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Beiträge zum Islamischen Recht XII

von Silvia Tellenbach (Band-Herausgeber) Thoralf Hanstein (Band-Herausgeber)
Sammelband 158 Seiten

Inhaltsverzeichnis


“Fossilized Sharia”: Law, Violence and the Caliphate of Raqqa

Rudolph Peters, Amsterdam

1.   Introduction

In some Muslim states the domain governed by Sharia law has recently been expanded: Countries like Pakistan and Iran have extended the application of Sharia law from family law to other fields, such as penal and fiscal law. This was done by codifying pre-modern Sharia doctrines. In drafting these new law codes the legislators had to choose from alternative doctrines and norms existing in the corpus of pre-modern Islamic jurisprudence. This selection was informed, not so much by technical legal factors, but rather by political and cultural ones. The re-introduction of Sharia penal law, for instance, had a clear symbolic ideological function of opposing Western thought. 1 Here I would like to introduce the term “fossilized Sharia” as a metaphor for a modern type of selective Sharia law defined by a state and consisting of big chunks of obsolete and anachronistic doctrines and norms excavated from the pre-modern Islamic religious and legal texts. I call such doctrines and norms “fossilized” because they were not “alive” anymore, since, for a long time, they had not been applied and, therefore, were stagnant and did not develop. Usually, the selection of the doctrines and norms are motivated not only by purely religious reasons, but also to justify state policies. Now, the Islamic State2 is one of the polities that has used “fossilized Sharia” at an extensive scale. And its most conspicuous characteristic of its enforcement is its justification of cruel and violent practices in governance, warfare and, especially, the administration of justice. The atrocities that are carried out in public and are widely disseminated through the media are part of a deliberate policy. In the following I will try to analyze the way the Islamic State is using “fossilized Sharia”. After a brief exposé of the ← 11 | 12 origins and history of the Islamic State I will expound how Sharia law is enforced by the Islamic State. Finally I will analyze the instrumentality of this violent and ruthless practice justified by “fossilized Sharia”.

2.   The emergence of IS3

The Islamic State is only one of the warring rebellious parties in Iraq and Syria. However, it has distinguishing features that make it different from the other rebel organizations. The latter fight first and foremost for a regime change within the existing national borders, whereas the Islamic State’s main objective is to establish an Islamic state with unspecified borders, exclusively enforcing Sharia law. It fights both the regimes in power and rebel militias in order to carve out territory for setting up the intended Islamic state.

The Islamic State was created in Iraq in 2006 when the local branch of Al-Qaeda and some jihadi groups merged into an organization that was first called the Islamic State in Iraq (ISI). It was headed by a certain Ḥāmid Dāwūd Khalīl al-Zāwī with the battle name Abū ‘Umar al-Baghdādī, about whose personal background is not very much known. He succeeded in establishing the rudiments of the Islamic State that until 2015 controlled a considerably large territory in North West Iraq and North East Syria. One of the main features of this organization is its deep enmity towards the Shi`ites, which, originally, made it attractive to Iraqi Sunnites. This was a result of the change in the balance of power in Iraq after the American occupation. Under Saddam Hussein the political elite was Sunnite and Arab, although they represented only a minority in the country. After the occupation, political power shifted toward the largest community, the (Arab) Shi‘ites. At the same time the Americans dissolved the two main props of the ancient regime, the army and the Baath Party. Many Iraqi Sunnites, therefore, resented the new, mainly Shi‘ite government and the Shi‘ites in general. This resentment was expressed in both political and theological terms: The Sunnites opposed the Shi‘ites not only as “usurpers” of the political power in Iraq, but also as an expansionist power, striving, together with Iran and Hezbollah, at conquering a slice of the Middle East stretching from Iran to Lebanon. On the level of religion, many Sunnites, referring to Shi‘ites with the pejorative term Rāfidites (“Rejectionists”), regarded them as ← 12 | 13 non-Muslims. In Iraq, these sectarian feelings of resentment helped reinforce the military power of the Islamic State because of the support of former followers of Saddam Hussein, now converted to Islamism: the Baathists, the former military, and disaffected Sunnite tribes. When, since the beginning of 2013, the Islamic State started its operations in Syria, it could also recruit soldiers and civilians there because of religious opposition against the Alawites, to which the ruling elite of Assad belonged, and against the Shi‘ites, since the Syrian regime was assisted by Iran and the Hezbollah.

Abū ‘Umar al-Baghdādī was killed in 2010 and succeeded by Ibrāhīm ‘Awwād Ibrāhīm ‘Alī al-Badrī with the sobriquet of Abū Bakr al-Baghdādī. The military strength of the Islamic State now greatly increased by the influx of foreign volunteers from the Arab world, Central Asia and Western Europe and its economy by the Islamic State’s control of oil wells. In the first months of 2013, the Islamic State extended its operations to North Syria. Within one year the Islamic State controlled northern regions of Syria with the towns of Deir el-Zor as well as Raqqa, which became the capital of the Islamic State. In Iraq the city of Mosul was conquered by Islamic State in June 2014. By the summer of 2014 the Islamic State was ruling over a large area in Syria and Iraq, with some eight million inhabitants. The conquest of Mosul, the first large city under control of the Islamic State, was regarded as an opportunity to proclaim the Islamic State as a Caliphate. On 29 June 2014 the Shūrā (Consultation) Council of the Islamic State appointed Ibrāhīm Abū Bakr al-Baghdādī and swore allegiance (baya)4 to him as the caliph of all Muslims, having examined his qualifications for the office. In accordance they requested that all Muslims, wherever they live, pledge allegiance to him and emigrate (hijra) to the state to offer support.5

In the course of 2013 and the first half of 2014, the state structure became more articulated and the Islamic State carried out more and more state duties via ‘ministries’ (dīwāns). The number of ministries grew in the course of time. There were a total of fourteen in the summer of 2014.6 The territory of the ← 13 | 14 Islamic State was divided into provinces (wilāyat), where local departments of the ministries function.7

3.   Enforcement of Sharia

The organization of the Islamic State shows that the enforcement of Sharia law is regarded as the raison d’être of the state. There are five ministries that directly deal with Sharia. The Ministry of Fatwas and Research handles the theoretical side: It publishes treatises about topics related to Islam and Sharia and fatwas on practical matters, such as Islamic taxation, the treatment of prisoners of war, travelling, games, the behavior of women, smuggling, prescribed clothing, rituals and organ transplants.8 On a doctrinal level, the Ministry of Education is also important. This ministry ‘purges’ the curricula of schools of non-Islamic matters and develops study programs consistent with version of Islam propagated by the Islamic State. The Ministry of Spreading of Islam, Mosques and the Religious Foundation controls the mosques and makes sure that no preacher propagates ideas contrary to religious doctrines of the Islamic State. There are two ministries charged with the direct application of Sharia: that of the religious police (ḥisba) and that of the administration of justice and complaints. The ḥisba falls under the Sharia courts and deals with public morality and religious behavior. For instance, religious police officers enforces that people ← 14 | 15 wear Islamically prescribed clothing and that men and women do not mix in public. They also monitor shops and checks that they are closed during prayer.9 There is also a special female police corps called the Al-Khansā ’ brigade. This brigade mainly oversees that women wear the prescribed clothing and that they behave decently in public. Women infringing upon the rules are arrested or flogged on the spot.10

Non-religious courts have been banned on the Islamic State territory and have been replaced with Sharia courts. These courts are authorized to settle civil and family disputes and to try criminal cases, which often end in harsh sentences of corporal punishment and mutilation such as lashing, amputation, stoning and crucifixion.11 Protection of public order and security is the duty of the security services, which fall under the Ministry of Public Security (Dīwān al-Amn al-‘āmm, often referred to as Amni or Emni). These services are responsible for the security of the person of the caliph and the implementation of his decisions and the execution of criminal sentences of the Sharia courts. They also carry out political murders, kidnappings and extortion.12 More than other ministries, the Ministry of Public Security is dominated by officers from the former security services of Saddam Hussein. This explains that the police and the security services are used the same torture methods as were applied under Saddam Hussein.13 In the following I shall sketch how Sharia is enforced in some of the domains of state activity. ← 15 | 16

There is a document ascribed to Abū ‘Umar al-Baghdādī, called ‘Aqīdatunā (Our Creed), which summarizes the principal points of faith of his movement and, at the same time, contains a declaration of war and a license to kill. The text is published on YouTube14 in spoken form and also as a written text on the Internet.15 In July 2014 a revision of this document appeared under the title “This is our credo and our method” (Hādhihi ‘Aqīdatunā Wa-Manhajunā).16 The contents in both documents seem to be purely theological; however, almost all issues addressed in these documents have political consequences since the theological definition of unbelief entails the permission or obligation to kill. That the foreign troops of the American-led coalition (“Crusaders”) in Iraq are lawful targets goes without saying and is not even mentioned in the document. More important are the statements on the local Muslims. Here I follow the older document that is most detailed in this respect. Eight of its nineteen sections deal with the theological question of apostasy and, especially, what are the acts, beliefs, and utterances that excommunicate a Muslim (takfīr). The consequences are extremely serious since apostates, according to this Creed, must be killed. The criteria for being regarded as a Muslim by the Islamic State are very strict and leave out many of those who see themselves as believers. According to this document, beliefs that make a Muslim an apostate are being a Shi’ite (section 2), submitting legal disputes to courts adjudicating according to man-made law or tribal custom rather than Sharia (section 5), impairing the dignity of the Prophet, his relatives, and the first caliphs by building shrines on their graves and allowing believers to venerate them (section 6), following secular ideologies such as Baathism and communism (section 7), collaborating with the occupier (section 8), with the rulers and the military of all Muslim countries, since there the laws of idols (ṭāghūt) are enforced and not the Sharia (section 10,) and, finally, the soldiers of Iraqi army and police officers and members of related organizations (section 11). This Creed, therefore, justifies the killing of nearly ← 16 | 17 all Iraqi civilians and soldiers – the Shi’ites, the soldiers of the regular army, police officers, non-Muslims – and actually permits the killing of all citizens of Iraq since all of them would fall under the description of those who submit their disputes to state courts, espouse secular ideologies, or collaborate with the occupiers.

