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July 3, 2022 Inquiry & Analysis Series No. 1641

In Unusual Article, Saudi Academic Calls To Provide Islamic Religious Sanction For Normalization: Israel Is Part Of The International Community; It Is The Ruler's Prerogative To Decide On Making Peace With It

July 3, 2022 | By Y. Yehoshua*
Saudi Arabia | Inquiry & Analysis Series No. 1641

Ahead of U.S. President Biden's Middle East visit, scheduled for mid-July 2022, there has been renewed speculation in the media regarding possible  normalization between Saudi Arabia and Israel. Secret contacts between the countries have been ongoing for a while, but Saudi Arabia has so far refrained from joining some of its allies in signing a peace agreement with Israel. It has linked normalization to a resolution to the Palestinian problem based on the 2002 Arab peace initiative.

However, it appears that Saudi Crown Prince Muhammad bin Salman is pushing to change the conservative policy of his father, King Salman bin 'Abd Al-'Aziz, towards Israel. Bin Salman regards Israel not an enemy but as a potential ally, and believes that forming ties it can serve the kingdom's economic, political and security interests.[1] Such ties can be helpful, for example, in accelerating the ambitious development and growth program bin Salman is promoting as part of Vision 2030. They can also be helpful in confronting the Iranian threat and even in improving the strained relations between Saudi Arabia and the U.S., which reached a nadir following the murder of Saudi journalist Jamal Khashoggi in 2019.

In addition, the informal contacts that have taken place between the countries in recent years, and the signing of the Abraham Accords between Israel and several Arab countries, chief of them the UAE, have somewhat eroded Israel's demonic image in the eyes of the Saudi people, especially among the younger generation. Intellectuals, journalists and social media activists in the kingdom have begun to openly express a tolerant and even positive attitude towards Israel, seeing peace with it as inevitable in the circumstances and as vital to halting the Iranian threat. Many also direct harsh criticism at the Palestinians, who, they say, are not adopting a realistic policy conducive to resolving the conflict with Israel and restoring stability to the region. Many examples of this have been presented by MEMRI in the recent years (see the Appendix to this document).  

Yet, despite the growing political legitimacy of diplomatic ties with Israel in the recent period, Saudi Arabia – which is essentially a religious state and regards itself as the leader of the Islamic world  -- will find it difficult to form official relations with Israel without first establishing the legitimacy of this move from the perspective of the shari'a (Islamic law). Moreover, the Abraham Accords, signed with the kingdom's acquiescence, have in fact already sparked a discussion about the religious legitimacy of normalization. As part of this debate, clerics opposed to the accords stated that normalization with Israel is an act of treason against Allah and against the Prophet Muhammad who fought the Jews. [2]

It should be mentioned that religious rulings sanctioning ties with Israel were already issued in the 1990s by Sheikh 'Abd Al-'Aziz ibn Baz, who served as Saudi mufti from 1993 until his death in 1999. Issued against the backdrop of the Oslo Accords between Israel and the Palestinians, the rulings stated that a country may sign a peace agreement with the Jews, i.e., with Israel, if such an agreement is deemed to be in the interest (maslaha) of its Muslim citizens. As evidence for his position Ibn Baz cited the Treaty of Hudaybiyya, signed by the Prophet Muhammad with the Meccan Quraysh tribe in 628.[3] However, senior members of the kingdom's current religious establishment have so far refrained from addressing the issue.  

Should Saudi Arabia decide to raise the level of diplomatic representation with Israel, it will need the religious establishment to back this move and provide jurisprudential sanction for it. Such backing is likely to be welcomed by the kingdom's de facto ruler, Crown Prince Muhammad bin Salman,  who has made far-reaching statements on religious reform as a means of advancing the kingdom and meeting the challenges of the modern age. In an interview he gave in 2021 to several Saudi television channels, marking five years after the launching of Vision 2030, he stated that it is always possible to employ independent judgement (ijtihad) and interpret the shari'a according to the spirit of the time and the place.[4]

