Taboo of peace with Israel

Arab-Israeli peace issue is still at the top of the political agenda, and that is why the United States puts growing political pressure in mediating between the Arabs and Israel to impose peace on the Arabs and Muslims, While the circle of choice of Muslims for protect national interests and the interests of the nation in the context of its values and Islamic Sharia teachings gets narrow and narrower.
The most important evidence for this phenomenon is the US government crackdowns against the Islamic Republic of Iran which refuses to accept peace due to religious reasons. In other words, the Iranian government does not accept the legitimacy of the peace process with Israel.
In order to understand the Islamic jurisprudential views on peace and normalization of relations between Muslims and Jews- citizens of Israel and preparation to discuss about it, inevitably we have to explain Palestinian land ownership through Islamic laws and rules as because any judgment, whether positive or negative, depends on the understanding nature of links between Muslims and Palestine; in other words, this land is the subject of a legal judgment, a verdict that its understanding depends on understanding nature and the truth of the matter.
In this case, two discoveries of the historical view are certain and no one disagrees with them:
the first view: The fact that the land of Palestine was under Roman domination before the Islamic conquests, and second: the fact that conquer of the land has taken place due to the expeditions and wars by the Muslims, which is called in Islamic jurisprudence as "Maftuhat Anvah" and is defined as:
"The lands conquered by campaign of Muslims by the help of military force and is opened after the war between them and the inhabitants of the land."
Of the facts of history which so uncontroversial- as noted- is that the land of Palestine was opened by the Islam army under the command of Amr ibn al-Aas at the time of the second Caliph of Islam, Umar ibn Khattab and after the war that occurred between Muslims and Byzantine armies.
about legal judgment of the land we can discuss from two dimensions, one of which is based on ownership of it and other taxes of it (distribute), it should be noted that Muslim jurists have divided lands into two kinds in this regard (property and tax): one according to which the tax of it, and the other regarding the type of ownership of the land.
1. Lands conquered without war and bloodshed through peaceful ways (Maftuhah Solha).
2. Territories that are conquered by force and war (Maftuhah Anvah).
Since the aim of this paper is to identify the type of ownership of the land of Palestine from a religious point of view, first we spend time on discussion through this view and then we will discuss reliable and valid legal sources and approaches in this area.
Islam returns lands, which are conquered peacefully, to its owners, and their ownership of the land such as buying and selling, renting, donating, giving gift are recognized and approved by Islam.
There are two views in the case of lands conquered by war and violence and force:
1) Sunni view
Sunni theory of the lands conquered by Muslims in wars is in the summary that the imam (Muslim leader) can do one of these two actions.
1. Divide the lands between those who will have a part of the booty;
2. Dedicate them to all Muslims.
If Imam did not divide the lands, he is supposed to do the latter option. Of course, there are differences of opinion among Sunni jurists in this issue that in the future we will refer to them.
2) View of Shia Imamieh
This view which Shia jurisprudents all agree about it is that "territorial division between winners of trophy is not permitted and it is necessary to be donated in the interests of Muslims be".
Ayatollah Montazeri says in book Darasat fi Velayat al-Feghhie va Feghh al-Dulat al-Islamie 2:
About the territories conquered by war and conquest, which is considered as a part of the trophies of war, there is no doubt between Shiite scholars that the lands should be devoted in the interests of Muslims and it should not be divided between the fighters and soldiers. It should be noted that this fatwa perfectly matches with fatwas of Shiite jurists and narrated traditions.
Shiite jurisprudence documentary in this fatwa is traditions quoted by Imams and family of the Prophet (Peace be upon him) that several examples could be cited in the following:
1- Klein Sheikh quotes from his father from Hamad bin Isa of some of the companions of Imam Kazim (AS) that:
... Territories which are conquered whether by cavalries or infantries are donated to those who want to rebuild and restore them. Then the governor of the Muslims determines an amount of tax for this land according to their ability, whether in half, or 31, or 32 of its income, so that it is for their benefit, not result in their lost.
2- Shaykh Tusi Dynasty quotes a Hadith in this regard and says the narrators of it go back to Husayn ibn Sa'id who says from Safwan ibn Yahya and he says from ibn Moskan and he quotes it from Mohammad Halabi: I asked Imam Sadegh (AS) what is jurisprudential rule of the barren lands?
Imam Sadiq (AS) said:
The lands are for Muslims, whether they are living there now or those who will convert to Islam in the future, as well as those that are created after this.
3 and also Sheikh Tusi mentions from Hasan ibn Mahbub and he quotes from Khalid ibn Jarir and he quotes from Abu Rabi Shami and he quotes from Imam Sadegh (AS):
Purchase and sale of wasteland is not permitted for any person, except those who have a liability (debt) because the lands are considered as of the treasury of Muslims.