For the Islamic State there are many apostates who could lawfully be killed. However, massacres at that scale are not regarded viable. Therefore, the Islamic State has excavated a procedure from classical fiqh, which allows them to spare the lives of apostates after indoctrination and repentance. Under classical Sharia, apostates may not be executed until offering them the opportunity to repent and return to Islam. This offer is called istitāba (i.e. asking a person to repent). The Islamic State has introduced a bureaucratic form of istitāba for those who are regarded as apostates by the Islamic State, but are willing to embrace the Islamic State version of Islam. They have to follow an indoctrination course of usually two months and pass an examination, after which they are handed an official certificate stating that they are not anymore regarded as an unbeliever. This is in general voluntary but mandatory for defectors from the regular army or other oppositional militias, for all teachers and personnel of educational institutions in the Syrian parts of Islamic State territory, and for people who return to Islamic State territory for a journey abroad.17

According to most schools of law, the head of state of the Muslims may choose what to do with prisoners of war: they may be set free, be enslaved, be ransomed ← 17 | 18 or be killed.18 The Islamic State has massively executed their prisoners, often by slaughtering them with knives. And some of them were burned alive, such as the Jordanian pilot, whose punishment was justified in a fatwa as retaliation for his bombing attacks.19 The execution was filmed and put on the internet.

In August 2014 the Islamic State conquered the region of Sinjar in Northern Iraq inhabited mainly by Yezidis. In the Ottoman Empire, these Yezidis were protected as dhimmīs just like Christians and Jews. The Islamic State, however, followed a contrary legal opinion20 and refused to offer the Yezidis protection. Following this interpretation, the Islamic State justified taking the lives and properties of the Yezidi men, and enslaving women and children. The captured women (just like movable property) were part of the booty of war: they became the property of the military who had participated in the battle that resulted in their captivity.21 These soldiers would acquire ownership after the distribution of the booty to the individual soldiers by the commander. Usually, however, these slaves and goods were not distributed in kind but sold in auctions (in which the soldiers could bid and buy booty for reduced prices) and the money was distributed among the soldiers. Enslaving the several thousands of captured women was, from the Islamic State perspective, a practical solution: the prisoners would be taken care of and guarded by their masters, and they could meet the sexual needs of the fighters. The Islamic State, thus, has revived slavery and the captured women, by virtue of the norms of Sharia, were forced to have sex with their owners. In order to inform the new slave owners of their rights and duties, the Ministry of Research and Issuing Fatwas (Dīwān al-Buḥūth wa-l-Iftā ‘) published a booklet in the fall of 2014, summarizing the relevant rules of Sharia. 22 This was a practical publication, since these rules are ← 18 | 19 not arranged in one single chapter in the books on jurisprudence, but spread over several chapters, such as those on marriage, penal law, sale, emancipation, succession, and so on.

The Islamic State conquered regions and towns where non-Muslim subjects lived. Under Sharia law, Jews and Christians (The People of the Book) could enter a treaty of dhimma, by virtue of which they were entitled to the legal protection of their lives, their property, and freedom (i.e. they could not be enslaved). In exchange, they had to pay a special tax, jizya, and were obliged to abide by certain regulations demonstrating in public life that their status was inferior to the one of Muslims. One of the oldest and most important text of such treaties is the pledge of Caliph ‘Umar concluded with (or granted to) the inhabitants of Jerusalem in 638.23 Its contents became exemplary for the doctrine of fiqh. In modern times, however, nation states in the Middle East have abolished the dhimma-system, and regard, ideally, all citizens as equal before the law, regardless of their beliefs. Now, section 12 of the Islamic State Credo ‘Aqīdatunā by the Abū ‘Umar al-Baghdādī (see above) stipulates that the non-Muslim minorities have violated their original agreements of protection by not paying jizya tax and not abiding by the stipulations imposed upon them under Sharia law and are therefore lawful targets of violence, unless they conclude a new agreement with the Islamic State. The same is mentioned in the “Pledge to the Christians of Raqqa”, proclaimed in February 2014. 24 Many Christians ← 19 | 20 fearing that their lifes and properties were in danger, left the Islamic State territory, often forced to leave their properties behind.

The administration of justice is the monopoly of Sharia courts. They settle civil disputes, but not very much is known how they function. This is different with regard to the administration of criminal justice.25 Although we do not know very much of the trials, the punishments of the transgressors are well-known. It is the policy of the Islamic State to carry out penalties in public and disseminate photographs and videos. On the internet there are thousands of appalling videos and photographs of persons who are being crucified before being killed, whose hands or feet are being amputated, who are being beheaded with a sword or killed by throwing them off from the roof of a high building (for homosexuals) and the like. Crucified bodies are left hanged for some time, with notices of their crimes hanging from their necks. The heads of decapitated persons are sometimes put on the spikes of fences in public places. In view of the frequency of such penalties, it is implausible that the Sharia courts take into account the strict conditions for convicting persons for ḥadd offences or killing (qiṣāṣ). Many of the local observers doubted whether the Sharia courts in criminal trials did notactually pay attention to the requirements of evidence and procedure. Often persons are summarily sentenced and punished on the spot.26 The religious police (ḥisba) and the women al-Khansa’ Brigade, operate in the same way: if they see offences against morality or religious norms, they act immediately and flog or arrest the transgressors. Among the religious norms that are strictly enforced are the ban of smoking, of wearing T-shirts with certain pictures, of playing football and of raising pigeons on the roofs of houses. Women must wear a face veil in public and must be accompanied by a male relative (maḥram). ← 20 | 21

4.   Conclusions

As we have seen, violence and brutal governance are essential characteristics of the Caliphate of Raqqa. This is not amazing, in view of the ambiance of relentless repression of the regimes of Saddam Hussein and Bashar al-Assad. There are differences, however, between these regimes and the Islamic State: the killing and torturing of the former regimes were carried out behind the prison walls, regarded as an unpleasant necessity in order to protect the regime. The Islamic State, to the contrary, executes its brutal repressive practices in public and justifies them as the enforcement of the Sharia. This legitimation by Sharia is a result of cherry picking: The religious leaders of Islamic State have selected the most ruthless Sharia doctrines and opinions in, for instance, the fields of takfīr, the treatment of prisoners of war and non-Muslims and for the criminal procedure of imposing ḥadd penalties. The ruthless acts and policies carried out by the Islamic State are framed as religiously desirable and as evidence that a really Islamic state is being established. Enforcement of this Sharia, coupled with violence and relentless governance, is the crucial base of the Caliphate of Raqqa. It is my contention that the way Sharia has been excavated by the Islamic State from the classical corpus of fiqh, and then shaped and applied, is first and foremost informed by its use for the legitimation of its infrastructure of brutal repression. However, in addition to this, the strict enforcement of Sharia is presented as the only correct version of Islam and, therefore, the justification of the existence of the Islamic State.

The Caliphate of Raqqa presents itself deliberately as a violent power, bloodily suppressing its subjects, and especially the non-Muslims. This constitutes also a message of shock and awe to the enemies, hoping that the enemy troops prefer desertion rather than being caught by the Islamic State and being bloodily slaughtered as a prisoner of war. Emphasizing its relentless power that crushes its enemy creates the image of invincibility. This triumphalism added to the attractiveness for foreign volunteers of joining the IS. However, the defeats that the Islamic State has suffered during the last year must have undermined this image of triumphalism. At the present (October 2017), the Islamic State has lost its cities and its territory has shrunk considerably.