An unusual and recent article on the religious legitimacy of diplomatic relations with Israel, which may promote the rapprochement between Saudi Arabia and this country, appeared in the Saudi state daily Al-Jazirah on June 20, 2022. The article, titled "The Fiqh [Jurisprudence] regarding al-siyasa al-shar'iyya Shari'a-Based Policy and the State of Israel," is by Dr. Khalid bin Muhammad Al-Yousuf, a senior lecturer on international law at the Imam Muhammad bin Saud Islamic University in Riyadh and the secretary-general of the university's Supreme Council. He argues that, in the modern era, there has been a significant change in the perception of the state and in the rules of the game in international relations. According to the new rules, he says, Israel is an existing reality just like any other world country, and a member of the UN. Therefore, it must be treated according to the accepted norms of the international community. Al-Yousuf calls on Saudi clerics to reexamine the sphere of international relations and formulate a new religious perception of it, compatible with these new norms, which will enable the ruler of an Islamic state to employ independent judgement and form ties with Israel if he deems this to be in the interest of his country.  He emphasizes that normalization with Israel will allow many Muslims to come and pray in Jerusalem and "rebuild it," which cannot be done without maintaining ties with Israel.

In arguing for his position, Al-Yousef evokes the jurisprudential principle of al-siyasa al-shar'iyya (shari'a-based policy). This principle, which reconciles politics (siyasa) and Islamic law (shari'a), is an important religious tool that allows the Saudi kingdom to maintain its conservative character but at the same time meet the challenges of the modern age and adapt its policies to changing circumstances. The principle essentially enables the Islamic ruler to employ his own judgement in governing the state and promoting its interests, as long as his moves are not flagrantly at odds with the shari'a.[5]   

The article is apparently aimed at providing jurisprudential sanction to a political move of maintaining diplomatic relations with Israel while preserving Saudi Arabia's religious and theocratic credibility and even bolstering the religious legitimacy of its regime.

This report reviews the arguments presented by Al-Yousuf in his article.

Israel Is A Sovereign State And A Member Of The UN

Al-Yousuf's article begins with a short introduction which notes that, in the existing circumstances, Israel is a sovereign state recognized by the international community. He writes:

"First of all, what is Israel today?

"In the contemporary international community, [Israel] is a sovereign state that has the character of a state according to the modern global perception. It is a member of the UN, and since it is recognized as a state, it operates in the contemporary international community vis-à-vis all the other states, just like any other country – whether in the framework of mutual legal recognition [between it and other states], or in practice, based on reality, according to the requirements of the contemporary circumstances. 

"Examples of the first [type of recognition] are, for example, official mutual visits by state leaders, the opening of embassies, direct trade, and the like. Examples of the second [kind of ties, based on the requirements of reality are the existence of] maritime zones and airspace; the use of shipping routes; indirect trade, for example by transferring goods through third parties, in free trade zones and through [individuals with] dual citizenship; meetings between official delegations at international forums, and encounters as part of various sports events. A state cannot be part of the international community without taking an active part in international forums…" 

The Contemporary Perception Of The State Is Different Than It Was In The Past; We Need New Jurisprudence That Reexamines Reality

Following this introduction, Al-Yousuf stresses that the modern perception of the state is different than the past perception: The state no longer represents only the ruler, but is a legal entity with commitments, duties and rights in which there is a clear legal affiliation between the authorities and the citizens. Moreover, he states, some of the familiar Islamic principles, such as the classical distinction between dar al-Islam ("the abode of Islam"), dar al-harb ("the abode of war") and dar al-'ahd ("the abode of covenant"),[6]  are not relevant to international relations in the modern world. In  light of these changes, he calls to examine reality from a broad perspective and draw up a new jurisprudence for foreign relations while still conforming to the principles of Islam and preserving the essence of Islam.

"Today, the state is an international legal entity that has an independent abstract identity and independent economic responsibility. This legal entity is the one that bears responsibilities, fulfills duties and obtains rights. The perception of statehood has developed considerably compared to what it was in the past. Previously, the state represented the rulers, and there was no legal association between the ruler and individual [subjects]. For example, the 'Umayyad state' represented the Umayyad [rulers], the 'Abbasid state' represented the 'Abbasid [rulers], and the 'Ottoman state' represented the Ottomans. Those who lived within the boundaries of these states were subjects. Books of Islamic tradition never described any subject of these states as an Umayyad, Abbasid or Ottoman.

