Religious violence

At the outset, it should be emphasized here that the term ‘religious violence’ is used to refer to the phenomenon or movement known in Islamic historical, legal and theological literatures as the khawarij.

Obviously, it is also used to describe any contemporary acts that fall under the same description. The term ‘religious violence’, insightfully suggested by the editor of this volume in the title of the chapter, or more precisely ‘religious terrorism’, as used in the remaining part of this chapter, is purposefully used here to refer to the khawarij, partly because it exactly matches the definitions included in the classical Islamic legal literature. Furthermore, the distinction between the phenomenon of terrorism treated in Islamic law under the title of hiraba, discussed above, and the specific form of religious terrorism treated under the title of khawarij is deliberately continued here to prove the lack of a systematic or developed treatment of the law of the khawarij. That is particularly because despite the fact that the khawarij share most of the elements of the crime of terrorism discussed above, there is no definite punishment specified for the khawarij in the Islamic penal code. The main reason for the lack of this punishment is that the khawarij emerged after the demise of the Prophet and hence since this phenomenon was not treated in the Islamic scriptures, jurists unjustifiably and regrettably did not develop the punishment for acts of religious terror. However, the Hadith literature includes many reports in which the Prophet predicted, and/or described the characteristics of, the khawarij.

The Islamic historical and legal literature disagrees over the origin of the emergence of the khawarij. It is bizarrely suggested that the khawarij goes back to a certain incident in which 'Abdullah b. Dhi al-Khuwaisiri al-Tamimi objected to the Prophet’s distribution of some property.

This sort of peaceful objection by al-Tamimi is wrongly considered as an act of khu- rUj, literally going out, i.e. against the ruler/s. Certainly, this is rather a figurative description rather than an act that would make al-Tamimi fall under the technical legal categorization of khawarij. Apart from this opinion, while a minority maintain that the khawarij dates back to the group who assassinated the third Caliph 'Uthman b. 'Affan (r. 644—656) because of his alleged nepotism, the majority’s opinion is that the origin of the emergence of the khawarij goes back to the violent groups who assassinated the fourth Caliph 'Ali b. Abi Talib (r. 656— 661) because they rejected his resort to tahkim (arbitration) with Muawiyah b. Abi Sufyan (d. 680) in the battle of Siffin (657).¹⁰ They saw in the resort to arbitration a violation of the Qur’an since only the Qur’an should be the source of tahkim. Moreover, anyone who rules in accordance with anything except what is revealed by God, i.e. the Qur'an, is an infidel, the khawarij advocated.¹¹ The jurists’ discussion of this underdeveloped, yet important, law focuses largely on the historical narrations and descriptions of this historical phenomenon rather than developing the rules and regulations that govern how they are to be punished under Islamic law. The Islamic literature describes the khawarij as follows.

1) Pious and devout worshippers who usually recite the Qur'an and spend an excessive amount of time on their prayers and fasting, but are ignorant of Islam and its teachings or, at best — as anticipated in one report attributed to the Prophet — have a shallow or a narrow understanding of Islam and the Qur'an. They believe that any Muslim who commits a major sin — including the Companions of the Prophet — is a kafir (unbeliever) and that those who commit a major sin will remain indefinitely in Hellfire. Hence, takfr (excommunication) of Muslims who commit a major sin has since then become one of their main characteristics and a rationale for their division of Muslims into believers and kuffar (unbelievers).