The Islamic State claimed to be a genuine Islamic state, the only one now in existence and organized in order to enable Muslims to live the life of a good Muslim. This was one of the foremost propagandistic aspects addressed to its subjects and also, specifically, to the potential jihadist volunteers from abroad. In addition, the Islamic State positioned itself as a real anti-Western defending Islam against the attacks of the Western states, referred to as “Crusaders”. Being anti-Western, then, implies contempt of universal human rights principles since ← 21 | 22 → these are seen as a totally Western invention. For the Islamic State – as well as for other Salafi groups – they are no part of the divine law, but rather made by man. And although Westerners assert that human rights are universal, this is hypocrisy according to the Islamic State scholars: human rights are not universally and justly applied: They are invoked only in order to weaken political enemies by charging them with human rights violations, which they condone if committed by Western states of their allies. Contempt of human rights standards is an intentional ideological tool to legitimize the Islamic State as a really anti-Western and Islamic state. The Islamic State deliberately violates human rights standards and the norms of international law of war, not only for practical reasons – observing these rules makes it more difficult to brutally repress its subjects –, but also for ideological motives. The Islamic State has instrumentalized brutal government and violation of human rights principles, not only for oppressing its subjects and scaring its enemies, but also as an ideological messaging stating that the Islamic State is defending Islam against Western military and ideological aggression. And in order to justify this policy of relentless cruelty, the leaders of the Islamic State have molded a very particular appalling version of the Sharia, consisting of “fossilized” opinions and doctrines, excavated from the rich and diverse corpus of Islamic jurisprudence. ← 22 | 23 →


1        See for a discussion my Crime and punishment in Islamic law: Theory and practice from the sixteenth to the twenty-first century, Cambridge: Cambridge University Press, 2005, chapter 5 (Islamic criminal law today).

2        The “Islamic State” refers here to the organization once known as the Islamic State of Iraq (ISI, October 2006-April 2013), the Islamic State of Iraq and Sham or the Islamic State in the Levant (ISIS, ISIL April 2013-June 2014), and the Islamic State (IS, June 2014-present). This usage conforms to its followers’ own shorthand for it.

3        For the origins and development of IS, see Weiss, M., and Hassan, H. 2015, ISIS: Inside the army of terror. New York: Regan Arts; Stern, J., and Berger, J.M. 2015. ISIS: The state of terror. New York: Harper Collins Publishers; Atwan, Abdel Bari. 2015. Islamic State: The digital caliphate. London: Saqi Books.

4        For the term bay‘a, see Wagemakers, Joas. 2015. “The Concept of Bay’a in the Islamic State’s Ideology .” Perspectives on Terrorism 9 (4):98-106.

5        The English translations of the proclamation is published in: http://triceratops.brynmawr.edu/dspace/bitstream/handle/10066/14242/ADN20140629.pdf (accessed 19 April 2017); Cook, David. 2015. Understanding jihad. 2nd ed. Berkeley etc.: University of California Press. pp. 224-237.

6        These were religious affairs: the Ministry of Spreading of Islam, Mosques and Religious Foundations (Dīwān al-Da’wa wa-l-Masājid wa-l-Awqāf), the Ministry of Administration of Justice and Complaints (Dīwān al-Qadā’ wa-l-Maẓālim), the Ministry of the Religious Police (Dīwān al-Ḥisba), the Ministry of Research and Fatwas (Dīwān al-Buhūth wa-l-Iftā’) and the Ministry of Education (Dīwān al-Ta’l īm); there are three that mainly deal with financial and economic affairs: the Ministry of Finance (Dīwān Bayt al-Māl), the Ministry of Mineral Resources (Dīwān al-Rikāz) and the Ministry of Agriculture (al-Zirā’a). There are two ministries for Warfare (Dīwān al-Jund) and one Ministry of Security (Dīwān al-Amn al-’āmm); and finally four for specific government duties: the Ministry of Information (al- ‘Alāqāt al- ‘āmma), the Ministry of Bedouin Tribes (Dīwān al-’Ashā’ir), the Ministry of Public Health (Dīwān al-Ṣiḥḥa) and the Ministry of Public Services (Dīwān al-Khidamāt). See the references mentioned in the previous note.

7        Tamimi, Aymenn Jawad al-. 2014. “The Dawn of the Islamic State of Iraq and ash-Sham.” Current Trends in Islamist Ideology 16:5-16; Al-Tamimi, A.J. 2015, “The Evolution in Islamic State Administration: The Documentary Evidence”, Perspectives on Terrorism, Vol. 9, No. 4, http://www.terrorismanalysts.com/pt/index.php/pot/article/view/447/html; Caris, Charles C., and Reynolds, Samuel. 2014. “Islamic State governance in Syria.” In Middle East Security Report, 22, July 2014: Institute for the Study of War; Abu Haniyeh, Hassan. 2014. “Daesh’s Organisational Structure.” AlJazeera Center for Studies. http://studies.aljazeera.net/en/dossiers/decipheringdaeshoriginsimpactandfuture/2014/12/201412395930929444.htm (accessed 19 April 2017).

8        Bunzel, Cole. 2015. “32 Islamic State fatwas.” Jihadica: Documenting the Global Jihad, 2 March 2015: http://www.jihadica.com/32-islamic-state-fatwas (accessed 19 April 2017).

9        Atwan, “Islamic State.” pp. 129, 139.

10      Winter, Charlie (transl. and analysis). 2015. Women of the Islamic State: A manifesto on women by the Al-Khanssaa Brigade. Quilliam Foundation: https://therinjfoundation.files.wordpress.com/2015/01/women-of-the-islamic-state3.pdf (accessed 19 April 2017).

11      Van Ostaeyen, Pieter (2013), Amnesty International, ISIS and Islamic penal law’ (28 December 2013): https://pietervanostaeyen.wordpress.com/2013/12/28/amnesty-international-isis-and-islamic-penal-law/ (accessed 15 April 2017); Van Ostaeyen (2014), ISIS crucifies two prisoners in ar-Raqqa’ (30 April 2014): https://pietervanostaeyen.wordpress.com/2014/04/30/isis-crucifies-two-prisoners-in-arraqqa (accessed 15 April 2017); Van Ostaeyen (2014), ‘An Official Islamic State statement on Shar’i punishments’ (16 December 2014): https://pietervanostaeyen.wordpress.com/2014/12/16/an-official-islamic-state-statement-on-shari-punishments/ (accessed 15 April 2017).

12      Abu Haniyeh, “Daesh’s Organisational Structure”.

13      Amnesty International, 2013, ‘Syria: Harrowing torture, summary killings in secret ISIS detention centres’ (19 December 2013): https://www.amnesty.org/en/latest/news/2013/12/syria-harrowing-torture-summary-killings-secret-isis-detention-centres/ (accessed 19 April 2017).

14      E. g. https://www.youtube.com/watch?v=kwYPdIaoGio (accessed 15 June, 2015)

15      Arabic text: https://goostmmb.wordpress.com/2014/01/23/%D8%B9%D9%82%D9%8A%D8%AF%D8%A9-%D8%A7%D9%84%D8%AF%D9%88%D9%84%D8%A9-%D8%A7%D9%84%D8%A5%D8%B3%D9%84%D8%A7%D9%85%D9%8A%D8%A9-%D9%84%D8%A3%D9%85%D9%8A%D8%B1%D9%87%D8%A7-%D8%A3%D8%A8%D9%88%D8%B9/ (accessed 19 April 2017). English translation in Peters, R. 2016. Jihad: A history in documents. Princeton: Markus Wiener Publishers, pp. 196-200.

16      Arabic text and English translation in Al-Tamimi, A.J. 2015, ‘This is our Aqeeda and This is our Manhaj: Islam 101 according to the Islamic State’: http://www.aymennjawad.org/2015/10/this-is-our-aqeeda-and-this-is-our-manhaj-islam (accessed 19 April 2017).

17      See for the order that persons who had been attached to regular armies or other rebellious groups have to follow the istitāba courses with regard to Deir al-Zor (Wilayat al-Khayr), the journal Arabi21: http://arabi21.com/story/824870/%D9%81%D9%8A-%D9%85%D8%B9%D9%87%D8%AF-%D8%A7%D8%B3%D8%AA%D8%AA%D8%A7%D8%A8%D8%A9-%D9%84%D8%AA%D9%86%D8%B8%D9%8A%D9%85-%D8%A7%D9%84%D8%AF%D9%88%D9%84%D8%A9-%D8%AA%D8%AA%D8%B3%D8%A7%D9%88%D9%89-%D8%A7%D9%84%D9%86%D8%B5%D8%B1%D8%A9-%D9%88%D8%A7%D9%84%D9%86%D8%B8%D8%A7%D9%85-%D9%81%D9%8A%D8%AF%D9%8A%D9%88 (accessed 19 April 2017). See also the order of 11 July 2014 from the Bureau of Security Deir el-Zor. (A photograph of this document is shown in this website after a great number of horrendous pictures of torture and atrocities): http://www.lebwindow.net/2014/07/%D8%A3%D8%B1%D8%B4%D9%8A%D9%81-%D8%A7%D9%84%D8%AE%D9%84%D8%A7%D9%81%D8%A9-%D8%A7%D9%84%D8%AC%D8%B2%D8%A1-%D8%A7%D9%84%D8%AB%D8%A7%D9%86%D9%8A-%D9%81%D8%B6%D8%A7%D8%A6%D8%AD-%D8%AF%D8%A7/ (accessed 19 April 2017); and also Website Rozana Radio, 14-6 2015: http://rozana.fm/ar/node/13048 (accessed 19 April 2017).

18      Ibn Rushd, 1960. Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid. Cairo: Maktabat Muṣṭafā al-Bābī al-Halabī. Vol. 1, p. 382.

19      For a photograph of this fatwa and English translation, see https://pjmedia.com/blog/isis-issues-fatwa-to-justify-burning-of-jordanian-pilot (accessed 19 April 2017).

