LAW OF HIRABAH : ITS
EFFECTIVENES TO TACKLE TERRORIST IN THE MODERN WORLD
FACULTY OF LAW
NATIONAL UNIVERSITY OF
MALAYSIA
DECEMBER 2013
This assignment is submitted due to the assignment
Question number 3
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LAW OF AL-HIRABAH : THE EFFECTIVENESS TO TACKLE THE
TERRORIST IN MODERN WORLD
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].
Hirabah is a part of Hudud crimes . In Islamic law or Sharia, hudud usually
refers to the class of punishments that are fixed for certain crimes that are
considered to be "claims of God." They include theft, fornication and
adultery (zina), consumption of alcohol or other intoxicants, and apostasy (see
apostasy in Islam).[2]One
who commits hirabah would be a mohareb. According to Hussain in Islamic Law and Society Al-hirabah
refers to robbery with violence. There are differences among the jurists as to
whether the offense can only relate to robbery on the highway or whether armed
holdups in urban areas are also included. The penalty varies according to
whether the robber has killed or injured the victim or simply robbed or
threaten to rob him or her. The prescribed penalties are death (if the robber
has killed but has not got away with the stolen property); crucifixion (where
the robber has killed and got away with stolen property); cutting off the hand
and foot on opposite sides (robbery with violence where the robber does not
kill the victim); (and) exile (where the robber frightens the victim but does
not kill or get away with the stolen property)[3]
According to Al-Awwa[4],
the Quran prescribes this sentence for hiraba:
“The
only reward ... will be that they will be killed or crucified, or have their
hands and feet on alternate sides cut off, or they will be expelled out of the
land.”
Schacht suggests that the punishment for the
highway robbery variant of hiraba (kat’ al-tarik) is as follows: If only
plunder has happened in the value of the loot (is below a certain value), the
right hand and the left foot are cut off. If only homicide has happened,
execution with the sword
[1] Crane, Robert D, Hirabah versus Jihad, IFRI.org (Islamic
Research Foundation International, Inc., 2006)
[2] Schirazi A, The Constitution of Iran : politics and the state in
the Islamic Republic, London, New York, 1997, p.223-2244
[3] Hussain, J, Islamic Law and Society, Sydney: Federation
Press. 1999, p. 135
[4] Al-Awwa, Muhammad Salim, The Basis of Islamic Penal Legislation,
The Islamic Criminal Justice System, Rome: Oceana Publications Inc, 1982, p.
138
takes place. If
both plunder and homicide have happened, execution by crucifixion alive takes
place. These punishments are awarded to all accomplices, whatever their
individual acts.[1]
As Islamic Law
scholar Khaled Abou El Fadl of UCLA explains in his highly acclaimed new book,
"The Great Theft: Wrestling Islam from the Extremists," these
radicals "entirely ignore the Qur'anic teaching that the act of destroying
or spreading ruin on this earth is one of the gravest sins possible -- fasad fi
al-ard, which means to corrupt the earth by destroying the beauty of creation.
This is considered an ultimate act of blasphemy against God. Those who corrupt
the earth by destroying lives, property and nature are designated as mufsiduun
(corruptors and evildoers) who, in effect, wage war against God by dismantling
the very fabric of existence... the crime is called Hirabah (waging war against
society).[2]
As confirmed by
Professor El Fadl, it is the ancient word Hirabah, which the Islamic
Jurisprudence (the Fiqh) defines as a forbidden "war against society"
-- or what in modern parlance would be called "genocidal terrorism"
or "crimes against humanity."[3]
In his seminal
article on Hirabah in the Fall 2001 issue of Muslim World, the renowned
University of Michigan scholar of Islam, Prof. Abdul Hakim (a.k.a., Sherman
Jackson), long ago confirmed this interpretation with remarkable clarity as
follows: In the end, however, Hirabah assumes its place as an effective
super-category hovering above the entire criminal law as a possible remedy to
be pressed into service for the more sensational, heinous or terrifying
manifestations of these and other crimes. In this capacity, Hirabah appears,
again, to parallel the function of terrorism as an American legal category. Its
function is not so much to define specific crimes but to provide a mechanism
for heightening the scrutiny and/or level of pursuit and prosecution in certain
cases of actual or potential public violence[4].In
sum, we may conclude that it is terror, or the spreading of fear and
helplessness, that lies at the heart of Hirabah. From this perspective, Hirabah
speaks to the same basic issue as does terrorism in American law. As mentioned
earlier, however, Hirabah actually goes beyond the FBI definition of terrorism,
inasmuch as Hirabah covers both directed and coincidental spreading of fear...
Hirabah, as it turns out, [once was and should be seen again as] the most
severely punished crime in Islam, carrying mandatory criminal sanctions.[5] And it is clear,
in his extensive review of all of the classic legal sources from all of the
schools of Islamic law, that the very impersonality of Hirabah, of terrorism,
in which there is invariably no personal relationship between the terrorist and
his victim, is what makes it more criminal than homicide... and in the eyes of
the classical jurists, it is why the terrorist deserves to be sentenced to
death regardless of the status of the victim, be he or she Muslim or
non-Muslim.[6] The Qur'an
commands strict punishment for those who spread disorder in the land. As it is
in the Qur'an:
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.[7]
[1] Schacht J, An
Introduction to Islamic Law, Oxford: Clarendon Press, 1964.
[2] http://www.truespeak.org/contents/view/alqaedassatanicwar,
retrieved from 30 November 2013
[3] Prof El Hadi, Hirabah in Islamic Jurisprudence in The Word Is
"Hirabah" - Forbidden War
Against Society, http://www.truespeak.org/contents/view/alqaedassatanicwar,
retrieved from 30 November 2013
[4] Prof Abdul Hakim, Muslim World , Hirabah.
