We have a graveyard for the Jews, does it have sacredness, or is it allowed to build on top of the graves of the Jews, or to take their graves as paths for the people.
How are the dealings with the graveyards of the Kuffaar?
As for from the angle of building on top of them, then verily a person will be praying on top of a graveyard, it being him building a Masjid or other than a Masjid,
اجْعَلُوا فِي بُيُوتِكُمْ مِنْ صَلَاتِكُمْ وَلَا تَتَّخِذُوهَا قُبُورًا
“Perform some of your prayers in your houses, and do not take them as graves.”
For verily the Prophet ﷺ prohibited from taking the houses as graveyards. So it’s not allowed to build on top of it, due to this Hadith, and the Prophet ﷺ prohibited to built upon it, whether the intent was to fortify it or building with the intent of living, the Hadith is general.
So building on top of it is impermissible, whether it be the graveyards of the Muslims or the Kuffaar.
And as for digging it up and benefiting from the land that they are in after digging them up. Building a Masjid or building what they are in need of, then this is a good affair, and we have a beautiful example in the Messenger of Allaah ﷺ, for indeed he said:
يَا بَنِي النَّجَّارِ ثَامِنُونِي بِحَائِطِكُمْ هَذَا قَالُوا لاَ. وَاللَّهِ لاَ نَطْلُبُ ثَمَنَهُ إِلاَّ إِلَى اللَّهِ
“O Bani An-Najjaar! Suggest to me a price for this garden of yours.” They said, “By Allaah! We demand its price from none but Allaah.”
So they didn’t take a price from him and they gave it for the sake of Allaah, so it became his and the Prophet ﷺ made that garden which had in it ruins and damaged things and damaged homes, and in it was date palm trees and graves of the Mushriks. So he ordered to cut the trees, and to level the ruins, and the graves to be dug up, and a Masjid was built in that place.
The place where the Masjid of the Prophet ﷺ was built used to be the place of the graves to the Kuffaar, he removed them and built a Masjid, it used to be the place of graves for the Mushriks, it included somewhat of ruins and trees and graves, in the midst of that forest which was an expression of ruined houses and the likes of that.
There remains what is related to taking it as a pathway. The graveyards of the Kuffaar to be taken as pathways and trampled upon and the likes of that, they don’t have sacredness, but it may call to a person relieving oneself in the midst of it and the likes of that, and indeed the Messenger of Allaah ﷺ prohibited from relieving oneself in the midst of graves,
لأن أقضي حاجتي في السوق أهون من أن أقضي في مقبرة
“That I relieve myself in the market place is lesser than relieving myself in a graveyard.”
Or he said something similar to this. So digging it up and transferring it to another place and removing those bones to benefit from that place is a more safer solution than exposes oneself to mistake.
From the benefits of the battle of Tabuk, Imaam Ibnul-Qayyim mentioned concerning it numerous benefits, it’s not allowed to make the Masjid endowment, its not acceptable as a good deed or seeking closeness to Allaah.
So the Masjid is to be destroyed if built upon a grave, just as the dead is dug up if buried under a Masjid as that is stated by Imaam Ahmed.
This is not specific to the graves of the Jews only, rather the graves of all Kuffaar, it doesn’t have sacredness, if they need to dig it up they dig it up and benefit from the earth.
Verily the graves of the Muslims are not allowed to be transgressed upon, for it is their homes.
Answered by: Shaykh, the Allamah, the Trustworthy Advisor, Abu Abdirrahman Yahya bin Ali Al-Hajuri – may Allah preserve him
Translated by: Abū ‘Abdillāh ‘Omar bin Yahya Al-‘Akawi