20      The jurists held that all non-Muslims could enter a treaty of protection, dhimma, except the Shafi’ite school of jurisprudence, which held that only the Jews, Christians, and Zoroastrians were entitled to do so. Ibn Rushd, Bidāyat, vol. 1, p. 389.

21      See Peters, R., “Booty,” in Fleet, Kate, and Krämer, Gudrun, et al. (eds.), Encyclopaedia of Islam Three. Leiden: Brill, 2007.

22      Su’āl wa-jawāb fī ‘l-saby wa-l-riqāb (Questions and Answers about Captives and Slaves). 2014. Published by Maktabat al-Himma, al-Dawla al-Islāmīyya, Muḥarram 1436 [October-November 2014]. 5 pp.: https://ia902701.us.archive.org/25/items/SabiReqab/Sabi_Reqab.rar. (accessed 19 April 2017). English translation in Peters, R., Jihad: A history in documents. 2016, pp. 211-216.

23      The text of ‘Umar’s pledge has been transmitted in several versions with widely varying wordings. The Islamic State text is closest to the one included in Tārīkh Dimashq by Ibn ‘Asākir (d. 1175), except that the Islamic State text is a letter written by Caliph Abū Bakr al-Baghdādī to the Christians of al-Raqqa, whereas Ibn ‘Asākir’s version is a letter written by the Christians of Jerusalem to ‘Umar. Ten out of the twelve stipulations are adopted from ‘Umar’s pledge as presented by Ibn ‘Asākir. See for the different versions: https://ar.beta.islamway.net/article/38931/%D8%A7%D9%84%D8%B9%D9%87%D8%AF%D8%A9-%D8%A7%D9%84%D8%B9%D9%85%D8%B1%D9%8A%D8%A9-%D8%A7%D9%84%D9%86%D8%B5%D9%88%D8%B5-%D8%A7%D9%84%D9%88%D8%A7%D8%B1%D8%AF%D8%A9-%D9%88%D9%85%D9%86%D8%A7%D9%82%D8%B4%D8%AA%D9%87%D8%A7 (accessed 19 April 2019). See “The Pledge to the Christians of Raqqa”, proclaimed in February 2014, which partly follows ‘Umar’s pledge. Arabic text in:

24      http://www.alarabiya.net/ar/arab-and-world/syria/2014/02/28/%D8%B5%D9%88%D8%B1%D8%A9-%D8%A3%D9%88%D9%84-%D8%B9%D9%87%D8%AF-%D8%B0%D9%85%D8%A9-%D8%A3%D8%A8%D8%B1%D9%85%D8%AA%D9%87-%D8%AF%D8%A7%D8%B9%D8%B4-%D9%85%D8%B9-%D9%85%D8%B3%D9%8A%D8%AD%D9%8A%D9%8A%D9%86-%D9%81%D9%8A-%D8%B3%D9%88%D8%B1%D9%8A%D8%A7-.html (accessed 19 April 2017). English Translation in Peters, R., Jihad: A history in documents. pp. 207-210.

25      For an Arabic and English translation of the Islamic State version of Sharia penal law, see Van Ostaeyen, Pieter, 2014, ‘An Official Islamic State statement on Shar’i punishments’ (16 December 2014), https://pietervanostaeyen.wordpress.com/2014/12/16/an-official-islamic-state-statement-on-shari-punishments/ (accessed 15 April 2017). The statement includes as capital crimes casting insult on Allah/the Divine, casting insult on the Messenger, insulting the faith, adultery for the married, homosexuality, spying for the infidel, apostasy and banditry with killing. Flogging (with or without expulsion from the country) is the penalty for drinking alcohol, adultery for the unmarried and masturbation. Theft and banditry with theft is punished with amputation of the right hand or both the right hand and left foot. The statement is certainly not meant to be complete, since it does not list killing or wounding or slander (qadhf).

26      Birke, Sarah, How the Islamic State rules. NY Review of Books, 5 Feb., 2015. http://www.nybooks.com/articles/archives/2015/feb/05/how-isis-rules/ (accessed 5 April 2017).

The Aims of Punishment in Islamic Criminal Law and their Reflection in the Iranian Criminal Justice System

Firouz Mahmoudi Janaki, Teheran

Abstract

Punishment is one of the principles of criminal law that is related to criminalization and criminal responsibility. The three are considered as the basic elements in criminal law. A philosophy of punishment is necessary both to provide a theory of criminalization and also to give feature to penal responsibility. Punishment has unique features in Islamic criminal law, on the one hand because of the unchangeability of some crimes, and on the other hand because these crimes are regarded as specific to Muslims and Islamic society. It is common to consider four objectives of punishment, retribution, incapacitation, rehabilitation, and the protection of society. However, in the case of ḥudūd (sg. ḥadd) and qiṣāṣ crimes retribution is the main purpose, while in case of ta‘zīr crimes deterrence is considered the main purpose. In the case of punishments under the Islamic criminal Code of Iran, reform or rehabilitation is considered the central objective in most cases. However, within the system of Islamic criminal law, punishment is not the unique means for reaching the utilitarian objectives, especially rehabilitation and deterrence; repentance, forgiveness, atonement and otherworldly punishment, concepts that are founded in belief and true faith in God and the Hereafter, are the other flanks of the reactive system which have pervasive operation, and do not apply differently or stand apart from other punishments. As Islamic jurists suppose that some Islamic punishments are fixed and can in principle not be dispensed with or changed to other sentences, philosophical perspectives and social changes cannot have a deep influence on criminal theory as a whole, unless a new approach can show that altering these punishments and their theoretical foundations is possible. By contrast, in case of ta‘zīr punishments which comprise the main part of Islamic criminal law, the way is open to provide a criminal theory, especially a normative theory of punishment and bind the state to the consequences of such a theory. The current penal system has predominantly considered the formal aspects of Islamic ← 23 | 24 religious law and therefore could not realize and recognize the social facts and needs in a changing human life. Such a penal system cannot not react properly to individual and social requirements for reaching its systematic goals.

1.   Introduction

There are three important stages in the criminal law process whose theoretical justification and explanation is necessary in every legal system: criminalization, criminal responsibility and sentencing. Although these three are different issues and separable phases they touch upon and are related to each other, so they cannot be dealt with in a different way citing different foundations in their theoretical explanation and justification. Perhaps for the general public and also for most of the professionals in this field, the question why punishment is applied is one of the oldest and meanwhile the most basic questions in criminal law philosophy that has been answered in different and sometimes similar ways. This issue has a particular importance for Islamic criminal law in our era, first due to the lack of proper debate on the philosophy of punishment in this system and secondly due to its blend with customary criminal law in some Islamic countries and most importantly in Iran. Apparently, Islamic criminal law categorizes punishments based on the significance of the forbidden behavior and has determined fixed punishments for some actions. Furthermore it has given authority to the government to determine the types of forbidden behavior and the amounts of punishment in other cases, determining of general criteria for some of them. Do all these punishments follow one goal or do they have various goals? Are the goals in this legal system different from other penal systems? Is/are goal(s) of punishment in line with the goal of criminal law as a whole or not? Can Islamic jurists justify punishment in Islamic criminal law or should they restrict themselves to a proper explanation of punishment, especially for fixed punishments? Are prescribed goals in this legal system appropriate to the mechanisms that it provides for? Can it be expected that these goals (or these mechanisms?) are changed when the Islamic system of punishment enters a new political-social context?

The necessity of this type of questions is due to the fact that penal law is criticized and evaluated more than other branches of law because of its character as the most severe type of reaction against wrongful behavior and, for the offender, resulting in a high degree of limitation of individual freedoms and rights. ← 24 | 25 → All these issues would call for a deep study about the mentioned triple levels, this article, however, limits itself to briefly evaluate and criticize the viewpoints proposed on the goals of punishment. A point which is necessary to explain is that this article due to criminalization of behavior in Islamic religious law and in the better world doesn’t evaluate the criminalization theory in this legal system directly unless it is necessary to explain and criticize the punishment theory. Furthermore not every single punishment is discussed because it is generally assumed that these punishments have been accepted as a legal truth in this system and consequently in the criminal law of Iran. However, entering into this discussion needs further research independent of this article.

2.   Theories of Punishment

Scholars and philosophers have not always agreed on the goal for punishments. They determined the goal of punishment depending on how and on what principle they have accepted a right of the government to punish and its moral foundations. Punishment may be inflicted on the offender because he deserves it; an offender receives punishment for a crime based on this idea. If the response and the reaction to the crime have to be appropriate and just, any concern about the effects of punishment in the future is irrelevant. Punishment is a reaction to a crime that happened in the past. So it is retrospective and the offender receives his punishment as a reward for what he has done to make amends to society and for unjustifiable advantage to be retrieved from him. This theory has been codified as a deontological approach to punishment not as a teleological or consequential one. By contrast, some theories justify punishment according to the consequences of punishment. “A consequentialist view holds that the rightness or wrongness of any action or practice depends solely on its overall consequences. It is right if its consequences are good (at least as good as those of any available alternative), and wrong if its consequences are bad (worse than those of some available alternative)”.1 The main utility of punishment is preventing the offender from repeating the crime or putting him as example for others to learn and not to commit a crime. Also reforming and rehabilitating the offender or making him incapable of committing a crime are other benefits which are considered in this type of theories ← 25 | 26 so that maintaining public order and protecting society against crime, and, in the words of many Islamic jurists, against “corruption”, can be considered the profit caused by punishment. All these explanations are looking forward while the first type is looking back.

