse 72, as far as those Muslims are concerned who do not migrate to "Darul-Islam" from Darul-Kufr", the Muslims living in "Darul-Islam" are not supposed to take care of them i.e. there is no relationship of "Walyaat" between the two of them.

2. If such Muslims who are living in "Darul-Kufr" ask for help in matters of "deen", then we are duty bound to help them.

3. However, such help cannot be given against a country with which we have a "treaty" or "mithaq."

4. The word "mithaq" is of wide import meaning anything in the normal course of affairs, on the basis of which one country has reasonable belief that it is at peace with the other one, has normal relations with it etc. For example, while we have no specific treaty with China, which says that both countries would not attack each other, we do have a "mithaq" with China.

5. According to Simla Agreement, Pakistan and India agreed to cease hostilities. That means we are, now, not at war with India. Both countries further agreed to settle Kashmir dispute through mutual consultations.

6. The Muslims living in Kashmir come directly under the category mentioned in verse 72, Surah Anfal, as they have not migrated to Pakistan, which is for all legal purposes a "Darul-Islam". This, then means that we can not help them in their struggle as we have a treaty with India which has ceased hostilities i.e. we are at present not at war with India. And it is a known fact that we are helping them militarily and otherwise also. Many Jihad groups are based in Azad Kashmir.

7. Furthermore, the Holy Qur'an also lays down the principle that if a treaty has to be invalidated or repudiated by Muslims due to dishonesty or violation by the other party, it should be done openly and not by secret or covert methods. This means we cannot violate the provisions of Simla Agreement or the fact that we have ceased hostilities with India, unless we openly repudiate the agreement, subject to the conditions mentioned in the Holy Quran.

8. If we want to liberate Kashmir or help Kashmiris, than we shall have to first openly repudiate the Simla Agreement or any other relevant treaty, and only then, we can help them or even attack India

Sir, under these circumstances do you agree that the present "Jihad-e-Kashmir" is un-Islamic. If it is so, what sort of attitude should an ordinary Muslim adopt? (Muhammad Subhan Butt, Lahore Cantt.)

A.) You have asked me about the present position of Jihad in Kashmir with reference to verse 72 of Surah Anfal. In fact, this verse has been revealed in the context of the circumstances prevailing at that time. In the earlier days after the migration of the Holy Prophet, Sall-Allahu alayhi wa sallam, to Madinah, all the Muslims were ordered to migrate from Makkah because they were not allowed to observe their religious obligations therein. Therefore, it was one of the major obligations of every Muslim of that time that he migrate to Madina, so-much-so that it was held to be a sign of Iman. Later on after Makkah was conquered by the Holy Prophet, Sall-Allahu alayhi wa sallam, the obligatory nature of migration was abrogated and it was announced by the Holy Prophet, Sall-Allahu alayhi wa sallam, in the famous Hadith reported by all the authentic resources: "No migration after the conquest of Makkah."

It means that migration to Madinah from the Darul-Islam was no longer an obligation on every Muslim. Rather the rule prescribed for future was that if a Muslim cannot observe his religious obligations in Darul-Kufr, he is duty bound to migrate from there to a place where he can perform his religious duties. But if the government of a Darul-Kufr allows him to observe his religious duties, then it is not incumbent upon him to migrate to Darul-Islam. However, in this case migration to Darul-Islam is advisable or Mustahab.

On the other hand, the Muslims living in Darul-Kufr have all the right to struggle for their freedom especially when a non-Muslim country has imposed its rule upon them without any valid justification, as is the case in Kashmir. It was agreed upon at the time of partition of Pakistan and India that the people of Kashmir will be given a choice through a plebiscite to determine their political future. Not only did India violate this agreement, but its government also occupied the territory by force. The people of Kashmir have never entered into an agreement with the government of India to remain under their rule for ever. Therefore, if they are struggling for their freedom, no objection can be raised against them from the Shariah point of view. As far as Pakistan is concerned, its stand is that it has not provided any military support to the freedom fighters; rather it is providing them with moral support only.

However, if Pakistan elects at some time to provide them with military support, it can be justified from the Shariah point of view. First, because so far as I know, the two countries have not entered into a no-war pact. Second, because if there was an implied or tacit agreement, the same has been violated by India at a number of occasions. If there is a no-war pact with a country, the Shariah prohibits a Muslim country to attack it unless the pact is violated by the opponent country or is canceled in express terms by the Muslim country. In both these cases, the Muslim country is free to choose whatever it deems fit.