"[In the past,] the state meant imposing a particular rule on certain territories and regions, without granting the any legal status to the individuals living in that territory or to each of the states belonging to the same Muslim region…

"The modern development of the concept of statehood compels us to reexamine many issues in the sphere of contemporary international relations from the perspective of jurisprudence. Among [these issues] are those of reconciliation with the enemy, neighborly relations with non-Muslims, protected peoples, individuals entitled to [temporary] protection as part of a covenant, jizya, and [matters of] peace and war. These issues and others cannot be examined only through the prism of the accepted jurisprudential distinction in Islam between dar al-harb, dar al-Islam and dar al-'ahd. We must examine these issues and [formulate] a new jurisprudence that addresses reality without deviating from the objectives and principles of the Islamic laws and while preserving the essence of Islam and the five necessities of Islam…[7] 

"The modern state is now perceived as a legal entity comprising several branches [of government, namely] the legislative, executive and judiciary branches. It rules over a well-defined territory with definite boundaries and the people affiliated with it are called citizens. They are the people who legally hold its citizenship, and this is what distinguishes them from the citizens of other states. This is a significant development in the concept of the state, which was not previously known as it is today.

"Whoever examines the books of jurisprudence and the books dealing with al-siyasa al-shar'iyya [i.e., shari'a-based policy] finds that these issues are addressed in the chapters dealing with interpersonal relations (mu'amalat), and that the guiding principle is that of permission. Therefore, all the rules regarding the governance mechanisms of the Islamic state – such as the mechanisms [regulating] the pledging of allegiance to the ruler, shura [consultation], the appointment and removal of rulers, etc. –are not strict shari'a laws... This is in contrast to the chapters dealing with the relationship between man and God ('ibadat), with Islamic punishments, with retaliation for grave transgressions and with inheritance. The shari'a laws pertaining to these issues are strict, specific and detailed, and the guiding principle regarding them is that of prohibition.

"In light of this, the clerics in general and the [religious] research centers [in particular] must reexamine the jurisprudence pertaining to the modern perception of the state and to this entire field. [They must rethink] the relevant [religious] laws from a broad and comprehensive jurisprudential perspective. For it is unreasonable to argue, for example, that relations between an Islamic country and a non-Islamic one today are completely forbidden according to the shari'a, without considering that, within an  Islamic society, contract between a Muslim and a non-Muslim is allowed, and without considering the interest and the [potential] losses [of the Muslims] in the international arena."    

The Early Islamic Precedent: The Return of Abu Jandal To The Infidels' Stronghold In Mecca

As a precedent for his position, Al-Yousuf mentions the case of Abu Jandal bin Suhail bin 'Omar. Abu Jandal was a companion of the Prophet who converted to Islam but who was returned by the Muslims to the infidels of Mecca as part of the Treaty of Hudaybiyya, signed by the Prophet with the Meccan tribe of Quraysh in 628. As part of the treaty, Muhammad agreed, inter alia, to send back any member of the Quraysh tribe who came to Al-Madina seeking to join the Muslims. Conversely, the Quraysh were not required to send back Muslims who had left the fold of Islam and returned to Mecca. Abu Jandal was one of the first members of the Quraysh tribe to embrace Islam. But before he could leave Mecca and join the Muslims, his father, Suhail bin 'Omar, who was a Qurayshi leader, imprisoned and tortured him for his decision to convert. When Abu Jandal heard that Muhammad was in Hudaybiyya, close to the city, he escaped. He arrived at the Muslim camp, still wearing his shackles, just after the signing of the Treaty of Hudaybiyya. His father, who was himself in Hudaybiyya as the Qurayshi representative in charge of drafting and signing the agreement, demanded that Abu Jandal be the first Qurayshi to be returned to Mecca, and Muhammad agreed to this, to the Muslims' disappointment.  

