Is a signal understood by non-Muslims as granting amnesty legally binding if the Muslim intended it as amnesty?
General Chapter
Al-Mughni
Book of Jihad
Primary text
If a Muslim signals to non-Muslim combatants in a manner they interpret as granting amnesty (*aman*), and the Muslim declares, "I intended amnesty by it," the signal constitutes a valid grant of amnesty. Furthermore, even if the Muslim declares, "I did not intend amnesty by it," the statement of the Muslim granting the amnesty prevails because he knows his own intention best. If non-Muslim combatants exit their fortification based on such a signal, they are not to be killed; rather, they must be returned to their place of safety (*ma'man*). Umar ibn al-Khattab, may Allah be pleased with him, stated that if anyone pointed with his finger toward the sky to a polytheist, who then descended based on that perceived amnesty, and the Muslim killed him, the Muslim would be subject to retribution (*qisas*). This ruling applies even if the Muslim who gave the signal dies or is absent; in such cases, the non-Muslims must still be returned to their place of safety. This view is held by Malik, Al-Shafi'i, and Ibn al-Mundhir.
Supporting text
The validity of granting amnesty through mere physical indication (gesture) despite the ability to speak is justified by prioritizing the preservation of life (*haqn ad-dam*), similar to how the blood of one with a dubious claim to being a person of the book is preserved. Additionally, there is a necessity for communication through gestures because non-Muslims generally do not understand Muslim speech, and Muslims do not understand their speech, unlike transactions such as sales, divorce, or manumission where explicit speech is required.