The aim of introducing these two general categories of theories – that can be found in philosophical and legal texts – is to understand how Islamic thinkers and jurists have justified or explained punishment by referring to the principal Islamic texts and sources. Did they interpret punishment within the framework of retribution or utilitarianism? Is it possible to consider other interpretations apart from these for punishment? In this case, what are the features of this new classification?

2.1.     Deontological approach and its background in the goals of punishment in the Islamic criminal system

The first goal of punishment is administration of justice. This theory – which in Western philosophy mostly stemmed from Kant’s and Hegel’s ideas and thoughts – has always had some advocates, but it has also encountered a wave of criticism; in this view the reason for punishment of crime is just because the offender has obtained an undeserved advantage by committing the crime. A thief who steals the property of another person has appropriated an illegal property that he could not achieve legally.

Some Islamic thinkers express that ḥudūd punishments and qiṣāṣ (retaliation) are applied to restore the balance which has been disturbed and also to realize justice.2 In this justice-centered theory it is not important whether the offender commits a crime again or learns his lesson from suffering punishment, but what is important is the administration of justice to the degree the offender deserves it. The result of the punishment is not worthy of reflection, what is important is the duty of society to punish him, that is, he is punishable and blameworthy ethically. As Easton and Piper mentioned, “on the retributivist theory a wrong action should be met by a sanction appropriate to the action and deserved by the offender, so it is argued that: (i) punishment should be given in response to its being deserved; (ii) the penalty should be appropriate to the wrong action; and (iii) the consequences of punishment are irrelevant.”3 ← 26 | 27

Retributivists have a distinctive approach to humans; in Kant’s viewpoint, a person is a rational agent for whom the law has an imperative function not a coercive one, because an individual himself recognizes and accepts law and thus some commitments and obligations are imposed on him. Intellect is a fundamental criterion and a basis for ethical regulation (by law). Kant considers autonomy or independency of the individual and intellectuality as the most fundamental features of human beings. Independency of intrinsic and inner action of a person requires to treat him as an independent creature with dignity and respect. Ethical law and regulation requires people to be treated equally.4

From the point of view of some Islamic jurists, however, the basis of the right to punish is God’s decree that has been considered to emanate from divine mercy. It is mercy like the father’s crackdown in the education of child.5 From this point of view, although the administration of justice is sufficient to justify punishment, there is a higher justification than that as the basis of legitimation is the divine decree and people’s acceptance can be based on the belief in that. Such obedience, however, is expected from believers, not unbelievers. Therefore, in the Islamic penal system, the goals of punishment should be based on the legislator’s order and faithful acceptance. If punishment in the traditional approach seemed to be a mercy, it follows from the faith-centered nature of the religious law that its regulations are accepted due to faithful willingness and desire more than due to force and coercion. In this context, punishment, if imposed in an ideal Islamic society, can of course be mercy in the view of believers and for believers.

We cannot find a statement in Quran and Hadith that clearly indicates a specific goal of the legislator concerning punishments. What has been mentioned is an impression that scholars, commentators and Islamic jurists have concluded from verses of the Quran and Sunna. Some of these evidences are general in topic and some others are specific to ḥudūd. The following word of God is usually referred to in order to explain one of the aims of punishment: “penalty of evilness is likewise evilness” (Sura al-Shūrā: 40). This verse can guide us to two points: First, reaction to evilness is a behavior like that. Thus, punishment is an evil like an offence, which is also an evil. The second point is that evilness can be a behavior that has not only been branded as a sin but also considered as a crime in the religious law and there is punishment or retribution for that. In this explanation, the emphasis of ← 27 | 28 Islamic jurists is more on equality and proportionality that have high importance in the retribution theory.

This means that the offender is punished because he has committed an evil and a sin. He deserves a reaction that corresponds to his conduct (Sura Al-Nahl 126). Based on this famous impression, the Quran considers evilness – which we interpret as punishment – as a penalty, or quid pro quo, for evilness.

As to the ḥudūd crimes, the aim of retribution is more significant than other aims. Some reasons can be given for this assertion: first, based on the traditional theory in Islamic law, ḥudūd are considered as fixed in the religious law as regards two aspects: one, in terms of the values whose violation has been criminalized and the other, in terms of the punishments for them. Islamic branches of thought agree that the criminalization of such behavior has always existed and that it applies regardless of time and place. However, the unchangeability (thābitangārī) of these crimes by itself cannot indicate that the aim behind punishment is retribution because discussing what behavior should be a crime is an area within the theory of criminalization that is not the purpose of this article. However there is consensus among Islamic jurists and lawyers that ḥudūd crimes are in essence considered a right of Allah, except in the case of qadhf (falsely alleging illegal sexual intercourse) and sirqat (theft) (before bringing the case to the court or proving it) and that they are fixed due to that reason. Kasani in his famous book says, when defining ḥudūd crimes: “these crimes are legally forbidden actions for which God punishes their perpetrators with certain punishments that they deserve”.6 Mohammad Avva has interpreted God’s right in ḥudūd crimes in this way, noting that the “benefit of executing ḥudūd is for all people and, in today’s words, a public good”.7 Although this analysis is utilitarian, believing such crimes to be unchangeable and based on the right of Allah makes punishment the ethical retribution for the crime. The stability of ḥudūd crimes is considered to be based on the importance of the values that Islamic religious law wants to protect because they have been considered the base of the Islamic community: Religion, soul, property, honor and wisdom.

The second point is that the unchangeability of punishments can be considered a sign of accepting the retribution viewpoint in ḥudūd. The explanation about this issue lies in the assumption of the stability of punishment and in the refusal of diagnosis and discretion of the judge to increase or reduce the punishment, it being ← 28 | 29 a feature of the retribution-based theories that the extent and type of punishment for each crime should be determined in the legal text in order to minimize the possibility of inequality, inconsistencies or discrimination in applying punishments. Here, the punishment is laid down by law by reference to the crime, not the offender. This means that the ḥudūd crimes would fall under a theory of penalization where the basic argument that guides the legislator in determining the type and amount of the punishment is the seriousness of the crime, thus observing the behavior, not the person’s penal responsibility. Of course, these two elements have been combined with each other in new readings of the retribution theory.8 However the fixed punishment shows the acceptance of the goal of retribution. As we noted above, the second principle gained from the analysis of this verse is that emphasis is not on equality or proportionality in terms of penalty, but on the level of badness of punishment, it being equal to the crime; because by reference to the Quran the response to evilness is to be evilness to a like degree. This can also lead us to another rule: punishment should be the last resort, because it is in itself an evil and we should avoid it when other alternatives are available. Further, God has mentioned “punishment” as the penalty for a criminal action or sin in the mentioned verse and in some other verses on the topic of punishment it can also be interpreted as the “penalty” for an action. For instance, the author of Al-Mizan has made such a comment in interpreting verse 38 of al-Mā’ida.9 The following verses are examples that punishment has been interpreted as jazā’, that is a recompense or response to crime in view point of retributive approach (5: 33, 34; 5: 38). However, jazā’ has another positive meaning as a recompense for good and good doers (5: 85; 39: 34).

Third, accepting the principle of toting up punishments for various crimes or in cases where punishments are not the same is another sign of ḥudūd punishments being based on a retributive aim.

Fourth, if ḥadd is to be proven by bayyina (witnesses with special conditions) according to Islamic jurists there is no way to change, convert, intercede with or forgive the punishment, or to avoid it through repentance. It is true that repentance makes it possible to forgive the perpetrator of a ḥadd crime in case of repentance before proceedings are initiated or the perpetrator is arrested, or in some cases when the ḥadd crime is proven by confession. However, after the trial there is no ← 29 | 30 route open to ignore the punishment for ḥadd.. T his shows the predominance of retribution among the aims behind the ḥudūd.

Fifth, some Islamic jurists consider ḥadd an inherent purification and atonement for sin; most of the Islamic jurists, such as the Shafei and Hanbali jurists believe that ḥadd is a purification for the perpetrator and removes eternal punishment.10 This statement can be given a further justification, namely that ḥadd is a right of Allah and that God would only punish the perpetrator of the violation of his right one time, and not two times both in the world and in the Hereafter. Accepting this position implies a sense that a ḥadd punishment is really a penalty for the action and a person who is punishable for the commission of a crime, and has been punished for that, should not be reprimanded anymore. However, it cannot be ignored that there is a second position that does not regard ḥudūd punishments as atonement (kaffāra) according to some Quranic verses and Hadiths; such as verse 34 of al-Mā’ida, where God after expressing punishment for warriors against God says: “for them is shame in this world and a great punishment in the everlasting life”.

