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Islamic Ideology ( 25 Jun 2015, NewAgeIslam.Com)

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Islamically-Appropriate Punishment for Terrorism

By Roshan, New Age Islam

26 June, 2015

Even as radical Muslim groups claim religious sanction for their acts of terror, other Muslim groups, including noted Islamic scholars, insist that terrorism has no room whatsoever in Islam. In recent years, several noted Islamic scholars have even issued Fatwas condemning terrorism as unambiguously anti-Islamic. Scores of books have been penned by Muslim writers, debunking the misinterpretations of Islam by radical Islamist ideologues to suit their agendas. Yet, so far relatively little attention has been given to studying the Quranic attitude towards terrorism as a punishable crime and the punishment for terrorism—so says ElSayed M.A. Amin, Assistant Professor of Islamic Studies at Al-Azhar University, Cairo, in his recently-published book Reclaiming Jihad—A Quranic Critique of Terrorism. 

Amin makes a bold attempt to anchor in Islamic terms the concept of terrorism as a crime with specific punishments that are capable of deterring its perpetrators. In this regard, he attempts to analyse the Quranic penalties for banditry (Hirabah) within the context of the Quran’s overall concept of crime and punishment. He also reflects on the writings of selected modern Sunni Muslim religious scholars who apply analogical deduction or qiyas in exploring the common elements between Hirabah and terrorism, although the latter has no clearly-defined Quranic punishment.

There is a consensus among classical and modern Sunni exegetes of the Quran, Amin notes, that the following Quranic verses (5:33-34) are the textual sources that discuss Hirabah:

“Those who wage war against God and His Messenger and strive to spread corruption in the land should be punished by death, crucifixion, the amputation of an alternate hand and foot, or banishment from the land: a disgrace for them in this world, and then a terrible punishment in the Hereafter, unless they repent before you overpower them—in that case bear in mind that God is forgiving and merciful.’

Amin relates that among modern exegetes of the Quran there are two main approaches to the relationship between Hirabah and terrorism. Both propose that the Quran sets a punishment for terrorists, but they differ in assigning a category within the Islamic criminal law system under which the punishment for terrorism should fall.

One view is that modern terrorism corresponds in most of its salient features to Hirabah. For those who take this position, the punishment for terrorism is referred to in the text of the Quran (5:33).

The other view is that there is little or no relationship between modern terrorism and Hirabah.

Amin notes that some contemporary Islamic scholars believe that while it is an exaggeration to claim that terrorism and Hirabah are synonymous, yet it is safe to maintain that they have far more similarities than dissimilarities. He writes that the view that there is a relationship between Hirabah and terrorism constitutes the mainstream attitude among the Sunni Muslim Quranic exegetes he has studied. Compared to this main trend, he says, the proponents of the opposing view are fewer in number. ‘Their views,’ he remarks, ‘do not carry weight because they contain so many weaknesses and contradictions.’ Hence, he stresses that although it cannot be claimed that Hirabah and terrorism are identical, the majority view at least is that the punishment for terrorism should be the same for Hirabah.

In building his case, Amin considers how the Quran generally views punishments for crimes in order to discern what the Qur’anically-appropriate punishment for terrorism might be. According to the Quran, he explains, there are two types of punishment: punishment in this world, which is carried out by the ruler of the Muslim state or those authorized by him to execute it, and the punishment that is postponed until the Day of Judgment. The worldly punishment is usually for a crime related to violating the rights of the community or those of an individual, while the ‘postponed’ punishment is for committing a sinful act. Both these punishments are referred to in Quran 5:33.

The lexical meanings of Hirabah, Amin tells us, refer to conflict, disobedience, and fighting. It also refers to disbelief, banditry, striking terror among passers-by and spreading corruption in the land.  Amin suggests a definition of Hirabah that, he says, may be deemed comprehensive and more applicable in today’s context. His definition reflects considerable overlaps with modern-day terrorism:

Hirabah is the premeditated act of a sane and mature individual [or group of individuals] aimed at frightening, robbing, killing or transgressing against non-combatants’ dignity, carried out from a position of power. The targets in Hirabah may be Muslims or non-Muslims, in any setting…”