In other words, as pointed out by Ibn Taymiyya (d. 728/1328), the khawarij see themselves as representing dar al-Islam (house of Islam) while the rest of the Muslims representing the dar al-harb (house of war). Their reading of the Qur'anic text (64:2) ‘It is He Who created you, then some of you are unbelievers and some of you are believers’ leads them mistakenly to this twofold division which results in excommunicating those who do not share their beliefs. In other words, in the opinion of the khawarij, any Muslim who does not follow their creed is an infidel.¹² The above description certainly was not used to refer to armed rebels or more obviously to the culprits of hiraba, whom the legal literature explicitly presents as criminal terrorists whose motivations were predominantly pecuniary. The Islamic position on the khawarij is that they are still Muslims and cannot be solely classed on the basis of their unorthodox and heinous acts as infidels, pure and simple. This position was recently emphasized by the current Shaykh Al-Azhar Ahmed Al-Tayyib who rejects labelling members of the Islamic State in Iraq and Syria (ISIS) as kuffar (unbelievers). In other words, regardless of their criminal and heinous terrorist acts, the current Shaykh Al-Azhar rejects excommunicating ISIS terrorists from the religion of Islam as long as they believe in its core tenets. However, in a sense, the khawarij may be described, so far, as radical religious fanatics or fundamentalists. Moreover, they developed a literature of their own, an ideology and a creed and as a consequence in Islamic theology they are studied and categorized as a heretical sect that deviated from the true path of Islam. In addition to their strong religious-based message, certain historical, political and social factors contributed to the emergence of the khawarij as many historians and sociologists attempted to prove.

2) Apart from their intellectual and ideological framework, and more importantly here, the classical Muslim jurists identify the khawarij as a group that indiscriminately, and sometime massively, kill and commit terrorist acts against peaceful civilian Muslims including women, children and the aged.

Early Islamic historical literature shows that the khawarij committed widespread terrorist acts and intimidation of the public. For example, the khawarij ‘especially the Azariqa, and the Qaramita, used methods that are difficult to differentiate from common acts of banditry, these groups often slaughtered indiscriminately, raped, and usurped property’.¹³ This leads to the important question about their justifications, since committing these major sins and such use of terror-oriented methods undoubtedly contravenes any religious aim and undermines any lofty political goals. Bearing in mind that the khawarij considered anyone who commits a major sin an infidel, the fact that the khawarij themselves — of course not all of them — committed a number of major sins and heinous acts such as the indiscriminate murder of civilian Muslims, taking money from Muslims by force, as well as rape, is an inexplicable paradox. Recalling that the use of force by armed rebels is strictly regulated must be used exclusively against the state authorities and must be limited to achieving the objective of their armed rebellion, the sort of indiscriminate slaughter of peaceful civilians committed by the khawarij, let alone rape and usurpation of victims’ property, is exactly the same as the acts punishable under the crime of hirdba/terrorism.

3) They allow the usurpation of the property of Muslims and/or taking it as spoils of the war, yastahilldn amwdl al-muslimdn. In war against non-Muslims, or what may be described in modern terminology as international war, enemy property becomes spoils of war, but in inter-Muslim fighting taking the booty of fellow Muslims is not permitted. For example, according to the law of armed rebellion, the state is not allowed to confiscate the property of the rebels and even any weapons confiscated from the rebels during the armed rebellion must be returned to the rebels after the cessation of hostilities. Moreover, ‘the jurists of the four schools unanimously agree that it is not permitted for the state army to use weapons confiscated from the rebels to fight against them, except in cases of dire military necessity’.¹⁴ This proves beyond doubt the inviolability of the property of Muslims even during acts of hostilities.

Therefore, the unorthodox beliefs and horrible atrocities committed by the khawarij in such an early period in Islamic history have left an everlasting traumatic and legal impact on the discussion of the subject of inter-Muslim fighting. In other words, recalling the memories of the shedding of blood among Muslims, including particularly the indiscriminate acts of terror committed at the hands of the khawarij in early Islamic history, led the majority of classical Muslim jurists to prefer that Muslims endure injustice and tyranny rather than resort to the use of armed rebellion that may cause the shedding of blood among Muslims.

Therefore, these characteristics warrant the classification of this specific form or use of force as ‘religious violence’, or ‘religious terrorism’, because the use of indiscriminate acts of terrorism, including against peaceful civilians, is motivated by, or grounded in, certain religious interpretations. For the purpose of this chapter and in light of the above description, as rightly asked by Khaled Abou El Fadl, ‘the material legal question is: What is the status of groups such as the khawarij whose system of thought justifies the terrorizing and victimizing of people when they are most unable to resist?’¹⁵ The following brief discussion will approach this question by examining, first, the rules regulating the use of force against the khawarij and, second, the Islamic law that will be applied against them if they are brought for prosecution in an Islamic court. It is interesting to mention here that the fourth Caliph Ali b. Abi Talib (r. 656—661) declared a wise and very tolerant policy towards the khawarij that is reflected in the following three principles: First, they are not prevented from attending the mosques, i.e. the non-khawarij mosques because they apparently built mosques for the followers of their ideology. Second, they will receive a share of the booty as long as they fight alongside the rest of the Muslims.