Al-Yousuf states that this decision by the Prophet to send a Muslim back to an infidel city – which carried the risk of sparking internal strife among the believers – was a demonstration of leadership and a case of making a difficult choice in order to secure a more important interest. He writes:

"There is religious evidence in the books of siyar [i.e., the literature dealing with the conduct of the Islamic state vis-a-vis other communities] and in the Hadith about the Treaty of Hudaybiyya that the Muslims of Al-Madina and their allies signed with the Meccan tribe of Quraysh and its allies. One of the terms of this treaty was that the Muslims of Al-Madina would not harbor people who migrated from Mecca to Al-Madina, but [the Qurayshis] were not [required to do the same]. Accordingly, the Messenger [i.e., Muhammad] sent his honorable companion Abu Jandal bin Suhail bin 'Omar, who had fled from the Meccan polytheists and come to Al-Medina, back [to Mecca] immediately after the signing of the treaty. [Abu Jandal] returned to Mecca with the representative of the Quraysh tribe [who had come to Hudaybiyya] to draft the treaty and sign it [i.e., his father Suhail bin 'Omar]. When Abu Jandal [expressed] fear that [the Meccan polytheists] would make him stray from his religion, Allah's Messenger told him: 'Abu Jandal, be patient and you will be rewarded [by Allah], for He has devised a salvation and a refuge for you and for those who are oppressed with you. We have made an agreement with these people [the Qurayshis] and we have a covenant with them. We will not violate [our covenant].  

"Focusing on just one part of [the story about] the Treaty of Hudaybiyya, we see that the Muslims' action [of taking] a person who had become one of them and sending him back to the infidels, despite his fear that he would be made to stray from his religion – [when preserving the religion is] the greatest [of the five] objectives of Islam – is a grave action that can cause division, internal strife and discord among the Muslims. But since the [Islamic] nation had a leader – [namely Muhammad], Allah's prayers and peace be upon him – and since there were interests and principles that were more important, a Prophetic instruction was given to fulfill the terms [of the treaty] and surrender the honorable companion to the infidels of Mecca."

The Ruler May Adapt His Policy To Public Interest In Order To Defend Islam

Al-Yousuf argues that the conduct of the Prophet Muhammad – who acted not just as a prophet but also as a leader with legislative and executive powers – is decisive proof that, modern rulers can also employ [the principles of] al-siyasa al-shar'iyya so as to promote the collective interest and defend Islam and the Muslims. He stresses that this practice follows the example set by the Prophet in the Treaty of Hudaybiyya, thus underscoring the religious legitimacy of the state authorities and their decisions: "There is no doubt that, in his handling of the Treaty of Hudaybiyya, [Muhammad], Allah's prayers and peace be upon him, exercised [not only his religious authority but] also his legislative and executive authority, for he was both  the Messenger [of Allah] and the leader of the [Muslim] nation. This is decisive proof that the leader of the Muslims and the commander of the nation governs his state and his subjects according to al-siyasa al-shar'iyya and [the principles of] international relations, in the way he believes will serve [their] clear interests. In this manner he safeguards the religion and defends the Muslim collective. Peace reigns, commerce thrives and mosques are built. In this manner he follows the example of Allah's Messenger, who signed the 10-year Treaty of Hudaybiyya with the infidel Qurayshis, until [the treaty] was violated by allies of the Quraysh. This treaty provided security, peace and stability for all sides. Each was allowed to enter the territory of the other, act there directly, and safeguard the collective interest, especially the interests of commerce, so as to secure the trade caravans in summer and winter in a general atmosphere of security, peace and stability. Furthermore, the Islamic state in Al-Madina could concentrate on uniting its ranks, arranging its internal affairs and strengthening its forces in general."    

Today International Relations Are Conducted In The Framework Of The UN; 'Dar Al-Harb' Is An Irrelevant Concept

Al-Yousuf goes on to say that the rules of the game in international relations have changed in the modern era, so that Islamic concepts like dar al-harb [territories not under Islamic rule, which must be conquered by force of arms] are no longer relevant. Today the principles underpinning international relations are the ones set out by the UN, and all states must comply with them. He therefore reiterates his call to formulate a comprehensive religious perception of the state and of international relations that safeguards the interests of the Muslims while preserving the basic principles of Islam.

"If we examine our current reality we will find that [the concept of] dar al-harb in its Islamic and jurisprudential sense is no longer implemented today. The fact that it is not implemented does not mean that the shari'a laws pertaining to it are abolished, but only that they are not applied to modern states because this term is not used in the modern international community. Modern states interact through contracts, charters, agreements and alliances. These can be collective, like the UN Charter, which is the founding document of the UN, [an organization] that encompasses all the world countries. According to this charter, states have rights and duties towards the UN, towards the international community and towards each other… Saudi Arabia was one of the first countries to sign the UN Charter, and it is therefore a founding member [of this organization]. King Faisal signed the charter as a founding member already on June 26, 1945 in a ceremony that took place in San Francisco.