[5] Ibid
[6] Ibid at 9
[7] Surah Al-Ma’ida 5:33-34
ELEMENTS IN HIRABAH
Taking the nature of crimes of modern time Mohammad Shabbir[1] seems
to have amalgamated the definitions of the Maliki school and others and
provided his own definition. According to him hirabah is committed if the
following two main elements are present in a crime:
1)The act of terrorising people for the purpose of robbery or other
purposes, and
2)The act of causing “destruction” in society.
Shabbir said, “Virtually the term ’destruction’ is a comprehensive one
and covers all acts in the process of committing hirabah, including robbery and
use of weapon with the intention of terrorizing people psychologically and
physically.” .In other words, according to him, destruction for the purpose of
terrorising is an element of hirabah[2].
Use of weapons:Hanafi, Shafi-i and Hanbali schools: weapon is
essential. “weapon” may include a stick, rock, whip, sword and explosives. Maliki
school said weapons not required. Mere physical force or strength is enough.
Act of robbery:Majority view[3] said
that it is required. Minority view (Maliki) said that its not required. Mere
act of terrorising is enough to constitute hirabah. But the majority admit the
act of terrorism as an element when they consider the punishment of exile,
which is meted out for terrorising people without committing robbery.
Act of terrorism.Majority view[4]said
that it is not a necessary element. Minority view (Maliki)said that it is necessary
element. They do not count any other elements as other schools do, for example,
weapon, the site of hirabah and act of
robbery.But from punishment view point terrorism is one of the elements of
hirabah. As terrorisation is involved in any kind of act of hirabah, such as robbery, looting, killing, bombing,
it should be considered to be the central element of hirabah. Indeed,
terrorization is “a war against Allaah and His Messenger” and “an attempt to
spread mischief in the world” as it is against the humanity and human society.
(Shabbir)
Act of destruction:This has been suggested and added as an element by
Mohammad Shabbir. According to him, “ the term ‘destruction’[5] is a
comprehensive one and covers all connected act in the process of committing
hirabah”. According to him, hirabah has two elements: Act of terrorising to
materialise robbery or not;Act of causing destruction.Accordingly, smuggling
and drug trafficking constitute hirabah.
[1]Shabbir M, Criminal Law Justice in Islam.
[2] Ibid at 12
[3] Ibid
[4]Ibid
[5] Ibid
TERRORISM IN ISLAM
Islamic terrorism
is a form of religious terrorism[1]
committed by Muslims to achieve varying political ends in the name of religion.
Islamic terrorism has occurred in the Middle East, Africa, Australia, Europe,
Southeast Asia, South Asia, South America, and North America. Islamic terrorist
organizations have been known to engage in tactics including suicide attacks,
hijackings, kidnapping and recruiting new members through the Internet[2].
The colonial era,
failed post-colonial attempts at state formation, and the creation of Israel
engendered a series of Marxist and anti-Western transformations and movements
throughout the Arab and Islamic world. The growth of these nationalist and
revolutionary movements, along with their view that terrorism could be
effective in reaching political goals, generated the first phase of modern
international terrorism.
In the late 1960s
Palestinian secular movements such as Al Fatah and the Popular Front for the
Liberation of Palestine (PFLP)[3]
began to target civilians outside the immediate arena of conflict. Following
Israel's 1967 defeat of Arab forces, Palestinian leaders realized that the Arab
world was unable to militarily confront Israel. At the same time, lessons drawn
from revolutionary movements in Latin America, North Africa, Southeast Asia as
well as during the Jewish struggle against Britain in Palestine, saw the
Palestinians move away from classic guerrilla, typically rural-based, warfare
toward urban terrorism. Radical Palestinians took advantage of modern
communication and transportation systems to internationalize their struggle.
They launched a series of hijackings, kidnappings, bombings, and shootings,
culminating in the kidnapping and subsequent deaths of Israeli athletes during
the 1972 Munich Olympic games.
These Palestinian
groups became a model for numerous secular militants, and offered lessons for
subsequent ethnic and religious movements. Palestinians created an extensive
transnational extremist network -- tied into which were various state sponsors
such as the Soviet Union, certain Arab states, as well as traditional criminal
organizations. By the end of the 1970s, the Palestinian secular network was a
major channel for the spread of terrorist techniques worldwide[4].
[1] Avner F,Islamic terror :
conscious and unconscious motives, Westport, Conn, Praeger Security
International, 2008, p. 4.
[2] Ibid
[3] The PLO was founded in 1964 as a Palestinian nationalist umbrella
organization committed to the creation of an independent Palestinian state.
After the 1967 Arab-Israeli war, militia groups composing the PLO vied for
control, with Al Fatah -- led by Yasser Arafat -- becoming dominant. Al Fatah
joined the PLO in 1968 and won the leadership role in 1969. In 1969 Arafat
assumed the position of PLO Executive Committee chairman, a position he still
holds. Al Fatah essentially became the PLO, with other groups' influence on PLO
actions increasingly marginalized. Al Fatah and other PLO components were
pushed out of Jordan following clashes with Jordanian forces in 1970-71. The
Israeli invasion of Lebanon in 1982 led to the group's dispersal to several
Middle Eastern countries, including Tunisia, Yemen, Algeria, Iraq, and others.
The PLO maintains several military and intelligence wings that have carried out
terrorist attacks, including Force 17 and the Western Sector. Two of its
leaders, Abu Jihad and Abu Iyad, were assassinated in recent years. In the
1960s and the 1970s, Al Fatah offered training to a wide range of European,
Middle Eastern, Asian, and African terrorist and insurgent groups and carried
out numerous acts of international terrorism in Western Europe and the Middle
East in the early-to-middle 1970s. Arafat signed the Declaration of Principles
(DOP) with Israel in 1993 -- the Oslo Accords -- and renounced terrorism and
violence. The organization fragmented in the early 1980s, but remained the
leading Palestinian political organization. Following the 1993 Oslo Accords,
the PLO -- read Al Fatah -- leadership assumed control of the nascent
Palestinian National Authority (PNA).Moore J. The Islamic Terrorism : An Overview.
