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”. One who commits hirabah would be a mohareb.
Punishment for hirabah
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.
- —Surah al-Ma'ida 5:33–34
According to these verses, the punishments permissible for spreading disorder in the land include:
- Taqtil (تقتيل: execution that serves a severe warning to others, e.g. stoning)
- Taslib (تصليب: crucifixion)
- Amputating limbs from opposite sides
- Nafi (نفى: exile)
A judge can give any of these punishments depending on the severity of the crime and condition of the criminal. These punishments can be prescribed for any crime that can threaten the society at large. Examples of these crimes are highway robbery (traditionally understood as robbery with violence or grand larceny, unlike theft which has a different punishment), rape, and terrorism. Hiraba crimes are still prosecuted in modern Islamic countries that use "sharia law", such as Saudi Arabia and Nigeria.
The inclusion of rape within the purview of hirabah has had support throughout Islamic history.
‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers are one or many.'
It had significant support from the Maliki jurists.
Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba. In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.
In the Hanafi school of law, the term zina is taken to refer to illegal sexual intercourse where rape is distinguished as zina bil jabr to indicate its forced and non-consensual nature whereas fornication and adultery fit zina bil ridha which indicates consent. Though the terminology uses the term zina, nonetheless, they are two categorically different crimes as rape is treated as a tazeer (discretionary) crime by the judge and prosecuted based on circumstantial evidence (medical evidence, any number of witnesses, and other forensic evidence). In other words, very similar to how it is treated in contemporary Western law. It is fornication and adultery by mutual consent, or zina bil ridha, which retain their classical hadd punishments from the Qur'an and sunnah provided there are four witnesses (absent which they too default to tazeer, subject to discretionary punishments such as fining, imprisonment, or lashes). However, gang rape or public rape, such as the sort which occurs during war, is still traditionally considered hirabah as that is more in line with its classical definition as a war crime or crime against civilization and society.
Relation with jihad
Robert D. Crane, a Muslim lawyer who works for the Center for Understanding Islam, has suggested the use of the neologism hirabah to replace jihad when referring to Islamic terrorism. Crane, who asserts that "There is no such thing as Islamic terrorism", argues that to use jihad in English is to mirror the language of those terrorists, while the word hirabah uses the same religious vocabulary to stigmatize them. Jihad is a broad concept which literally means "struggle", while the root word of the neologism, hariba, means "to become angry and enraged" and is associated with the demonization of non-Muslims during the Crusades.
Use in Iran
In Iran, often the charge of hiraba (known in Iran as "moharebeh") is used against people who commit acts against the government. Another related crime is Mofsede-fel-arz, which is "spreading corruption on the earth", which can be applied for political crimes such as treason. Both are often applied against armed robbers, kidnappers, and rapists.
- Crane, Robert D., “Hirabah versus Jihad”, IFRI.org (Islamic Research Foundation International, Inc., 2006)
- Javed Ahmad Ghamidi, Mizan, The Penal Law of Islam, Al-Mawrid
- Webb, Gisella - Windows of Faith: Muslim Women Scholar-Activists in North America p.130
- Muhammad Taqi Usmani - <a href="http://globalwebpost.com/farooqm/study_res/islam/fiqh/usmani_hudud.pdf">The Islamization of Laws in Pakistan: The Case of Hudud Ordinances</a>