"Relations between states can hold on the regional level, through membership in regional international organizations like the Arab League or the Gulf Cooperation Council, or in international organizations dealing with specific [fields], like the World Trade Organization. A state can also maintain exclusive ties with one other state, for instance by recognizing it or holding diplomatic or consular relations with it… Such recognition [actually] requires establishing bilateral relations, a [mutual] opening of embassies, mutual visits and respect for the interests of both sides.     

"An in-depth examination of the reality in the modern international community reveals that a state, in addition to being a legal entity, may not violate modern international law… For example, it may not hijack planes, trains or ships in another country, and if it does so, it incurs international condemnation. In addition, no country may interfere in the private affairs of another, for instance in [matters of] public institutions, legislation, road construction, etc. This can be done only with the consent of the relevant country.

"In other words, in the current reality, states have become almost similar to human beings. They have a juridical personality that endows them with rights and duties. Thus, the state as a state, can make considerations. It considers [its] interests and actualizes them, identifies [possible] losses and prevents them, and, when necessary, expresses its approval as a state.

"We therefore need a broader jurisprudential shari'a-based perception of the concept of the state and its collective regional or exclusive relations in the modern era… that actualizes the clear interests of the state and its citizens as part of the international community. [And] all this in a manner that is not at odds with the absolute principles of the shari'a, and its principal objectives of ensuring people's wellbeing, preserving the [Islamic] religion and the observance of its rituals. 

Israel Is One Of The States Of The International Community; It Is The Prerogative Of Leader To Decide On The Establishment Of Relations With It

Al-Yousuf concludes his article by stating that Israel is part of the international community, and therefore the leader is entitled to employ judgement and determine whether or not to establish diplomatic relations with it: "Finally, let me say that Israel is a state within the international community, whether we like it or not, [for] UN Resolution 273 of May 11, 1949 granted its request for UN membership. This resolution was passed after the adoption of Security Council Resolution 69, of March 4, 1949 [which recommended to admit Israel as a member]. The international community thus regards Israel today as a full member. For an Islamic state, establishing ties with it is part of general political practice and of handling the affairs of the nation in a manner that benefits it. This is the prerogative of the ruler, based on what he believes serves the individual and collective interest. 

"So many Muslims wish to come and pray in Jerusalem and rebuild it. In the present circumstances, this cannot be done without holding contacts with the state of Israel, and here it is up to the Islamic  ruler to assess the interests and losses [involved], far from the path of prohibitions and the brandishing of bombastic slogans.

"Allah knows best my intentions."  

Appendix: MEMRI Reports On Saudi Media Discourse Concerning Israel

Special Dispatch No. 10027 - Saudi Analyst In Article On Al-Arabiya Website: Solution To Palestine Problem Is Naturalizing Palestinians In Jordanian Kingdom That Includes Gaza, West Bank; It's Time For The Palestinians To Accept Reality, Focus On Living Their Lives – June 21, 2022.

Special Dispatch No. 10002, Saudi Political Scientist: Refusal To Compromise, Which Characterizes Arab Political Culture, Is Detrimental To Arab Interests, And Especially To Palestinian Cause, June 7, 2022.

Special Dispatch No. 9680, Saudi Writer: War With Israel Not An Option; Palestinians Must Renew Negotiations Under Arab, Gulf Aegis, December 13, 2021.

Special Dispatch No. 9463 - Saudi Journalists Encourage Local Judoka Al-Qahtani To Show Up For Match With Israeli Opponent – July 26, 2021.

Special Dispatch No. 9269, Saudi Journalist: Arabs And Jews Should Stop Fighting, Start Cooperating, April 1, 2021.

Special Dispatch No. 9100, Senior Lebanese Columnist In Saudi Daily: The Arab Countries Cannot Be Expected To Sacrifice Their National Interests For The Palestinian Cause, December 21, 2020.

Special Dispatch No. 9052 - Saudi Journalist In Message To Iran Following Normalization Agreements With Israel: Iran, Not Israel, Is The Enemy Of The Arabs, Destabilizes The Region – November 23, 2020.