[4] Political Islam, as opposed to fundamentalist or neo-fundamentalist
Islam, posits a worldview that can deal with and selectively integrate
modernity. In contrast, fundamentalist Islam calls for a return to an
ontological form of Islam that rejects modernity; groups such as Al Qaeda and
the Egyptian Islamic Jihad are representative of fundamentalist Islam.
While these
secular Palestinians dominated the scene during the 1970s, religious movements
also grew. The failure of Arab nationalism in the 1967 war resulted in the
strengthening of both progressive and extremist Islamic movements. In the
Middle East, Islamic movements increasingly came into opposition with secular
nationalism, providing an alternative source of social welfare and education in
the vacuum left by the lack of government-led development -- a key example is
The Muslim Brotherhood. Islamic groups were supported by anti-nationalist
conservative regimes, such as Saudi Arabia, to counter the expansion of
nationalist ideology. Yet political Islam, [1]
more open to progressive change, was seen as a threat to conservative Arab
regimes and thus support for more fundamentalist -- and extremist -- groups
occurred to combat both nationalist and political Islamist movements.
The year 1979 was
a turning point in international terrorism. Throughout the Arab world and the
West, the Iranian Islamic revolution sparked fears of a wave of revolutionary
Shia Islam. Meanwhile, the Soviet invasion of Afghanistan and the subsequent
anti-Soviet mujahedeen war, lasting from 1979 to 1989, stimulated the rise and
expansion of terrorist groups. Indeed, the growth of a post-jihad pool of
well-trained, battle-hardened militants is a key trend in contemporary
international terrorism and insurgency-related violence. Volunteers from
various parts of the Islamic world fought in Afghanistan, supported by
conservative countries such as Saudi Arabia. In Yemen, for instance, the
Riyadh-backed Islamic Front was established to provide financial, logistical,
and training support for Yemeni volunteers. So called "Arab-Afghans"
have -- and are -- using their experience to support local insurgencies in
North Africa, Kashmir, Chechnya, China, Bosnia, and the Philippines.
In the West,
attention was focused on state sponsorship, specifically the Iranian-backed and
Syrian-supported Hezbollah; state sponsors' use of secular Palestinian groups
was also of concern.[2]
Hezbollah [3]pioneered
the use of suicide bombers in the Middle East, and was linked to the 1983
bombing and subsequent deaths of 241 U.S. marines in Beirut, Lebanon, as well
as multiple kidnappings of U.S. and Western civilians and government officials.
Hezbollah remains a key trainer of secular, Shia, and Sunni movements. As
revealed during the investigation into the 1988 bombing of Pan Am Flight 103,
Libyan intelligence officers were allegedly involved with the Palestinian Front
for the Liberation of Palestine -- General Command (PFLP-GC). Iraq and Syria
were heavily involved in supporting various terrorist groups, with Baghdad
using the Abu Nidal Organization on several occasions. State sponsors used
terrorist groups to attack Israeli as well as Western interests, in addition to
domestic and regional opponents. It should be noted that the American policy of
listing state sponsors was heavily politicized, and did not include several
countries -- both allies and opponents of Washington -- that, under U.S.
government definitions, were guilty of supporting or using terrorism.
The disintegration
of post-Cold War states, and the Cold War legacy of a world awash in advanced
conventional weapons and know-how, has assisted the proliferation of terrorism
worldwide. Vacuums of stability created by conflict and absence of governance
in areas such as the Balkans, Afghanistan, Colombia, and certain African
countries offer ready made areas for terrorist training and recruitment
activity, while smuggling and drug trafficking routes are often exploited by
terrorists to support operations worldwide. With the increasing ease of
transnational transportation and communication, the continued willingness of
states such as Iran and Iraq to provide support, and dehumanizing ideologies
that enable mass casualty attacks, the lethal potential of terrorist violence
has reached new heights.
The region of
Afghanistan -- it is not a country in the conventional sense -- has,
particularly since the 1989 Soviet withdrawal, emerged as a terrorist training
ground. Pakistan, struggling to balance its needs for political-economic reform
with a domestic religious agenda, provides assistance to terrorist groups both
in Afghanistan and Kashmir while acting as a further transit area between the
Middle East and South Asia
Since their
emergence in 1994, the Pakistani-supported Taliban militia in Afghanistan has
assumed several characteristics traditionally associated with state-sponsors of
terrorism, providing logistical support, travel documentation, and training
facilities. Although radical groups such as the Egyptian Islamic Jihad, Osama
bin Laden's Al Qaeda, and Kashmiri militants were in Afghanistan prior to the
Taliban, the spread of Taliban control has seen Afghan-based terrorism evolve
into a relatively coordinated, widespread activity focused on sustaining and
developing terrorist capabilities. Since the mid-1990s, Pakistani-backed
terrorist groups fighting in Kashmir have increasingly used training camps
inside Taliban-controlled areas. At the same time, members of these groups, as
well as thousands of youths from Pakistan's Northwest Frontier Province (NWFP),
have fought with the Taliban against opposition forces. This activity has seen
the rise of extremism in parts of Pakistan neighboring Afghanistan, further
complicating the ability of Islamabad to exert control over militants.
Moreover, the intermixing of Pakistani movements with the Taliban and their
Arab-Afghan allies has seen ties between these groups strengthen.
