Saturday, 8 July 2017

PUNISHMENT FOR HIRABA



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.
[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.

ALTERNATIVES OF THE LAW OF HIRABAH[49]

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.

















REFERENCES
Avner F. Islamic terror : conscious and unconscious motives. Westport, Conn. Praeger Security International. 2008.
Christian C. Legal Aspects of Doing Business in the Middle East.2006
Deflem, Mathieu and Samantha Hauptman. Policing International Terrorism in Globalisation and the Challenge to Criminology. London: Routledge. 2013
Ervand A. History of Modern Iran. Cambridge U.P. 2008.
Halliday F. Islam and the Myth of Confrontation: Religion and Politics in the Middle East. New York: I.B. Tauris. 2003
Mohammed Fadel. Jihad and Hirabah. Unpublished 2002. by permission of the author.
Sherman A. J. Domestic Terrorism in the Islamic Legal Tradition. The Journal of Islamic Law and Culture. 2001
Sherman A. J. Jihad and the Modern World. The Journal of Islamic Law and Culture. 2002




[1] Moore J, The Islamic Terrorism ; An Overview. http://www.pbs.org/wgbh/pages/frontline/shows/target/etc/modern.html , retrieved by 30 November 2013
[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 organizational aid from Iran and Syria.
[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.
[27]  Otman & Karlberg,2007, p. 63
[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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