Although, Amin says, the ‘classical’ exegetes of the Quran did not agree on the common elements in Hirabah, many common elements can be extracted—such as the use of weapons, the act of robbery, the act of terrorizing people, and causing corruption in the land. Terrorizing people and causing corruption are the most important elements of hirabah so far as the link between Hirabah and terrorism is concerned, he notes. Any crime that meets either of these two criteria can, he contends, be considered to be both Hirabah and terrorism. He notes that terrorism and Hirabah are very similar, both involving spreading of corruption in the land through threatening national and international security by killing innocents unjustly, sometimes robbing them of their possessions and spreading fear among them, resulting in destabilizing society. Hence, he contends, there is enough support for the proposition that terrorists should receive the same punishment as that set by the Quran for Muhabirun, those who engage in Hirabah.

The Quran 5:33, Amin notes, prescribe two types of punishments for Muhabirun: one in this world, and one in the Hereafter. A worldly punishment, he says, applies to terrorists (or other criminals) because they have violated human rights. Their punishment in the Hereafter applies because they have violated God’s ordinances. The worldly punishment is executed by those who apply the criminal law of a given country. The punishment that awaits Muhabirun in the Hereafter is Hellfire.

The Quran 5:33 mentions four severe worldly punishments for Muhabirun: execution, crucifixion, amputation of a hand and a foot on opposite sides, or banishment from the land. Quranic exegetes and jurists, Amin says, take two main approaches to these four alternative punishments. The first approach seeks to establish proportionality between the crime and the punishment. The second approach authorizes the Muslim ruler to use his discretion in applying the punishment—or what is called Takhyir.

Amin believes that Takhyir is the most applicable approach for the punishment of terrorism. This, he explains, is because modern terrorism has generated, and will continue to generate, different situations that require flexible handling by the ruler or his deputies, who are responsible for finding suitable punishments in an ever-changing reality. The best choice, Amin says, is to enable the ruler to apply the punishment for terrorism as he sees fit, taking into consideration the nature of each terrorist act, its repercussions, the best way to deter the perpetrators and the benefits and harms to society as a whole.

After discussing the four punishments for the Muhabirun, the Quran (5:34) keeps the way open for sincere repentance. In this context, Amin says, repentance has one of two meanings: that the Muhabirun willingly surrender themselves to the ruler before being apprehended, or that they relinquish all their criminal acts in the presence or absence of the ruler.

In accordance for repentance to be sincere, certain conditions must be fulfilled. Amin refers to the 13th century Muslim scholar Al-Nawawi, who cites several conditions for the validity of repentance. Firstly, the criminal must completely desist from committing crime. Secondly, he must show remorse for what he has done. Thirdly, he must firmly commit himself not to repeat his sinful action. This is required if the act committed infringes on the right of God. If it infringes on the rights of human beings, Al-Nawawi adds a fourth condition—which is, to discharge all personal obligations owed to the offended party, financial or otherwise.

There is debate among scholars, Amin says, with regard to fourth condition for repentance—as to whether the Muhabirun will be exempted from civil liability.  Amin cites the noted Egyptian scholar Rashid Rida, who favours the view that repentance exempts the criminal from all punishments due to Allah whether in this world or in the Hereafter, and who argues that the rights of wronged human beings can be waived only with their approval. However, Amin says, modern terrorist acts perpetrated against societies that cause collective damage are to be assessed by the ruler, who should champion the rights of the victims or their heirs by executing the perpetrators or requiring compensation for damage. Although the claimants or their heirs can either claim their rights from the offender or forgive him, it is not proper, Amin stresses, for them to take the matter into their own hands, because this role should be played by the imam or judge.

Dismissing the misinterpretations of the Quran by Muslim groups that are engaged in fomenting terror, Amin stresses that that the Quran does not in any way condone terrorism and that, in fact, it prescribes the most severe forms of punishment for acts of terror, ranging from execution to exile. Although, Amin says, these punishments might seem ‘barbaric’ at first glance, when the interests of society are considered ‘a case for their deterrent value in preventing suffering and carnage may be made.’ The four worldly punishments for terrorism put forward by the Quran, he says, provide workable mechanisms for those in authority if they want to develop a moral and practical basis to deter terrorism in terms of formal legal mechanisms.