Since 1989 the increasing
willingness of religious extremists to strike targets outside immediate country
or regional areas underscores the global nature of contemporary terrorism. The
1993 bombing of the World Trade Center, and the Sept. 11, 2001, attacks on the
World Trade Center and Pentagon, are representative of this trend.[4]
However , the
Muslim do not agree with all of these behavior and terrorism. Muslim popular
opinion on the subject of attacks on civilians by Islamist groups varies. Fred
Halliday, a British academic specialist on the Middle East, argues that most
Muslims consider these acts to be egregious violations of Islam's laws.[5]
Muslims living in the West denounce the September 11th attacks against United
States, while Hezbollah contends that their rocket attacks against Israeli
civilian targets are defensive Jihad by a legitimate resistance movement rather
than terrorism.[6]
Subsequently, however, on Osama Bin Laden's death, many Muslims in UK came out
on streets in support of Osama, announcing him as an Islamic hero and condemned
the role of US and west in killing him. The protest against Bin Laden’s death
was organised by controversial preacher Anjem Choudary – who praised both 7/7
and the September 11 attacks.[7]
[8]Statistics
compiled by the United States government's Counterterrorism Center present a
complicated picture: of known and specified terrorist incidents from the
beginning of 2004 through the first quarter of 2005, slightly more than half of
the fatalities were attributed to Islamic extremists but a majority of over-all
incidents were considered of either "unknown/unspecified" or a
secular political nature. The vast majority of the
"unknown/unspecified" terrorism fatalities did however happen in
Islamic regions such as Iraq and Afghanistan, or in regions where Islam is
otherwise involved in conflicts such as the West Bank, the Gaza Strip, southern
Thailand and Kashmir.
HISTORY LAW OF HIRABAH IN IRAN
The law of hirabah
is widely used by Iran , and the term Moharebeh (محاربة) (also muharebeh ) is
the title of a crime in Islamic law. Mohareb (محارب) refers to the perpetrator
of the crime[9]
Moharebeh has been translated in English-language media sources variously as
"waging war against God,"[10]
"war against God and the state,"[11]
"enmity against God."[12]
Mohareb has been translated by English language Iranian media as "enemy of
God".[13]
It is a capital crime in the Islamic Republic of Iran. and it is "usually
used against those who take up arms against the state,"[14]
and usually the law carries the death penalty. Between the early days of the
1979 Islamic Revolution, when scores of former officials of the Shah and others
were arrested and executed for moharebeh, and the 2009 election protests,
executions for moharebeh were rare, and usually applied against members of
armed opposition/terrorist groups, Kurdish separatists, or common criminals[15]
In recent years,
Iranians executed after being charged with Moharebeh include Mohammad-Reza
Ali-Zamani (2010), Arash Rahmanipour (2010), and Ehsan Fatahian (2009). Others
accused, charged or convicted of Moharebeh include Adnan Hassanpour, whose
sentenced to death for Moharebeh was overturned in 2008 on appeal, and Zeynab
Jalalian, whose death sentence was commuted to life in prison. Shia cleric
Hossein Kazemeyni Boroujerdi, known for preaching that religion is separate
from politics, was reportedly charged with Moharebeh in 2007 by Iran's Special
Court for the Clergy[16]
but had his sentence reduced to 11 years in prison after appeal. Student
demonstrator Mohammad Amin Valian was sentenced to death for Moharebeh in 2009,
a sentence overturned by an appeals court in March 2010.[17]
In March 2010, the 76-year-old former dean of Tehran University, Mohammad
Maleki, was charged with it for alleged "contact with unspecified foreign
groups and working to undermine the Islamic system." [18]
(He was later convicted of lesser charges.) Abdolreza Ghanbari, a university
lecturer living in Pakdasht, was arrested in the wake of 2009 Ashura protests
and convicted in 2010 of “Moharebeh through ties with hostile groups against
the regime”. A request for pardon of the death sentence was rejected on
February 28, 2012[19]
In a February 2011 televised address before a group of clerics in the city of
Qom, cleric Ahmad Khatami, senior member of the Assembly of Experts, accused
reformist presidential candidates Mir Hossein Mousavi and Mahdi Karroubi of
Moharebeh as "leaders of sedition."[20]
HOW THE LAW OF HIRABAH IS IMPELEMENTED ON TERRORIST IN
CURRENT ISLAMIC COUNTRY
Tackling
terrorism, and dealing with terrorists are two separate issues. On the latter
our leadership is obscuring the matter, thus delaying the immediate actions. If
the terrorists are not controlled, this could result in grave consequences. But
if this object is somehow achieved (which is in fact not possible without iron
hand), even then, the eradication of terrorism still needs some other drastic
measures. Otherwise it can reoccur with more deadly consequences. This
situation can be compared with the efforts of those who were advised to draw a
certain amount of water from the well in which a dog was drowned. But they only
drew water, not the dead dog. No doubt facing the terrorists and defeating them
is the matter at hand but addressing the source that is producing such a
mindset is another issue that cannot be left unattended as well[21]
The Islamic law[22]
apply in Iran[23],Saudi
Arabia[24]Nigeria[25],Afghanistan[26],Libya[27],Yemen[28]
and Sudan[29].
In Saudi Arabia , those
guilty of hirabah are sentenced to death, and have been executed even if the
victim was not actually killed, differing from most scholars' interpretations
of the proportional nature of punishment[30].
Saudi Arabian law provides that if the armed robbers give themselves up and
repent, their repentance will nullify the hadd punishment and they will be
punished only in accordance with qisas as to the rights of the victim[31]
In Nigeria , The
hadd punishment for hirabah is set forth as:
Whoever
acting alone or in conjunction with others in order to
seize
property or to commit an offence or for any other reason
voluntarily
causes or attempts to cause to any person death or
hurt
or wrongful restraint or fear of instant death or of instant
hurt
or of instant wrongful restraint in circumstances that
renders
such person helpless or incapable of defending himself,
is
said to commit the offence of hirabah.