By contrast, what according to this verse leads to the purification of the perpetrator is not the ḥadd punishment, but repentance: “except those who repent before you have power over them. For you must know that Allah is forgiving, the most merciful”. Jalāl al-Dīn al-Khwārizmī, one of the Hanafi scholars, argues for the character of ḥudūd being deterrence, not atonement by stating that they are imposed on the perpetrator not because of his will and for this reason do not work to his credit. If he repents, he will be cleansed.11

Although ḥudūd punishments have many features of retributive punishments and their rules, some Islamic jurists and scholars believe that punishments, especially in case of ta‘zīr (undetermined punishments), aim at reaching specific purposes like the prevention of crime by different functions of deterrence and reform. ← 30 | 31

2.2.     Consequentialist approach of punishment

As mentioned above, theories that pay attention to the results of behavior and justify the punishment due to its consequences form a further spectrum of theories. After a short introduction of the features of each one, the following question has to be asked: what is the main consequence of imposing punishment? Islamic jurists mostly asked this question by referring to the main functions of punishment and sometimes by expressing its different final aim, like prevention of crime or protection of society.

2.2.1. General and specific deterrence and the protection of the Muslim community

Maybe the most important category of consequential approaches in classical concepts of criminal laws sees the goal of punishment in preventing the commission of a crime in the future through deterrence of the offender from committing the crime again or through deterring potential offenders or people more generally. In the first variant – which is called specific deterrence – the punishment is supposed to give a “lesson” to the offender to not follow the way of crime again. In the second variant – which is called general deterrence – the aim is that the “consequences of committing a crime” are shown to the people in order to “intimidate them”. The effect of specific deterrence is realized as soon as the punishment is imposed and the effect of general deterrence is realized when the punishment and its enforcement gets known to the public.

Many Islamic jurists and lawyers regard ḥudūd as penalties that are imposed to prevent prohibited matters and the omission of fulfilling commands. These punishments are applied against the perpetrator so as to stop him from committing a crime again. For people who have not committed a relevant crime, the ḥudūd punishments are a deterrent from committing a crime due to the awareness about them; for offenders they are considered deterrent due to suffering of them.12 Al-Māwardī, a Shafei scholar, expresses the opinion that “punishments are deterrents that God imposed to prevent people from committing what is forbidden and omitting what should be conducted”.13

The same expression can be clearly found in the sayings of other Islamic jurists so that some of them, such as Qarāfī, one of the Maliki scholars, and many of the ← 31 | 32 Shiite jurists see the goal of executing punishment not only in the elimination of corruption caused by crimes but also in preventing offenders from the commission of further crimes and also preventing others from their commission.14 Some others such as Kamal Ibn Ḥumām, one of the Hanafi jurists, see the target in the intimidation of people, pointing out that although it is true that the offender is deterred from committing a crime again by suffering the punishment, the emphasis on, and strict prescription in religions law that punishments be executed publicly are a sign and a basis for the opinion that public deterrence is a consideration.15 Rejecting the testimonies of those against whom a ḥadd punishment has been applied is a further reason that can be mentioned as showing that there is an approach of public deterrence in Islamic law. However the reasoning behind rejecting the testimonies can be explained on the basis that these offenders have lost the quality of being just, which is one of the conditions for a witness to be admitted. Another reason for the view that deterrence is an aim is that in traditional criminal law there had been a belief that harsh and severe punishments are more fear-inspiring.

Some jurists in arguing for the deterrent aim of punishment said that one of the meanings of the term ḥadd is “prevention” or “forbiddance”16 and punishments have been named ḥaddbecause they prevent people from committing a crime and a sin17 and it is a right that belongs to God not to people to forgive the perpetrator.18

However, these references cannot disprove the viewpoint of Shah Vali Allah Diḥlawl who citing the verse 7 in the Surah al-Mā’ida, “so that he may taste the weight of the recompense of his action”, said: Ḥudūd and atonement are all preventive of crimes.19 Some Islamic jurists also argue in a similar way about ta‘zīr. According to them, ta‘zīr depends on the discretion and ijtihad of the Imam ← 32 | 33 to determine what is appropriate based on the amount and seriousness of sin and aggression as well as the audacity of the perpetrator.20

The word “ta‘zīr” has also been mentioned as meaning “prevention”.21 We understand from this meaning that ta‘zīrāt (pl. of ta‘zīr) prevent the offender from committing a crime again. Sarakhsī, when speaking about the salient features of ta‘zīr has expressed that ta‘zīr means discipline and that its purpose is to prevent a person from committing a crime again. The effect of the imposition of ta‘zīr is different from person to person: some are prevented from further crimes by an exhortation by the judge, some by the obligation to restitute damages and some others by imprisonment.22

Some scholars argue that the basis of punishment in Islamic law is equality between a crime and its punishment, and that the legislator has had regard to abstract truth and human virtues in imposing punishment. Crime is opposition to ethical rules. For crimes that contain the oppression of life, property and dignity of people, the worldly punishments have been provided for and for other crimes only punishments in the life hereafter exist.23 In the case of ḥudūd crimes, the strengthening of virtues and the provision of security has been considered as a right of God and anyone who violates those principles is considered violating God. However, ḥudūd crimes are differentiated based on the strength or weakness of the specific right that is violated; some rights belong absolutely to Allah, others have dual aspects and sometimes there is a dominance of the aspect of people’s right such as in the case of qadhf. Other authors have considered the support of social interests as a goal of the commandments in Islamic religious law besides the target of deterrence from committing a crime. Hence they have summarized these purposes of religious law – influenced by Imam Al-Harmain Jovini and his student Imam Muhammad Ghazālī – as religion, soul, property, wisdom and origin, sometimes reputation. Acts that violate these purposes are considered mafsada, corrupting, and acts that promote them are maṣlaḥa, good, because Ghazālī in defining maṣlaḥa has said: “it is the achievement of benefit and removing exorcising or setting back harms and disadvantage”.24 This group of scholars ← 33 | 34 believes that commandments of religious law have been legislated to prevent people from committing this type of corruption.

This means that in line with punishing the offender in order to prevent him from corruption, there is a more basic target which is called protection of Islamic community. Although prima facie punishment is causing inconvenience and harm for him, it is in fact in his interest to not follow sin and corruption. Therefore punishments are inconvenient by their nature, but they are applied in order to remove corruption and promote social order. Al-Māwardī also considers ta‘zīr punishments to have such a status when he says: “they are for disciplining, correcting and deterring” so that “they are differentiated as to their targets, taking in to account the difference of the sins”.25

Likewise, some other Islamic jurists also state the target of these punishments to be the protection of the community against corruption and its cleansing from sin, and regard the severity of the ḥudūd punishments as a mercy, as they prevent people from committing crimes that are in fact oppressing them and making the community insecure. However, this implies making the proof of such crimes more difficult in order to not execute ḥudūd punishments so easily.26 Some authors have considered preventing future crime and preventing damage to the community as the ultimate and final target of the ḥudūd crimes and they reiterated that the important factor in ḥudūd crimes is the protection of the Islamic community.27

In this case it cannot be said anymore that ḥudūd crimes are only retributive but they are also considered to follow, through retribution, a consequential approach, which consists of the protection of the Islamic community against corruption and harm. Some Islamic jurists also regard as acceptable and derivable from religious texts on punishment two obligations that have been considered in the new criminal law; first, the ethical obligation to educate and rehabilitate the offender to not commit a crime again, and second, the social obligation to support the community against the offender and his crime.28

To sum up the above explanations, it can be concluded that some jurists regard deterrence of committing crime as the target of punishments and they consider both the specific and general aspects of deterrence. Although this aim is common to ← 34 | 35 current criminal laws, Islamic jurists before that had tried long ago to theorize such purposes for punishment in an Islamic penal system. Besides this group of scholars, there were others who consider, based on their interpretation, that its aim is deterrence in line with a more general purpose, which consists of protecting the Islamic or Muslim community. However, they have considered the aim of punishment to be only correcting the offender or observed its final purpose to be correcting the offender and protecting the Islamic society.

2.2.2. Rehabilitation of the criminal

Some do not consider retribution and deterrence but rehabilitation of the criminal the aim of imposing punishment. Several reasons can be provided for this theory some of which can be found in sayings of Islamic jurists and lawyers.

a)   Acceptance of repentance

Some Shiite commentators have defined the concept that is closest to “repentance” in Islamic law, tawba, as a dual concept that encompasses both tawba by God, i.e. forgiveness, which is a return to the human because of mercy, and tawba by the human, i.e. repentance, which is a return to God by retraction and abandoning sin.29 Reversion from sin, return to obedience and contrition for sin30 also have been mentioned in the definition of repentance. In most of the definitions that have been provided for repentance in religious law, we find reversion to God, obedience and refraining from sins. It is a systematic feature that crime or sin has divine aspects in a more general interpretation. As al-Qurtubī has told, repentance is not due to fear or in order to gain an advantage, but is purely for the sake of God, as the repentant feels ashamed before God31 and does not only resolve to do righteous works but also carries them out as he understands the indecency of sin; as the Quran says: “and, o believers turn to Allah all together, in order that you prosper” (24: 31). Also, he mentions repentance and its signs and speaks about them as purification: “…except he who repents and believes and does good works, Allah will change their evil deeds into good deeds; Allah is ever forgiving and merciful” (25: 70); “…he who repents and does good works truly turns to Allah in repentance (25: 71)”. ← 35 | 36

Imam Muḥammad Ghazālī believes that repentance is formed by three matters: recognition, status (ḥāl) and acting. Recognition is the identification of the sin and its danger; status is pain and suffering in the repentant’s soul from such harm that is called regret, and acting is refraining from sin and doing what is possible to repair the damage in the future.32 The Quran at (66:8) defines real repentance, naṣūḥ, which can, in brief, be interpreted as the repentant avoiding sin for the sake of God through identifying the indecency of sin and its harm on himself, being regretful about the past because of the sin that he has committed knowingly or unknowingly and deciding to not return to that sin and to do good works, exert obedience and ask God’s servants to forgive him through paying their claims or satisfying them in another way.33

According to al-Ghazālī, the importance of repentance is so high that Islamic jurists and theologians are in consensus to regard it as obligatory for believers.34 Repentance of sin is considered possible, from the context of the verses in the Quran and from the Hadiths, irrespective if the crime is major or minor, intentional or unintentional and committed knowingly or unknowingly: “when those who believe in our verses come to you, say: ‘Peace be upon you. Your Lord has decreed mercy on himself, if any one of you commits evil through ignorance, and then repents and mends his ways, then he is forgiving, most merciful’”. So it was not without reason that Quran promised believers that their sins will be changed to good deeds if they repent and correct themselves. An important condition of repentance is doing good deeds and continuing them (4:18; 3:135).

