Hirabah

Hirābah (Arabic: حِرابة‎) is an Arabic word for “piracy”, or “unlawful warfare”. Hirabah comes from the root hariba, which means “to become angry and enraged”. The noun harb (حَرْب, pl. hurub حُروب) means “war” and/or “enemy”.[1] Examples of Hirabah are highway robbery (traditionally understood as robbery with violence or grand larceny, unlike theft which has a different punishment), rape, and terrorism.[2] One who commits hirabah would be a mohareb (or muharebeh). Hiraba crimes are still prosecuted in modern Islamic countries that use "sharia law", such as Saudi Arabia, Nigeria and Iran—where it is defined as "waging war against God" and called mohareb.

Scriptural basis

The verses 33-34 of Surah al-Ma'ida of the Qur'an[Quran 5:33] specify punishment for "those who wage war against Allah and His Prophet and strive to spread disorder in the land":[2]

The punishments of those who wage war against Allah and His Prophet and strive to spread disorder in the land are to execute them in an exemplary way or to crucify them or to amputate their hands and feet from opposite sides or to banish them from the land. Such is their disgrace in this world, and in the Hereafter theirs will be an awful doom save those who repent before you overpower them; you should know that Allah is Oft-Forgiving, Ever Merciful.

The verbal noun form (i.e. hirabah) is frequently used in classical and modern books of Islamic jurisprudence, but neither the word hirabah nor the root verb haraba occurs in the Quran.[3] (Yuhaaribun is the form used in Quran 5:33-4.)

Crime

According to Islamic scholar Khaled Abou El Fadl, Hiraba in the Islamic context literally means "waging war against society" and in Islamic jurisprudence traditionally referred to acts such as killing noncombatants ("the resident and wayfarer"), "assassinations, setting fires, or poisoning water wells," crimes "so serious and repugnant" that their perpetrators were "not to be given quarter or sanctuary anywhere."[4] Another source (Brian Murphy) states, "many Islamic scholars interpret the references to acts that defy universal codes such as intentionally killing civilians during warfare or causing random destruction."[5] According to author Sadakat Kadri, "Most classical jurists" had established "a thousand or so years ago" that Hiraba "referred specifically to banditry in open country: a uniquely destabilizing threat to civil order in a premodern society."[6] (The crime is sometimes lumped together with Mofsed-e-filarz (spreading disorder in the land)[6] which is mentioned alongside waging "war against Allah and His Prophet" in 5:33-34.)

Rape

The inclusion of rape within the purview of hirabah has had support throughout Islamic history.

Despite having some support within Islamic law, the vast majority of jurists have clearly stated that if rape is established by the testimony of four witnesses or by confession then the punishment is the same as fornication.

The medieval jurist ibn abdul al-barr narrated a scholarly consensus on this point.


The medieval Zahiri jurist Ibn Hazm defined hirabah as,

‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers are one or many.'[7]

It had significant support from the Maliki jurists.

Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba. In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.[7]

In the Hanafi school of law, the term zina is taken to refer to illegal sexual intercourse where rape is distinguished as zina bil jabr to indicate its forced and non-consensual nature whereas fornication and adultery fit zina bil ridha which indicates consent. Though the terminology uses the term zina, nonetheless, they are two categorically different crimes as rape is treated as a tazeer (discretionary) crime by the judge and prosecuted based on circumstantial evidence (medical evidence, any number of witnesses, and other forensic evidence). In other words, very similar to how it is treated in contemporary Western law. It is fornication and adultery by mutual consent, or zina bil ridha, which retain their classical hadd punishments from the Qur'an and sunnah provided there are four witnesses (absent which they too default to tazeer, subject to discretionary punishments such as fining, imprisonment, or lashes). However, gang rape or public rape, such as the sort which occurs during war, is still traditionally considered hirabah as that is more in line with its classical definition as a war crime or crime against civilization and society.[8]

Punishment

In keeping with the Quranic verse 5:33 quoted above, "most classical [Islamic] jurists" held that the penalty for moharebeh was crucifixion, cross-amputation (amputation of right hand and left foot) or being banished from the earth.[9][10] A judge can give any of these punishments depending on the severity of the crime and condition of the criminal:

  1. Taqtil (تقتيل: execution that serves a severe warning to others, e.g. stoning)
  2. Taslib (تصليب: crucifixion)
  3. Amputating limbs from opposite sides
  4. Nafi (نفى: exile)

Relation with jihad

Main article: Jihad

Robert D. Crane, a Muslim lawyer who works for the Center for Understanding Islam, has suggested the use of the neologism hirabah to replace jihad when referring to Islamic terrorism. Crane, who asserts that "There is no such thing as Islamic terrorism", argues that to use jihad in English is to mirror the language of those terrorists, while the word hirabah uses the same religious vocabulary to stigmatize them. Jihad is a broad concept which literally means "struggle", while the root word of the neologism, hariba, means "to become angry and enraged" and is associated with the demonization of non-Muslims during the Crusades.[1]