The penalty for
hirabah is death if a life is taken during the offense.[32]Additionally,
the Zamfara penal code[33]
provides that if life and property are taken during the commission of hirabah,
the penalty is crucifixion.[34]The
Maliki school(since Nigeria follows Maliki School) provides that a person who
has committed hirabah will not be punished in this way if he gives himself up
to the authorities.[35]
This provision, however, is not contained in any of the Nigerian codes.[36]
In Afghanistan ,
the law seems ambiguous . There is no capital punishment or had punishment on
the terrorist , however the capital punishment appear as legal in Afghanistan
but the law imposed on murder, apostasy, homosexuality, rape, terrorism, drug
trafficking, and adultery[37]
In Yemen ,
although the hudud law imposed in the country , however the law of hirabah
seems too vague . On 29 December 2009, Yemen's Parliament took three crucial
steps to strengthen the country's capacity to fight terrorism by adopting a
convention for countering the financing of terrorism and new laws against
money-laundering and the financing of terrorism. "Starving terrorists of
funding is crucial for the success of counter-terrorism operations - it's like
cutting off their oxygen," said Cecilia Ruthström-Ruin, Chief of the UNODC
Terrorism Prevention Branch.[38]
The legal system
in Sudan is based on English common law and Islamic sharia. Islamic law was
implemented in all of the north as of September 1983, by President Jafar
An-Numeri, this applied to all residents of the Sudan regardless of their
religion. The 2005 Naivasha Agreement, ending the civil war between north and
south Sudan, established some protections for non-Muslims in Khartoum.
International Court of Justice jurisdiction is accepted, though with
reservations. Under the terms of the Naivasha Agreement, Islamic law did not
apply in the south[39]Since
the secession of South Sudan there is some uncertainty as to whether Sharia law
will now apply to the non-Muslim minorities present in Sudan, especially
because of contradictory statements by al-Bashir on the matter . Hence the law
of hirabah also seems ambiguous here.
HOW THE EFFECTIVENESS OF THE LAW OF AL-HIRABAH ON TERRORIST
IN THE MODERN WORLD
The law of
Al-Hirabah has a very good enforcement in most of Islamic countries such as
Iran , Saudi Arabia and Nigeria . However due to the biggest misunderstanding
between the term “jihad” and “terrorist” thus the implementation of the law of
Al-Hirabah towards the biggest Islamic terrorist such as Al-Qaeda and Hezbullah
are seem too weak whilst they are going strong . They us Allah and Jihad as a
apart of their survival . Calling terrorism “jihad” may be more vogue than
referring to it as “hirabah”, but we risk legitimizing the likes of Osama bin
Laden, Ayman al-Zawahiri and Abdullah Ahmed Abdullah in the Islamic world if we
refer to their terror as jihad. It’s murder, terrorism, apostasy, heresy and
hirabah. This is how the war on terror can be won; Muslims want to stop the
assault on their religion as much as the rest of the world do.
Killing innocent
civilians in the name of Allah is not Jihad and Muslims know it. The defense of human rights through the
use of physical forces is known in Islamic law as the jihad al saghrir, the
lesser jihad. This presupposes a continuing effort by the individuals involved
to purify themselves in a much greater effort or jihad, the jihad al akbar.
Both of these two forms of jihad are augmented by a third, the jihad al kabir
or greater jihad. This third jihad is the only one mentioned in the Qur’an,
specifically in Surah al Furqan 25:52:
and
struggle with it [divine revelation] in a great jihad.[40]
This third jihad
is the intellectual struggle to apply the message of the Qur’an in intellectual
discourse as a means to shape humanity’s future, so that in the twenty-first
century after Jesus Christ, ‘alayhi al salam, there will be no more Dar al Harb
or lands dominated by the enemies of Islam. In the center of this intellectual
arena is the battle to define the meaning of jihad and of its opposite, which
Islamic scholars have defined as hirabah. Over two months
ago, with little or no comment or praise—either then or later—from the Bush
Administration, the West Europeans, the media, the foreign policy experts or
the Muslim-American community, the traditionally soft-on-terrorism Saudi
Arabian government did a rather remarkable thing.
Its harsh
condemnation of the May 12, 2002 suicide bombings in Riyadh contained
unprecedented Islamic religious frames of reference—charging al Qaeda
terrorists with not only a secular and ideological crime but with a heinous and
mortal sin against Allah, as well. According to Crown Prince Abdullah bin Abdul
Aziz: “This is because the Saudi people will not permit a deviant few to shed
the blood of the innocent which God almighty, in his infinite wisdom and
justice has sanctified.”The Saudi chief-of-state went on to proclaim: “As
revealed in the Holy Qur’an, ‘He who kills a resident living in peace among you
will never breathe the air of Heaven.’ ” And he concluded: “These messages,
which do not require any interpretation, provide clear evidence that the fate
of these murderers is damnation on earth and the fury of Hell in the
thereafter.”By repeatedly injecting the element of Hellfire into the picture,
the Saudis were at least for the moment rejecting the pseudo-religious,
Wahhabi-supported language of so-called “Jihadi martyrdom.” Mindlessly parroted by all too many Westerners
and Muslims alike, this is the patently false mantra which paints a highly
seductive picture of so-called Jihad (Holy War) by so-called mujahiddin (holy
warriors) and shuhada or shahiddin (martyrs), supposedly on their way to
Paradise.On its face, the Saudi assault on this al Qaeda scam implies that if
Osama bin Laden and his suicidal killers are not waging a truly holy “Jihad,”
they must be waging unholy war, instead. Indeed, according to the Crown Prince,
it is warfare so unholy and so evil as to be leading its fomenters into eternal
Hellfire—the Islamic term for which is Jahannam[41].
Now that the
Saudis have belatedly begun the process of demonizing The al Qaeda Blasphemy in
Islamic religious terms, we can ill afford to stand by in ignorance and in silence—or
to continue relying only on Western secular terms which mean little or nothing
to “the Arab Street.[42]”
The Saudi
authorities' attempts to eliminate al-Qaeda, and thereby remove its potential
attraction to the kingdom's disaffected young men, have been greatly hindered
by developments beyond the country's borders.The absence of a strong central
government in Yemen has given al-Qaeda, despite frequent US drone attacks, the
freedom it has been looking for.Furthermore, jihadist leaders are unequivocal
about their aims.Earlier this year, an Islamist website called on Muslims to
"do everything possible to strengthen the jihadist front in Yemen as it
serves as a source of back-up and reinforcement for operations in the Land of
the Two Mosques [Saudi Arabia].[43]"
Some Muslims are
heeding the call. Just last week, the Yemeni authorities arrested two Egyptians
who had entered the country illegally, en route to Saudi Arabia.The Saudi
government's concern is that the war in Syria and rising sectarian tension in
Iraq will provide yet more recruiting and training opportunities for al-Qaeda,
creating more threats to the kingdom[44].