As to verses and Hadiths about repentance, they indicate the effect of repentance on these sins and show that this effect is purifying. In the verses about the punishment of muḥāraba or hirāba, the Quran mentions repentance as an excuse that exempts the perpetrator from the ḥudūd punishment (5: 34; 4:16).

This article does not intend to discuss legal and jurisprudential issues relating to repentance, e.g. for which crimes or sins it has been accepted and the reasons for that in the quotes of various sayings. What matters here is that, considering famous quotations of Islamic jurists that accept repentance in case of minor sins based on texts and reasons, and also considering above all its acceptance in case of major sins and given that it has been prescribed in Islamic criminal law for all ḥudūd crimes except, in certain circumstances, for the ḥadd of muḥāraba, we see that ← 36 | 37 repentance as one of the features of Islamic criminal law emphasizes the rehabilitation of the offender. It is also relevant that repentance is embedded into a legal system whose basic reference points are divine and transcendent. Basically, crime is considered in the first rank a sin and a violation of the commandments of God and in the second rank a violation of the rights of humans and Islamic society. Its penal system contains these commandments that have intertwined heavenly-earthly features. In this system, punishment is not the only way of deterring from sin or crime, because sin or crime are considered disassociation between human beings and God. God has made repentance a means for believers to return, and it appears that the Quran rarely mentions sin without also mentioning the possibility of repentance and retraction. When the offender is judged in this world there are efforts not to punish him with a ḥadd punishment so far as this is possible. This is apparent in the principle of Dara ul-ḥadd, which means the non-enforcement of ḥadd punishment in cases of doubt and difficulty of proving the crime. In a social context in which most people accept the commandments of religious law because of their belief in God and not due to the force or fear of punishment, rehabilitation and return to God is considered the basis of repentance and due to this the Quran has mentioned it as being close to rehabilitation by describing repentance as converting sins into good deeds.

Another important fact is that repentance must be accepted before the initiation of the prosecution or arrest, or, if after that, in any event before the testimony of witnesses, and that it has to follow a confession. The impossibility to accept repentance except in these cases shows that a true repentant is regretful about his action and is trying to compensate for his sin and his crime.35 Accordingly, he must not be punished before a judgment or other conditions have been fulfilled. All acts of repentance have to take place before the initiating proceedings or the hearing of evidence. After that, repentance cannot be accepted and the perpetrator has to be punished. Perhaps it can be said that the legislator in the community of Muslims and believers seeks two types of aims in ḥudūd crimes: rehabilitation through encouraging repentance and return before initiating proceedings, and taking evidence and exacting retribution after having taken evidence. Some people say that an offender who has repented has in fact corrected himself because repentance is a sign of rehabilitation and of the purification of the offender. Therefore, punishing him is useless because the aim of punishment is also rehabilitation, an aim then already achieved through repentance. This statement can be criticized because it does not go far enough: as repentance has a purifying effect in Islamic ← 37 | 38 religious law, the repentant cannot be called offender anymore. What is more, repentance converts sins into good deeds according to the statement of Quran. In this case a punishment is not merely useless, but it is even unjust. If we only call it useless, this suggests that there remains a right to punish the offender, but that a choice is made not to exercise that right because the aim of punishment, namely rehabilitation, has been achieved beforehand. However, as the offender in such a case has been purified based on Quranic rules, and thus cannot be called an offender anymore, it is even contrary to the law and unjust to punish him. Of course, this statement does not conflict with the idea that the basis of punishment is the rehabilitation of the offender.

The opinion that rejects repentance after the arrest of the perpetrator (according to a quotation) or after the taking of evidence may be due to the fear that an offender who knows that there is evidence against him makes a declaration of his repentance in order to escape punishment because every perpetrator will after being arrested try to find a legal loophole to escape from punishment.

Considering the attention that God has paid to repentance, how have criminal laws dealt with it? Section 5 of the Islamic Penal Code deals with the repentance of the offender. Article 114 addresses repentance in case of ḥudūd punishments:

In the case of offences punishable by ḥadd, with the exception of qadhf and muḥāraba, if the accused repents any time before the commission of the offense is proved, and his regret and correction is certain in the eyes of the judge, the ḥadd punishment shall not be given. In addition, if the abovementioned offenses, except for qadhf, are proved by confession, if the offender repents, even after the commission of the offense is proved, the court, through the Head of Judiciary, can apply for pardon of the offender by the Leader.

However, according to explanatory note 1 to this article, “If a muḥārib repents before he is arrested or held in custody, the ḥadd punishment shall not be given”. This reflects an encouraging policy in the criminal laws of many countries in the field of crimes against public security, that encourages the disclosure of crimes and the effective cooperation in crime detection. In the cases of zinā (adultery) and liwāt (sodomy), where the offense is committed by force or coercion or deception of the victim, if the offender repents and the ḥadd punishment is not given according to this article, he shall be sentenced to a ta‘zīr imprisonment or to ta‘zīr flogging, or both, of the sixth degree (Note 2 of article 114). ← 38 | 39

In ta‘zīr punishments, which consist of almost all crimes except those categorized as qiṣāṣ, diyāt and ḥudūd (10 offences), repentance is accepted according to article 115 if the crime is of one of the lesser degrees: “In the case of ta‘zīr offenses of the sixth, seventh, or eighth degree, if the offender repents and his regret and correction is certain in the eyes of the judge, the punishment shall not be given. In other ta‘zīr offenses, [if the offender repents], the court can apply the provisions relating to mitigation of the punishment.

Note 1- The provisions relating to repentance shall not be applied on individuals to whom the provisions of re-offending of ta‘zīr offenses are applicable.

Note 2- Provisions of this article, as well as paragraph (b) of article 7 and paragraphs (a) and (b) of article 8, and also articles 28, 39, 40, 45, 46, 92, 93, and 105 of this law shall not be applicable to ta‘zīr offenses prescribed in Shari’a”.

Sheikh Baha’i, like many Islamic jurists, regards repentance as abortive of ta‘zīr punishment absolutely and without any obligation and condition.36 A further interesting fact is that the Mu’tazilite reading of verse 31 in Sura an-Nisā’ considers that avoiding major sins leads to the forgiveness of minor sins.37 This point of view within Islamic criminal laws can serve as a source of change and in this view the above provision of the Islamic Penal Code of Iran is to be criticised, because it is limited to some of the ta‘zīr crimes and does not provide a defense in relation to crimes that fall under the 1st to 5th degrees of punishment, which are more serious crimes than those where repentance is accepted. The legislature in Iran has usually tried to match the Islamic Penal Code with traditional Islamic criminal law in terms of the classification of crimes and punishments, but its steps in the adoption of institutions of mercy like repentance have been prudently and slowly. It seems that in this respect Iranian criminal law has operated in a discriminatory way and has taken on only part of Islamic religious law, not the whole of it.

If repentance is capable of cancelling ḥudūd punishments, why should it not have any effect on other punishments, especially serious ta‘zīr punishments? As repentance must be accepted as an institution of Islamic law, why should we not clearly address the conditions of accepting repentance more in detail and discuss its acceptance by judges in cases where the defendant or offender refers to and cites repentance as a defense? According to recent judgments, the payment of damages to the injured person, the reaching of satisfaction for victims and the cooperation ← 39 | 40 with judicial officials and officers are expressions of the regret of sins and proof of repentance.

As the last point, it is necessary to say that according to article 116 of the Islamic Penal Code, repentance is not considered a defense to diya and qiṣāṣ offences because diya (blood money) is an individual claim and, even though murder is a crime that violates both individual and public rights, qiṣāṣ as the main punishment for such an offence addresses mainly the right of victim or his family and has priority.

b)   The possibility of forgiveness

Acceptance of forgiveness is the second element in some forms of punishment that can be regarded as related to the aim of correction. In several cases the Holy Quran has suggested to forgive the offender and the sinful. In this regard, the first and the most important verse of all is verse 40 of Sura al-Shūrā. Although the first sentence of this verse (as set out above), refers to retribution in punishments, it goes on to express that forgiveness has the aim to put matters in order and that, when it is applied, the aim of punishment is satisfied, too.

