Hirabah

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Hirābah (Arabic: حرابة‎‎) 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] In Islamic law, hirabah is a legal category which comprises highway robbery (traditionally understood as robbery with violence or grand larceny, unlike theft which has a different punishment), rape, and terrorism.[2]

Muharabah (also spelled muharebeh) is a term which is treated as interchangeable with hirabah in Arabic lexicons.[3] The related term mohareb (محارب) (perpetrator of moharebeh) has been translated by English language Iranian media as "enemy of God".[4][5][6] In English-language media sources Moharebeh in Iran has been translated variously as "waging war against God,"[7] "war against God and the state,"[8] "enmity against God."[9] [10] It is a capital crime in the Islamic Republic of Iran.

Scriptural basis[edit]

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

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

The verbal noun form (i.e. hirabah) is frequently used in classical and modern books of Islamic jurisprudence, but neither the word hirabah nor the root verb haraba occurs in the Quran.[11] (Yuhaaribun is the form used in Quran 5:33-4.)

The original meanings of the root word hiraba are to despoil someones wealth or property, and also fighting or committing sinful act. The Quran "refers to both meanings" in verses 2:279 and 5:33-34.[12]

The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter; [Quran 5:33]

Crime[edit]

According to Islamic scholar Khaled Abou El Fadl, Hiraba in the Islamic context literally means "waging war against society" and in Islamic jurisprudence traditionally referred to acts such as killing noncombatants ("the resident and wayfarer"), "assassinations, setting fires, or poisoning water wells," crimes "so serious and repugnant" that their perpetrators were "not to be given quarter or sanctuary anywhere."[13] Another source (Brian Murphy) states, "many Islamic scholars interpret the references to acts that defy universal codes such as intentionally killing civilians during warfare or causing random destruction."[14] According to author Sadakat Kadri, "Most classical jurists" had established "a thousand or so years ago" that Hiraba "referred specifically to banditry in open country: a uniquely destabilizing threat to civil order in a premodern society."[15] The crime is sometimes lumped together with fasad fi-l-ard (spreading disorder in the land)[15] which is mentioned alongside waging "war against Allah and His Prophet" in 5:33-34.

Rape[edit]

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

The medieval Zahiri jurist Ibn Hazm defined hirabah as,

‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers are one or many.'[16]

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.[16]

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.[17]

Punishment[edit]

In keeping with the Quranic verse 5:33 quoted above, "most classical [Islamic] jurists" held that the penalty for moharebeh was crucifixion (تصليب), cross-amputation (amputation of right hand and left foot) or being banished from the earth (نفى).[18][19]

According to Sadakat Kadri the crimes of waging `war against God and His apostle` (Moharebeh) and spreading `disorder in the land` (fasad fi-l-ard) were originally punished either by exile or some combination of double amputation, beheading, and crucifixion (what Kadri calls "islam's equivalent of the hanging, drawing and quartering that medieval Europeans inflicted on traitors"). This was the only capital penalty permitted rulers by the Quran (in the case of murder the killer's fate was in the hands of the victim's next of kin not the judge[20] during the early years of Islam "when enemies of the faith and political rebels often looked frighteningly similar" the crime had broader application including apostasy from Islam but was "gradually narrowed" to apply only to "highway robbery in the open county."[21]

The choice of crucifixion and its method is subject to "complex and contested rules" in classical jurisprudence.[22] Most scholars required crucifixion for highway robbery combined with murder, while others allowed execution by other methods.[22] The main methods of crucifixion are:

  • Exposure of the culprit's body after execution by another method, ascribed to "most scholars"[22][23] and in particular to Ibn Hanbal and Al-Shafi'i;[24] or Hanbalis and Shafi'is.[25]
  • Crucifying the culprit alive, then executing him with a lance thrust or another method, ascribed to Malikis, most Hanafis and most Twelver Shi'is;[22] the majority of the Malikis;[23] Malik, Abu Hanifa, and al-Awza'i;[24] or Malikis, Hanafis, and Shafi'is.[25]
  • Crucifying the culprit alive and sparing his life if he survives for three days, ascribed to Shiites.[23]

Most scholars limit the period of crucifixion to three days.[22]

Relation with jihad[edit]

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

In modern legal systems[edit]

Saudi Arabia

In Saudi Arabia Hirabah is defined as "Armed Robbery". "To prove hirabah, two witnesses must testify or there must be a confession. In addition, an offender can still escape the death penalty if he "repents before he is arrested and willingly places himself in the hands of the authorities."[26][27]

Nigeria

The penalty for hirabah in Nigeria is death if a life is taken during the offense. Additionally, the Zamfara penal code (in effect in the North of Nigeria) provides that if life and property are taken during the commission of hirabah, the penalty is crucifixion.[28][29]

Iran

In Iran, hiraba is known as "moharebeh" and is translated variously in English-language media as "waging war against God,"[30] "war against God and the state,"[31] "enmity against God."[9] [32] The charge is levied against people who commit acts against the government. Another related crime is Mofsede-fel-arz, which is "spreading corruption on the earth", which can be applied for political crimes such as treason. Both are often applied against armed robbers, kidnappers, and rapists.