Hence , the
effectiveness of the law of hirabah being weaken by the Islamic country itself
that support the terrorism that they believe with bona fide , they are jihadist . Other sources of income in 2001
included the heroin trade and donations from supporters in Kuwait, Saudi Arabia
and other Islamic countries.[45]A
WikiLeaks released memo from the United States Secretary of State sent in 2009
asserted that the primary source of funding of Sunni terrorist groups worldwide
was Saudi Arabia.[46]
Seems the
effectiveness of the law of hirabah in most Islamic countries are weak , so
there’s a lot of speculation on the law of hirabah .Is the law of hirabah really
imposed on the terrorist ? Is they any enforcement on the law of hirabah in
regard of the terrorist ? Thus there’s a lot of secondhand help from other
countries to prevent the terrorism , whilst the Islamic country also
campaigning on the terrorism.
IS
THE LAW OF HIRABAH APPLICABLE ON NON-MUSLIM TERRORIST ?
Hence , is law of
hirabah is really applicable on non-muslim terrorist due to their elements
involved in proving Hirabah ? It depends on the country itself to implement the
law of hirabah in their country itself , and hence the law of hirabah can be
applicable to non-muslim terrorist since the elements are comprehensively
applicable to all people . The authority in Al-Quran provide that:
Indeed
I want you to obtain [thereby] my sin and your sin so you will be among the
companions of the Fire. And that is the recompense of wrongdoers.[47]
Indeed,
We have revealed to you, [O Muhammad], the Book in truth so you may judge
between the people by that which Allah has shown you. And do not be for the
deceitful an advocate.[48]
Based on these two
verses in Al-Quran , it shows to us that theres nothing wrong to apply the
Islamic law on the non-muslim if the law is for the good sake of the citizen .
Besides , the elements on the islamic law , especially law of hirabah itself
meet the requirement of nowadays to tackle the terrorism . But however , we
have to remember that even in the most islamist country do not strictly
implement the law of hirabah . And it is really pathetic to say that the law of
hirabah being neglected , and thus in relation to that , they have their own
secular way by having these alternatives.
Help from other countries
.British Prime Minister David Cameron pledged on Sunday, June 30 , 2013[50]
to work with Pakistan to fight terrorism and try to bring peace to Afghanistan,
while also offering to help with security at sporting events possibly enabling
foreign teams to visit.In a brief visit to Pakistan on Sunday, June 30 , 2013 ,
Cameron became the first head of government to hold face-to-face talks with
Prime Minister Nawaz Sharif since his election in May, a victory Cameron said
could translate into a “golden moment” for Pakistan.Cameron met Afghan
President Hamid Karzai in Kabul on Saturday, June 29 , 2013 to try to
reinvigorate stalled peace talks there, but his diplomatic demarche fell flat
after Karzai warned that doing a deal with the Taliban could split his country.[51]
Methods Of Law And Justice. This
is the time for the country to imposed strict law to the terrorist. The Russian
State Duma[52]
voted in favor of strict new anti-terrorism legislation. The increases prison
time for setting up a terrorist entity from 15 to 20 years in prison, and
individuals convicted for participation in a terrorist group could now spend up
to 10 years in prison. Additionally, the new bill allows the government to
collect damages from the relatives of the perpetrator of a terrorist attack.
According to lawmaker Nikolai Kovalyov, this preventative measure will create a
deterrent effect for terrorists who would not want their families to face
financial responsibility for their terrorist acts. The bill is expected to be
approved in the Federation Council and President Vladimir Putin [official
website, in Russian is likely to sign the bill into law[53].
In Islamabad,Pakistan Prime Minister Muhammad Nawaz Sharif has said the
Government is making strict and effective laws to deal with the issue of
terrorists‚ target killers and extortionists.He was talking to Information Minister
Pervaiz Rashid who called on him here on Friday, October 11 ,2013.The Prime
Minister said amendment in anti-terrorism laws is the first step to remove
flaws in the existing laws to control heinous crime.Talking to media, Minister
for Information and Broadcasting Pervaiz Rashid said that en effective anti
terrorism bill will soon be introduced to curb the menace of terrorism[54].However
the law of hirabah is still the best answer to prevent the terrorism but it
rely on the implementation of the country itself
One central command. In
North America and other continents, for a threatened or completed terrorist
attack, the Incident Command System (ICS) is apt to be invoked to control the
various services that may need to be involved in the response. ICS has varied
levels of escalation, such as might be needed for multiple incidents in a given
area (e.g., the 2005 bombings in London or the 2004 Madrid train bombings, or
all the way to a National Response Plan invocation if national-level resources
are needed. National response, for example, might be needed for a nuclear,
biological, radiological, or large chemical attack[55].
Besides , NATO
is developing new, cutting-edge technologies and capabilities to protect troops
and civilians against terrorist attacks.The aim of the DAT POW is to prevent
non-conventional attacks, such as suicide attacks with improvised explosive
device or mitigate other challenges such as attacks on critical infrastructure.As
the threat is urgent, most projects launched under the DAT POW are focused on
finding solutions that can be fielded in the short term. The programme meets
critical military requirements and addresses Alliance shortfalls. The DAT POW
development is driven by the latest political guidance, provided by the 2010
Strategic concept and the 2010 Lisbon summit declaration. It is influenced by
NATO’s new counter terrorism policy guidelines endorsed at the 2012 Chicago
summit[56].