4- in another Hadith Shaykh Tusi quotes from Hassan bin Mohammed bin Samah from Abdullah bin Jabala and he quotes from Ali bin Harith Bakar bin Abibakr and he quotes from Mohammed bin Sharih: I asked Imam Sadiq (Peace be upon him) about buying a piece of land on which has taxes, he did not like his (considered an abomination) and said: "the lands are for Muslims".
They asked him: If a person buys a land and pays its taxes, how will it be? He replied:
"It is permissible except that he will be ashamed and embarrassed from wrongness of this issue."
Now, we will get back on following jurisprudential differences of Sunni people on this issue, and I will limit myself to two sources that include:
Al-mosoah Al-feqhhiah published in Kuwait and Almaghny by "Ghedamat al-Moghadasi", because the issue has been widely discussed in these two sources.
The views and opinions are presented in Al-mosoah Al-feqhhiah:
Imam Malik, also narrated by Imam Hanbal, one such fatwa is issued:
conquered lands are not divided, but are dedicated to Muslims and taxes will be spent for the public good, such as cost of soldiers, building bridges, mosques and welfare works, of course if the imam does not consider a good in dividing it. Otherwise, he can divide it among fighters (soldiers).
He added:
Religious reason of our fatwa is that Prophet's companions agreed in such a way, so that Umar refused the request of Bilal and Salman about wastelands distribution.
2- Imam Abu Hanifa and Suri as well as the idea is mentioned in other narration from Imam Ahmad ibn Hanbal believed that:
Imam (Muslims' leader) can do two things about these lands: he can divide them between Muslim fighters or leave the land to the authorities, and receive tax.
He adds:
The reason for this fatwa is prophet's (Peace be upon him) way in such cases, as in life history and tradition is proved that he has done these two things. When he overcame Mecca by war and campaign, in spite of existence of immovable property and spoils, he did not divide them. He also conquered the Banu Qurayza, Banu Nadir and other with campaign and war, but he did not divide the land, while he divided half of the Khyber lands divided between Muslims and devoted the other half to good works and their requirements.
As Sahl ibn Abi Hasmeh said a hadith: The Messenger of Allah (Peace be upon him) divided Khyber into half: he had a half for his costs and divided the other half into eighteen share expenses and gave to Muslims. Abu Dawood narrated this tradition and has not done an argument about it.
Imam Shafi'I issues a Fatwa about the issue, of course this tradition has been quoted by Imam Ahmad ibn Hanbal too: the land is also divided between the fighters as well as movable property, unless they do not want their share in exchange of other thing (sell their share ), as Jarir Bajly did so. He took his share of trophy lands and sold them in exchange of some money. The reason for this Fatwa is God's statement in the Qur'an (Al-Anfal, Verse 41):
"And know that anything you obtain of war booty - then indeed, for Allah is one fifth of it".
God's command is widespread and includes movable and immovable property (land).
If the land was not divided and was left in the hands of its inhabitants, Muslims can take their tax benefit. There are two conclusions in terms of the type of capture of the land that Moseat Al-faqhih quoted as follows:
1) Fatwa of most of the Companions and scholars:
Booty lands are part of the endowment, so buying and selling and gifting them to others is not permitted. And it cannot be inherited from unbelievers who have seized it.
The reason for this fatwa is a hadith narrated by Auzayi:
When Umar and the companions of the Prophet were dominant over Levant, they gave towns and villages' lands to the residents of them and entrusted their owners officially and approved them. Of course they were supposed to revive the lands and pay taxes to Muslims.
They (Umar and the Companions) believed that Muslims are not allowed to trade land that is in their hands, willingly or unwillingly.
2) The views of Imam Abu Hanifa and his companions (Abu Yusuf and Sheibani):
Maftuhat Anvah lands are for real owners and inhabitants of them and they are allowed to do any operation on them, such as trade and gift giving. And their close relatives are allowed to inherit the lands.
The reason for this Fatwa is a story from Abdul Rahman bin Zayd: Ibn Mas'ud bought a land from a peasant under the condition not to pay taxes anymore; And in the book "Mu'jam Al-maghny fi Al-feqhe Al-hanbaly" 5 it says about rule about the territories that were taken by force and violence.
In this book there are three types of narratives:
1. Imam (Muslims' leader) can do one of the two things:
He can divide them among winners of war booty or devote them to Muslims.
2. The lands will be endowment due to domination of Muslims over them, and all companions agree on this fatwa.
3. It is obligatory to divide the lands between the winners of booty.
Endowment means that the lands are devoted the Muslims, but they remain in the hands of prior owners and residents to use them, but they will pay tax which is spent for the public interests of the Muslims. No piece of land will have personal ownership. Discussed votes and Fatwas were in the range of theory and opinion; it means that we can conclude from differences that if the Army of Islam seizes a part of non-Islamic lands, the leader of Muslims can act appropriately as priest in the light of these rulings and fatwas.