Islamic Republic of Iran[edit]

The term is widely used by Iran's Islamic Judiciary, citing Sharia law, and is "usually used against those who take up arms against the state,"[9] and usually carries the death penalty. The term is used in articles 183 to 196 of Iran's criminal law. The cases that fall under this term typically require involvement in armed criminal activities, e.g: taking up arms for terrorism and disruption of public safety (article 183), membership in groups conducting armed uprising (article 186), supporting groups planning to overthrow the government by force using weapons and explosives (article 187), accepting critical posts a Coup d'etat government. Articles 190-191 state that judge can give a person convicted under one of these crimes capital punishment. Peaceful and unarmed opposition to government does not fall under this term. Typical convicts under the term are members of armed ethnic separatist groups, members of armed drug trafficking groups, and people involved in armed robbery. [33]

According to Human Rights Watch, "at least nine people" convicted of moharebeh by Islamic Revolutionary Courts for "their alleged ties to armed opposition groups" were executed in 2014.[34]

Controversies[edit]

Between the end of early days of the 1979 Islamic Revolution, when scores of former officials of the Shah and others were arrested and executed for moharebeh,[35] and the beginning of the 2009 election protests, executions for moharebeh were rare, and usually applied against members of armed opposition/terrorist groups, Kurdish separatists, or common criminals.[14]

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 death sentence 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,[36] but had his sentence reduced to 11 years in prison after an appeal. Student demonstrator Mohammad Amin Valian was sentenced to death for Moharebeh in 2009, a sentence overturned by an appeals court in March 2010.[37] 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." [14] 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.[38]

In a February 2011 televised address before a group of clerics in the city of Qom, hard-liner cleric Ahmad Khatami accused reformist presidential candidates Mir Hossein Mousavi and Mahdi Karroubi of Moharebeh as "leaders of sedition."[39] However this was not followed up with any charges against the two by the Iranian judiciary.

Abdolfattah Soltani, an Iranian attorney and member of Center for Defense of Human Rights has argued that under Articles 86 and 89 of the Islamic Punitive Laws of the Islamic Republic of Iran, the accused must "either have engaged in armed confrontation or he must have been a supporter or a member of an armed group and must have committed effective [deliberate] actions on behalf of that organization.", conditions that have not been met by defendants such as Valian, who threw stones at militia members.[40]

According to at least one journalist (Brian Murphy), the Iranian Islamic regime's use of moharebeh against 2009 election protesters has "opened deep rifts between ruling clerics and Islamic scholars questioning how an idea about safeguarding Muslims can be transformed into a tool to punish political protesters." Ayatollah Mostafa Mohaghegh Damad has reportedly sought to "rally clerics to oppose the use of moharebeh charges against political protesters."[14]

See also[edit]

References[edit]