Application

Saudi Arabia

In Saudi Arabia Hirabah is defined as "Armed Robbery". "To prove hirabah, two witnesses must testify or there must be a confession. In addition, an offender can still escape the death penalty if he "repents before he is arrested and willingly places himself in the hands of the authorities."[11][12]

Nigeria

The penalty for hirabah in Nigeria is death if a life is taken during the offense. Additionally, the Zamfara penal code (in effect in the North of Nigeria) provides that if life and property are taken during the commission of hirabah, the penalty is crucifixion.[13][14]

Iran
Main article: moharebeh

In Iran, hiraba is known as "moharebeh" and is translated variously in English-language media as "waging war against God,"[15] "war against God and the state,"[16] "enmity against God."[17] [18] The charge is levied against people who commit acts against the government. Another related crime is Mofsede-fel-arz, which is "spreading corruption on the earth", which can be applied for political crimes such as treason. Both are often applied against armed robbers, kidnappers, and rapists.

See also

References

  1. 1 2 Crane, Robert D., “Hirabah versus Jihad”, IFRI.org (Islamic Research Foundation International, Inc., 2006)
  2. 1 2 Javed Ahmad Ghamidi, Mizan, The Penal Law of Islam, Al-Mawrid
  3. ↑ Amin, ElSayed (2014). Reclaiming Jihad: A Qur'anic Critique of Terrorism. Kube Publishing. p. 133. Retrieved 9 November 2015. Neither the word hirabah nor the root verb haraba occurs in the Quran, although the verbal noun form (i.e. hirabah) is frequently used in classical and modern books of Islamic jurisprudence.
  4. ↑ Abou El Fadl, Khaled, The Great Theft: Wrestling Islam from the Extremists, by Khaled Abou El Fadl, Harper San Francisco, 2005, p.242
  5. ↑ Iran calls political opponents enemies of Islam By BRIAN MURPHY (AP) 9 March 2010| accessed 14 March 2012
  6. 1 2 Kadri, Sadakat (2012). Heaven on Earth: A Journey Through Shari'a Law from the Deserts of Ancient Arabia ... macmillan. p. 219. ISBN 9780099523277. "Exposure from a cross is a punishment that the Qur'an authorizes for anyone who has `[made] war against God and His apostle` or `spread disorder in the land.` ... Most classical jurists had construed their definition with commensurate care, establishing a thousand or so years ago that they referred specifically to banditry in open country: a uniquely destabilizing threat to civil order in a premodern society.
  7. 1 2 Webb, Gisella - Windows of Faith: Muslim Women Scholar-Activists in North America p.130
  8. ↑ Muhammad Taqi Usmani - The Islamization of Laws in Pakistan: The Case of Hudud Ordinances
  9. ↑ Affi, Ahmed; Affi, Hassan (2014). Contemporary Interpretation of Islamic Law. Troubador Publishing Ltd. p. 109. Retrieved 9 November 2015. ... most classical jurists ... believe that the penalty for those who wage on God and His Apostle shall be that they are crucified, be subjected to cross-amputation or be banished from the earth.
  10. ↑ Kadri, Sadakat (2012). Heaven on Earth: A Journey Through Shari'a Law from the Deserts of Ancient Arabia ... macmillan. p. 218. ISBN 9780099523277. Exposure from a cross is a punishment that the Quran authorizes for anyone who has "[made] war against God and His apostle" or "spread disorder in the land." It served historically to humiliate rather than kill, but it could be combined with execution, because the holy book acknowledged those crimes -- uniquely -- as capital offenses.
  11. ↑ PEIFFER, ELIZABETH (2005). "THE DEATH PENALTY IN TRADITIONAL ISLAMIC LAW AND AS INTERPRETED IN SAUDI ARABIA AND NIGERIA". William & Mary Journal of Women and the Law 11 (3): 509. Retrieved 9 November 2015.
  12. ↑ Safia Safwat, Offences and Penalties in Islamic Law, 26 ISLAMIC Q., 1982, p.296
  13. ↑ PEIFFER, ELIZABETH (2005). "THE DEATH PENALTY IN TRADITIONAL ISLAMIC LAW AND AS INTERPRETED IN SAUDI ARABIA AND NIGERIA". William & Mary Journal of Women and the Law 11 (3): 532. Retrieved 9 November 2015.
  14. ↑ Ruud PETERS, ISLAMIC CRIMINAL LAW IN NIGERIA 4 (2003), supra note 33, at 24. T
  15. ↑ Iran, With Opposition Protests Continuing, Executes More Prisoners By NAZILA FATHI, February 1, 2010
  16. ↑ Iran: Kurdish Activist Executed November 10, 2009
  17. ↑ Ashoura protesters at risk of execution in Iran, 8 January 2010
  18. ↑ Trial of 16 Ashura riot detainees begins in Iran| tehrantimes.com |31 January 2011

Further reading

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