Some of verses and Hadiths about forgiveness are general and some are specific. In the case of ḥudūd crimes – which are to the most part absolute Rights of Allah – is considered permissible with the approval of the Imam in the case of repentance after confession. In qiṣāṣ and diyāt forgiveness is considered permissible if it is given by the next of kin or the victim because these crimes concern rights of people. In the case of ta‘zīrāt it is considered a ground for exemption from punishment and in some cases a ground that leads to commutation of punishment (Articles 96, 97, 98, 219 of Islamic penal Code).

Forgiveness after repentance has the same effects as repentance, but forgiveness in relation to crimes that concern the rights of people, which is given by the victim, only leads to impunity or the commutation of punishment and does not have the purifying effect of repentance. Repentance is the inner transformation of a sinful person and a sign of his return to God while forgiveness is a sign of the valour of the complainant and rightful owner of the right to qiṣāṣ or diya and cannot have any other effect on the culprit than impunity or commutation of punishment. The importance of forgiveness in Islam shall be explained briefly with a principle in verse 40 of Sura al-Shūrā. As already mentioned, Islamic jurists have generally considered this verse to state that an evil must be compensated by its equal and not ← 40 | 41 → the same evil by a greater one; in other words, they deduce from this verse of the Quran the equality and proportionality of punishment with the crime. However, some Islamic commentators and mystics have interpreted the verse in another way. Islamic mystics do not deduce the principle of retaliation or equality in punishment from this Holy verse, but believe it to state that the reaction to sin and crime is likewise an evil. In other words, when speaking of evil against evil, it means that punishment is an evil pit against crime, which is an evil, too. In this line of thought, punishment should not exist unless in cases where God has stated it. It is for this reason that God after expressing this phrase says “if you forgive the offender, it will be a benefit. Benefit is in forgiveness and rehabilitation, not in punishment.” Likewise, God said about the qiṣāṣ crimes: “He who is pardoned by his brother, let the ensuing be with kindness, and let the payment be with generosity. This is an alleviation from your Lord and mercy. He who transgresses thereafter shall have a painful punishment” (2: 178). Likewise, it is for the same reason that after stating the punishment of qiṣāṣ for murder, God says that it is better to forgive.

For this reason Ibn ‘Arabī, one of the great theorists of theoretical mysticism, sees life in refraining from exercising a qiṣāṣ punishment, not in exercising it. This is because with the former another person – who is a creature of God – is not killed and survives through the forgiveness of the next of kin of the victim.38 The late ‘Allama Ṭabātabā’ī in interpreting verse 40 Sura al-Shūrā has regarded this quotation as the possible reason that the phrase of “Surely, He does not love the harm doers” might imply that the penalty for an evil is an evil, without considering similarity and equality.39

In a Hadith from the Holy Prophet of Islam it has been mentioned that it is upon a person to forgive. Forgiveness only increases the esteem of the person who forgives in the eyes of his fellow humans. It has been quoted from one of the Shiite Imams, that regret over forgiveness is better and easier than regret over punishment.40 Accordingly, Islamic doctrine at the same time as suggesting forgiveness in relation to the rights of people, gives the Imam the authority to forgive an offender against the rights of Allah, after repentance and under the conditions that have been mentioned. ← 41 | 42

The difference is that forgiveness after repentance is actually founded on the rehabilitation of the offender, while forgiveness in relation to the rights of people is founded on the forgiving of the complainant and/or the person entitled to damages that can be a sign of the culprit’s effort to change the situation and the conditions that have been caused by the crime. Obtaining satisfaction and forgiveness of the rightful owner can be a sign of that regret as it may be a ground for escaping from punishment. However, the justification for the fact that forgiveness can prevent executing punishment or lead to commutation in relation to crimes that concern the rights of people is that the offender could rehabilitate himself or rehabilitate the relation between himself and the victim. In both cases, there is no longer any need to apply punishment because of forgiveness. Of course, it is clear that in this case the justifying power of forgiveness for the rehabilitation aspect of punishment is limited only to those cases in which forgiveness is accepted, and not to other cases.

Acceptance of forgiveness is not only a basis for discerning an aim of reform or rehabilitation in Islamic law, but it has also been an important basis for developing the theory of restorative justice and mediation in the Islamic Penal Code of Iran (articles 82-84).

c)   Exile and prison following acceptance of repentance in muḥāraba

Some supporters of rehabilitation as an aim of punishment influenced by quotations of many Islamic jurists such as Imam Muḥammad al-Ghazālī and Mardāwī41 support continuing the exile punishment for the Muḥārib in Shafii and Shia jurisprudences, or the prison punishment in Hanafi jurisprudence until the “repentance of the offender or his rehabilitation” are proved.42 The idea behind this statement is the same as that behind the theory of rehabilitation, and opinions from the field of criminology consider it a necessary condition of rehabilitation and treatment, namely to accept an uncertain condemnation so that the judge is able to continue rehabilitation measures until the rehabilitation of the offender is proved. This line of thought is completely contrary to the principle of legality of punishment that has been accepted in criminal laws.

Of course, criminal law has moderated itself influenced by this criminological point of view by accepting some institutions such as probation and suspension of ← 42 | 43 punishment and the like, but it did not desist from the principle of the legality of punishment. According to article 284 of the Islamic Penal Code, the duration of exile of a muḥārib is to be not less than one year but if he does not repent, the exile is to continue.

Looking at the legal argument more broadly, the availability of different punishments and the discretion of the judge in the selection of one of the punishments for the offence of muḥāraba have been regarded as signs that the target of rehabilitation is accepted in Islamic criminal law. Although this argument applies to specific cases and a general rule cannot be inferred from that, some Shafeis believe that the judge’s discretion in the punishment of a muḥārib is not provided for to determine a proportionate punishment to the crime itself, but to choose the type of punishment that is most suitable to the offender with regard to the rehabilitation aspect.43

In fact, this theory as mentioned in some fatwas of Shiite jurisprudents such as Sheikh Tūsī, is able to tailor the punishment for the crime of muḥāraba to the offender and his conditions. However, it is Imam Al-Haramein Jovini who raises an interesting and delicate idea that has been very progressive for legal thought in the fifth century after the hijra, and that emphasizes that the individualization of penalties and the tailoring of punishment to the offender have a history of approximately 100 years in legal and criminological thought “… if it is assumed that a sanction that is in line with the crime does not prevent the culprit from committing the crime again, punishments such as execution should be not executed as the punishment of that crime and the sanction imposed on this offender are absolutely senseless”.44

However, most people who consider rehabilitation a target for punishment are contemporary thinkers45 and they mostly accept it for ta‘zīr punishments. However, as it was mentioned above, even many Islamic jurists who had considered deterrence as target of religious law punishments regard the rehabilitation of the offender as the purpose.

At the end of this part, some points should be considered. In Islamic jurisprudence the aim of iṣlāḥ (rehabilitation) has not been clarified. If the purpose is to avoid committing crimes again or prevention of crime, how could we ← 43 | 44 distinguish between the consequences of deterrence and rehabilitation? It is possible that the offender does not commit a crime for fear of penalty and not due to regret and rehabilitation. It is possible that their purposes are discipline and re-compatibility with Islamic laws. In this case the framework is rehabilitation of a person’s behavior. Again, in this assumption it is not clear how punishment which imposes only pain and affliction on the perpetrator (except in exceptional cases such as exile that provides an opportunity to think and change) can be a source of rehabilitation. A measure that has developed in modern times under the name of rehabilitation and treatment is imprisonment which has been introduced as the most important and effective method of rehabilitating the offender so that some facilities and opportunities are considered to rehabilitate the culprit. It seems unlikely that rehabilitation of an offender can be possible in case of the types of punishment that have been determined in ḥudūd and ta‘zīr crimes, especially due to the character of the specific, fixed ḥudūd punishments the ta‘zīr punishment of whipping in the traditional thought of Islamic jurisprudence. In this case, deterrence of the offender and others from the commitment of crime will be an acceptable and meaningful target.

Second, qiṣāṣ and execution in ḥudūd make the rehabilitation of an offender impossible, so such an aim is rendered impossible under these punishments. This claim is true in relation to ta‘zīrāt based on the Islamic punishment law. However it can be accepted that in a new form of legislation concerning ta‘zīrāt, the rehabilitation target may be included as one of the targets of punishments. The aim of rehabilitation has been supported in the new Islamic Penal Code of Iran by developing new correctional institutions like community-based punishments, parole, probation, suspension of punishment, the regime of “half release” (open prison) and the application of different security and correctional measures for adult and juvenile offenders.

3.   Ultimate Review

3.1.     Purpose or purposes

Biographische Angaben

Silvia Tellenbach (Band-Herausgeber) Thoralf Hanstein (Band-Herausgeber)

Silvia Tellenbach ist Volljuristin und Islamwissenschaftlerin. Sie wurde mit einer Untersuchung über die Verfassung der Islamischen Republik Iran promoviert und ist Referatsleiterin am Max-Planck-Institut in Freiburg. Thoralf Hanstein studierte Arabistik, Religionswissenschaft und Betriebswirtschaftslehre. Seine Promotion erfolgte zum islamischen Ehe- und Familienrecht in Indonesien. Er ist Fachreferent für Arabistik, Islamwissenschaft und Osmanistik an der Staatsbibliothek zu Berlin.