  1. ^ a b Crane, Robert D., “Hirabah versus Jihad”, IFRI.org (Islamic Research Foundation International, Inc., 2006)
  2. ^ a b Javed Ahmad Ghamidi, Mizan, The Penal Law of Islam, Al-Mawrid
  3. ^ Amin, ElSayed (2014). Reclaiming Jihad: A Qur'anic Critique of Terrorism. Kube Publishing. p. 133. Retrieved 9 November 2015. 
  4. ^ Daragahi, Borzou (January 29, 2010). "Iran executes 2 alleged government opponents". Los Angeles Times. Retrieved January 29, 2010. 
  5. ^ google search of Tehran Times
  6. ^ Maritime Space: Maritime Zones and Maritime Delimitation
  7. ^ Iran, With Opposition Protests Continuing, Executes More Prisoners By NAZILA FATHI, February 1, 2010
  8. ^ Iran: Kurdish Activist Executed November 10, 2009
  9. ^ a b c Ashoura protesters at risk of execution in Iran, 8 January 2010
  10. ^ Trial of 16 Ashura riot detainees begins in Iran| tehrantimes.com |31 January 2011
  11. ^ Amin, ElSayed (2014). Reclaiming Jihad: A Qur'anic Critique of Terrorism. Kube Publishing. p. 133. Retrieved 9 November 2015. Neither the word hirabah nor the root verb haraba occurs in the Quran, although the verbal noun form (i.e. hirabah) is frequently used in classical and modern books of Islamic jurisprudence. 
  12. ^ Amin, ElSayed (2014). Reclaiming Jihad: A Qur'anic Critique of Terrorism. Kube Publishing. p. 132-3. Retrieved 9 November 2015. 
  13. ^ Abou El Fadl, Khaled, The Great Theft: Wrestling Islam from the Extremists, by Khaled Abou El Fadl, Harper San Francisco, 2005, p.242
  14. ^ a b c d Iran calls political opponents enemies of Islam By BRIAN MURPHY (AP) 9 March 2010| accessed 14 March 2012
  15. ^ a b Kadri, Sadakat (2012). Heaven on Earth: A Journey Through Shari'a Law from the Deserts of Ancient Arabia ... macmillan. p. 219. ISBN 9780099523277. "Exposure from a cross is a punishment that the Qur'an authorizes for anyone who has `[made] war against God and His apostle` or `spread disorder in the land.` ... Most classical jurists had construed their definition with commensurate care, establishing a thousand or so years ago that they referred specifically to banditry in open country: a uniquely destabilizing threat to civil order in a premodern society. 
  16. ^ a b Webb, Gisella - Windows of Faith: Muslim Women Scholar-Activists in North America p.130
  17. ^ Muhammad Taqi Usmani - The Islamization of Laws in Pakistan: The Case of Hudud Ordinances
  18. ^ Affi, Ahmed; Affi, Hassan (2014). Contemporary Interpretation of Islamic Law. Troubador Publishing Ltd. p. 109. Retrieved 9 November 2015. ... most classical jurists ... believe that the penalty for those who wage on God and His Apostle shall be that they are crucified, be subjected to cross-amputation or be banished from the earth. 
  19. ^ Kadri, Sadakat (2012). Heaven on Earth: A Journey Through Shari'a Law from the Deserts of Ancient Arabia ... macmillan. p. 218. ISBN 9780099523277. Exposure from a cross is a punishment that the Quran authorizes for anyone who has "[made] war against God and His apostle" or "spread disorder in the land." It served historically to humiliate rather than kill, but it could be combined with execution, because the holy book acknowledged those crimes -- uniquely -- as capital offenses. 
  20. ^ Kadri 2012, p. 219.
  21. ^ Kadri 2012, p. 241.
  22. ^ a b c d e Vogel, F.E. (2012). "Ṣalb". In P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs. Encyclopaedia of Islam (2nd ed.). Brill. (Subscription required (help)). 
  23. ^ a b c Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press. pp. 37–38. 
  24. ^ a b "تصليب". الموسوعة الفقهية (Encyclopedia of Fiqh) (in Arabic). 12. وزارة الأوقاف والشئون الإسلامية في دولة الكويت. 1988. 
  25. ^ a b "حرابة". الموسوعة الفقهية (Encyclopedia of Fiqh) (in Arabic). 17. وزارة الأوقاف والشئون الإسلامية في دولة الكويت. 1988. 
  26. ^ PEIFFER, ELIZABETH (2005). "THE DEATH PENALTY IN TRADITIONAL ISLAMIC LAW AND AS INTERPRETED IN SAUDI ARABIA AND NIGERIA". William & Mary Journal of Women and the Law. 11 (3): 509. Retrieved 9 November 2015. 
  27. ^ Safia Safwat, Offences and Penalties in Islamic Law, 26 ISLAMIC Q., 1982, p.296
  28. ^ PEIFFER, ELIZABETH (2005). "THE DEATH PENALTY IN TRADITIONAL ISLAMIC LAW AND AS INTERPRETED IN SAUDI ARABIA AND NIGERIA". William & Mary Journal of Women and the Law. 11 (3): 532. Retrieved 9 November 2015. 
  29. ^ Ruud PETERS, ISLAMIC CRIMINAL LAW IN NIGERIA 4 (2003), supra note 33, at 24. T
  30. ^ Iran, With Opposition Protests Continuing, Executes More Prisoners By NAZILA FATHI, February 1, 2010
  31. ^ Iran: Kurdish Activist Executed November 10, 2009
  32. ^ Trial of 16 Ashura riot detainees begins in Iran| tehrantimes.com |31 January 2011
  33. ^ Iranian Criminal Law (Persian)
  34. ^ "World Report 2015: Iran". Human Rights Watch. Retrieved 9 November 2015. 
  35. ^ More commonly theses offenders were sentenced to death for committing a related violation of Islamic law, mofsed-e-filarz, or "spreading corruption on earth".
  36. ^ Arbitrary arrest/ fear for safety/possible prisoners of conscience/medical concern/torture and ill-treatment, amnesty.org, 10 August 2007
  37. ^ Iran court upholds death for opposition activist By ALI AKBAR DAREINI (AP) 3 March 2010, accessed 4 March 2011
  38. ^ "Iran: Stop the execution of Abdolreza Ghanbari". labourstart.org. 2012. 
  39. ^ Iran opposition leader ready to 'pay any price', by ALI AKBAR DAREINI, AP, 16 February 2011, accessed 4 March 2011
  40. ^ Abdolfattah Soltani: “According to law and Sharia, throwing stones or breaking windows do not constitute ‘moharebeh’”| ICHRI| 9 February 2010

Further reading[edit]