Whilst the function of United Nation is really helpful on fighting terrorism. Eighteen universal instruments (fourteen
instruments and four amendments) against international terrorism have been
elaborated within the framework of the United Nations system relating to
specific terrorist activities. Member States, through the General Assembly,
have been increasingly coordinating their counter-terrorism efforts and
continuing their legal norm-setting work. The Security Council has also been
active in countering terrorism through resolutions and by establishing several
subsidiary bodies. At the same time a number of programmes, offices and
agencies of the United Nations system have been engaged in specific activities
against terrorism, further assisting Member States in their counter-terrorism
efforts.To consolidate and enhance these activities, Member States in September
2006 embarked upon a new phase in their counter-terrorism efforts by agreeing
on a global strategy to counter terrorism. The Strategy marks the first time
that all Member States of the United Nations have agreed to a common strategic
and operational framework to fight terrorism. The Strategy forms a basis for a
concrete plan of action: to address the conditions conducive to the spread of
terrorism; to prevent and combat terrorism; to take measures to build state
capacity to fight terrorism; to strengthen the role of the United Nations in
combating terrorism; and to ensure the respect of human rights while countering
terrorism. The Strategy builds on the unique consensus achieved by world
leaders at their 2005 September Summit to condemn terrorism in all its forms
and manifestations[57].
APPLICABILITY
IN MALAYSIA
In Malaysia ,
there are not many cases involving terrorist. But however there are so many
debates on the applicability of islamic law , which involving hirabah as one of
the Islamic law. The
Malaysian Bar[58]
views with concern the recent political posturing in reviving the possibility
of implementation of Islamic law(involving hirabah), the class of crimes
prescribed under Islamic law, in Malaysia.The law, as it stands, does not allow
for the implementation of hudud by the States.
The Federal Constitution only allows the States to enact laws creating
offences by persons professing the religion of Islam, against the precepts of
Islam, and the respective punishments for such offences.With respect to the
nature of such offences, these offences cannot include matters within the
legislative powers of the Federal Government.
Therefore, there can be no replication of any of the offences within any
Federal law with a different degree of punishment only for Muslims. Further,
these laws, if enacted, must themselves be consistent with fundamental
liberties guaranteed to all citizens, including Muslims, under Part II[59]
of the Federal Constitution. As to the scope of the punishments for offences
against the precepts of Islam, the extent must be conferred by Federal
law. The Syariah Courts (Criminal
Jurisdiction) Act 1965 provides that the Syariah Courts in all States shall not
exercise jurisdiction “in respect of any offence punishable with imprisonment
for a term exceeding three years or with any fine exceeding five thousand
ringgit or with whipping exceeding six strokes or with any combination
thereof.”[60] Hence, the penalties that Syariah Courts can
mete out are clearly circumscribed, and do not include the punishments provided
under Islamic law.
CONCLUSION
Throughout Islamic
history, Muslim jurists showed themselves to be keenly interested in protecting
the community from those within its midst who seek to bring it harm through
violence and terror. Early on they would turn to Qur'an 5:33-34[61]
to provide them with the means to develop legal constructs that served this
interest. The law of hirabah was the result of this effort. Far from a stagnant
construct, however, hirabah turned out to be an extremely malleable category,
capable of assuming many different forms under many different circumstances.
Indeed, the many features and different applications of the law of hirabah show
themselves to have been just as indebted to historical experience and the
creative acumen of jurists as they were to dictates of scripture. At bottom,
however, the primary concern remained essentially the same as that governing
discussions of terrorism in American law: protecting the community against
publicly directed violence. Even the modern revisionist approaches would not
completely abandon this interest. Viewed from this perspective, we can see a clear
cognate relationship between terrorism in modern era and hirabah in Islam[62].
Such recognition should encourage a more informed comparison between Islamic
and the world legal approaches. At the very least, such an exploration could
deepen our confidence in the ability of the two systems to speak to and
understand each other. At most, it might point the way to possible avenues of
cooperation in a mutually shared interest in a safer, better world.
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[1] Moore J, The Islamic Terrorism ; An Overview. http://www.pbs.org/wgbh/pages/frontline/shows/target/etc/modern.html
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[2] Ibid
[3] Radical Shia group formed in 1982 in Lebanon. Strongly anti-Western
and anti-Israeli. Closely allied with, and often directed by, Iran but may have
conducted operations that were not approved by Tehran. Known or suspected to
have been involved in numerous anti-U.S. terrorist attacks, including the
suicide truck bombing of the U.S. Embassy and U.S. Marine barracks in Beirut in
October 1983 and the U.S. Embassy annex in Beirut in September 1984. Elements
of the group were responsible for the kidnapping and detention of U.S. and
other Western hostages in Lebanon. The group also attacked the Israeli Embassy
in Argentina in 1992 and is a suspect in the 1994 bombing of the Israeli
cultural center in Buenos Aires. Operates in the Bekaa Valley, the southern
suburbs of Beirut, and southern Lebanon. Has established cells in Europe,
Africa, South America, North America, and Asia. Receives substantial amounts of
financial, training, weapons, explosives, political, diplomatic, and
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[4] Ibid at 30
[5] Halliday F, Islam and the Myth of Confrontation: Religion and
Politics in the Middle East, New York: I.B, Tauris. 2003, p.107
[6] Almashriq H, Statement of
purpose, March 20, 1998, Retrieved on 30 November 2013.
[7] Almashriq H, Hizbullah:
Views and Concepts, June 20, 1997, Retrieved on 30 November 2013.
[8] "Extremists hold
Osama bin Laden 'funeral' at US Embassy in London",Metro.co.uk, May 7,
2011. Retrieved 30 November 2013.
[9] Fathi N, Iran With
Opposition Protests Continuing, Executes More Prisoners, February 1, 2010
[10] Ibid
[11] Iran: Kurdish Activist
Executed, November 10, 2009, Retrieved on 30 November 2013
[12] Ashoura protesters at
risk of execution in Iran, 8 January 2010,Retrieved on 30 November 2013
[13] Borzou D, Iran executes 2 alleged government opponents, Los
Angeles Times, Retrieved on 30 November, 2013.