Special Dispatch No. 8965, Saudi Journalist: Peace With Israel Is A Necessity, Not A Choice; Turkey And Iran Are A Greater Threat Than Israel, October 13, 2020.

Special Dispatch No. 8942, Editor Of Saudi Daily: Normalization With Israel Is The Arabs' Only Option, September 22, 2020.

Special Dispatch No. 8924, Saudi Columnist: Palestinians Have No Right To Judge Arab Countries Wishing To Normalize Relations With Israel, September 9, 2020.

Special Dispatch No. 8898, Senior Saudi Journalist Abd Al-Rahman Al-Rashed: Every Arab Country Is Entitled To Establish Relations With Israel; Qatar, A Critic Of The UAE-Israel Agreement, Has Maintained Relations With Israel Since 1996 – Even Hosting Shimon Peres When It Served Its Political Purposes, August 17, 2020.

Special Dispatch No. 8893, Reactions To Israel-UAE Normalization Agreement: Senior Saudi Journalist Praises It, Qatari Press Vehemently Attacks It, August 14, 2020.

Special Dispatch No. 8742, Saudi Writer Abdulhameed Al-Ghobain: Saudis Care About National Interests, Not About The Palestinian Cause; Our Relations With Israel Are Warm, Have Gone Beyond Normalization, May 11, 2020.

Inquiry & Analysis Series No. 1510, Saudis, Palestinians Clash On Twitter Over Status Of Palestinian Cause, Normalization With Israel, May 5, 2020.

Special Dispatch No. 8705, Saudi Columnist: A Real Bid For Peace With Israel Requires Acknowledging The Jewish Tragedy In The Holocaust, April 20, 2020.

Special Dispatch No. 8540, Senior Saudi Journalist Following Meeting Between Leaders Of Sudan And Israel: Sudan's Action Is Understandable; Many Arab Countries Hold Ties With Israel, February 6, 2020.

Special Dispatch No. 8533, Saudi Writers To Palestinians: Accept Trump's Peace Plan, Or You'll Regret It Later, January 31, 2020.

Special Dispatch No. 8201, Saudi Twitter Users Respond To Attack On Pro-Israel Saudi Blogger At Al-Aqsa Mosque: This Is Bullying And Ingratitude; We Are Entitled To Normalize Relations With Israel; Jordan's Custodianship Of Al-Aqsa Should Be Terminated, July 29, 2019.

Special Dispatch No. 8151, Saudi Intellectual: The Palestinians Forfeited An Important Opportunity By Boycotting Bahrain Economic Workshop, July 2, 2019.

Special Dispatch No. 8052, Chief Editor Of Saudi 'Al-Jazirah' Daily: Do Not Reject The 'Deal Of The Century' In Advance; There Is Need For Concessions By Both Sides, May 13, 2019.

Special Dispatch No. 8260 - Saudi Writers Attack Hizbullah: It Initiated The Military Escalation Vis-à-vis Israel To Serve Iran, Is Devastating Lebanon – September 5, 2019.

Special Dispatch No. 8247 - Senior Saudi Journalist 'Abd Al-Rahman Al-Rashed: Israel's Attacks On Iran's Proxies In Syria, Iraq And Lebanon Play A Huge Role In The Struggle Against This Country; Relentless Pressure On Iran May Bring About Its Defeat – August 27, 2019.

* Y. Yehoshua is Vice President for Research and Director of MEMRI Israel.

 

[3] Ibn Baz's fatwa in Arabic is available here.  

[5] On the principle of al-siyasa al-shar'iyya, see: Muhammad Al-'Atawneh (2001), ""Siyasa Shar'iyya as a Mechanism of Stabilizing Government and Society in Saudi Arabia," Jama'a 8, pp. 54—83.

[6] Dar al-Islam ("the abode of Islam") is territory under Islamic rule; dar al-harb ("the abode of war") is territory not under Islamic rule, which must be conquered by force, i.e., though jihad, and dar al-'ahd ("the abode of covenant") is territory inhabited by non-Muslims communities that have made a covenant with the Muslims guaranteeing them security.

[7] The five necessities of the shari'a are safeguarding the religion, life, intellect, property and progeny.

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