[14] Ibid at 33
[15] More commonly theses offenders were sentenced to death for
committing a related violation of Islamic law, mofsed-e-filarz, or
"spreading corruption on earth"
[16] Arbitrary arrest/ fear for
safety/possible prisoners of conscience/medical concern/torture and
ill-treatment, amnesty.org, 10 August 2007
[17] Dareini A.A, Iran court upholds death for opposition activist,
3 March 2010, Retrieved on 30 November 2013
[18] Iran: Stop the execution
of Abdolreza Ghanbari, labourstart.org, Retrieve on 30 November 2013.
[19]Dareini A.A, Iran opposition leader ready to 'pay any price,
16 February 2011,Retrieved on 30 November 20131
[20] Soltani, A,According to
law and Sharia, throwing stones or breaking windows do not constitute
‘moharebeh. 2010.
[21] Khan O.U, How To Tackle Terrorism In Pakistan. http://www.themuslimtimes.org/2013/10/countries/pakistan/how-to-tackle-terrorism-in-pakistan,
Retrieved from 30 November 2013
[22] Sharia law(Islamic law) deals with many topics addressed by secular
law, including crime, politics, and economics, as well as personal matters such
as sexual intercourse, hygiene, diet, prayer, and fasting. Though
interpretations of sharia vary between cultures, in its strictest definition it
is considered the infallible law of God—as opposed to the human interpretation
of the laws (fiqh).This including the had punishment that also being impose on
the hirabah
[23] Ervand A, History of
Modern Iran,Cambridge U.P, 2008, p.177
[24] Christian C, Legal Aspects of Doing Business in the Middle East,
p. 265, Retrieved on 1 December 2013.
[25] This law may be cited as the Shari'ah Penal Code Law, 2000 and it
shall come into operation on 27th day of January, 2000. Establishment of
Shari'ah Penal Code in the State of Nigeria
[26] "The Constitution of
Afghanistan" (PDF). Kabul, Afghanistan: Supreme Court Afghanistan, January
3, 2004, Retrieved 1 December 2013.
[28] Human rights situation in Yemen,European Parliament, 2009,
Retrieved on 1 December 2013.
[29] Metz, Helen C, Sudan: a Country Study, Washington: GPO for
the Library of Congress, 1991.
[30] Defying World Trends,supra note 122.
[31] A-Mutrak,supra note 125, at 456.
[32] PETERS, supra note 33, at 23. This wording is taken from the
Zarnfara Penal Code,
but the penal codes of six other
states (Bauchi, Jigawa, Kano, Kebbi, Sokoto, and Yobe)
have adopted the Zamfara Penal Code
almost exactly. See id. at 13-14
[33] This law may be cited as the Shari'ah Penal Code Law, 2000 and it
shall come into operation on 27th day of January, 2000. Establishment of
Shari'ah Penal Code in the State of Nigeria
[34] The code does not define crucifixion, and the meaning is in dispute
under
Maliki doctrine - some authorities
say that the convict must be crucified before death,
others provide that the convict's
body must be exposed after his death. Id.
[35] Ibid
[36] Ibid
[37] "Afghanistan
executes 15 prisoners by gunfire", The Associated Press,October 9,
2007, Retrieved on 1 December 2013
[38]UNODC, Helping Yemen to respond to terrorism http://www.unodc.org/unodc/en/frontpage/2010/January/helping-yemen-to-respond-to-terrorism.html
, Retrieved 1 December 2013
[39] “Sharia law to be tightened if Sudan splits – president",BBC
News, 19 December 2010, Retrieved on 1 December 2013.
[40] Surah Al-Furqan 25:52
[41] Greenfield D, Saudis Announce They’re Going To Arm Al-Qaeda,
http://www.frontpagemag.com/2013/dgreenfield/saudis-openly-announcing-that-theyre-going-to-arm-al-qaeda/,
retrieved from 30 November 2013
[42] Ibid
[43] Saudi Arabia’s Al-Qaeda Challenge by Gerald Butt , http://www.bbc.co.uk/news/world-middle-east-19517476
, retrieved from 30 November 2013
[44] Ibid
[45] "Today's jihadists: educated, wealthy and bent on killing?",
3rd July 2012 Canada.com, Retrieved on 30 November 2013
[46] Who is Bin Laden? ,retrieved
on 30 November 2013
[47] Surah Al-Maidah 5:29
[48] Surah An-Nisa 4:105
[49] This is to show on how the law of hirabah itself cannot be imposed
well in most Islamic country
[50]“Britain, Pakistan to tackle terrorism”by
Reuters , http://www.iol.co.za/news/world/britain-pakistan-to-tackle-terrorism-1.1539667#.UprLm8QW11Y
, retrieved on 1 December 2013
[51] Ibid
[52] Pravo report in Russian
[53] “Russia lower house approves strict new anti-terrorism
legislation” by Julie Diesher, http://jurist.org/paperchase/2013/10/russia-lower-house-approves-strict-new-anti-terrorism-legislation.php,
retrieved on 1 December 2013
[54] “Government determined to make strict laws against terrorists:
PM” by Dunya News, http://dunyanews.tv/index.php/en/Pakistan/195931-Govt-determined-to-make-strict-laws-against-terror
, retrieved on 1 December 2013
[55] Deflem, Mathieu and Samantha Hauptman, "Policing
International Terrorism." in Globalisation and the Challenge to Criminology,
edited by Francis Pakes, London: Routledge, 2013, p.64-72
[56] "The official Emblem
of NATO",NATO,Retrieved on 1 December 2013.
[57]United Nation Action on Terrorism ,http://www.un.org/en/terrorism/ ,retrieved
on 1 December 2013
[58] Malaysian Bar is the lawyers’ bar in Malaysia
[59] Part 2 of Federal Constitution of Malaysia
[60] Syariah Courts(Criminal Jurisdiction) Act 1965
[61] Surah Al-Ma’ida 5:33-34
[62] Jackson, S.A,Domestic Terrorism in Islamic Legal Tradition.
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