Obviously, if the khawarij fight under the leadership of the fourth Caliph 'Ali b. Abi Talib, this signifies acknowledgement of, and obedience to, his legitimate authority. Third, they will not be fought unless they initiate the fighting. This means that despite their heretical and unorthodox beliefs, the khawarij are to be treated just like the rest of the Muslims as long as they do not initiate violence. In other words, as pointed out by al-Shafi'i, unorthodox groups such as khawarij cannot be prevented from their religious or political rights as long as they were not the first to resort to the use of force.¹⁶

Therefore, irrespective of the historical, Hadith and theological literatures, the key to the legal treatment of the khawarij is their use of violence and for this reason classical Islamic law books study their case as one of the four forms of the non-international armed conflicts developed under Islamic law because of specific precedents that took place within the first four decades following the demise of the Prophet in 632 AD. The above brief discussion has shown some similarities between the khawarij and the culprits of hiraba in the sense that both of them commit acts of terrorism and victimize peaceful civilian Muslims. It has also shown stark dissimilarities between the methods of force adopted by the khawarij and those adopted by the culprits of hiraba, on the one hand, and the armed rebels, on the other. Because armed rebels do not target peaceful civilians or civilian property, a set of extremely strict and humane rules of combat must be followed by the state army when attempting to mount a defence against them. The point here is to show by way of comparison the different rules of combat that must be applied in these conflicts and which, in turn, will prove, in addition to the issue of prosecution touched upon below, among other issues, the unwarranted confusion and misuse of the misidentification of the conflict in order to punish the political opponents of the state. The rules of combat against them include that the state army cannot: 1) initiate the hostilities; 2) shoot to kill the rebels; or 3) pursue the rebels if they escape the fighting. More importantly, 4) any damage to lives and property committed by both sides of the conflict during acts of hostilities are not punishable as long as they are dictated by military necessity and, therefore, 5) captured rebels must be set free after the cessation of hostilities.

Understandably, none of these five rules applies in the case of fighting against the culprits of hiraba, who receive the severest punishments in the Islamic penal code. Bearing in mind the similarities between the khawarij and the culprits of hiraba in terms of the indiscriminate killings and acts of terrorism and victimization of peaceful civilian Muslims, which they both commit, the rational position here is that the khawarij receive the same treatment vis-à-vis the rules of combat and punishment as the culprits of hiraba. This because they commit the same acts of terrorism, though often with different motivations: the classical legal literature shows that at least during the first two centuries of the Islamic history, which witnessed the development of the Islamic legal literature, the motivations of the culprits of hiraba are often pecuniary, while the khawarij’s are often religious. That is to say that, regarding the rules of combat, the khawarij should be pursued if they escaped the battlefield; the prohibition on the shooting to kill rule may not be feasibly upheld here; if they are captured, they cannot be set free; and they have to be prosecuted in court for any damage they cause to lives and property. Nonetheless, as referred to above, since the primary sources of Islamic legislations (the Qur'an and the Sunnah) do not include specific regulations on the treatment of the khawarij, disagreements typically arose among the classical Muslim jurists over whether the khawarij should be treated as armed rebels or terrorists. Among the material legal consequences of the fact that, as pointed out by Abou El Fadl, ‘the Khawarij were declared to be rebels, entitled to the treatment given to the bugha, and not bandits’,¹⁷ are that the khawarij cannot be pursued if they escaped the fighting and, more importantly, they will not be held liable for the lives and property they destroyed.

Therefore, and this takes the discussion to the second question, according to this untenable position of treating the khawarij as rebels, if a group of khawarij who commits acts of terrorism against peaceful civilians were brought to an Islamic court for prosecution, they will go unpunished for their terrorism. Indeed, this untenable position indicates a lacuna in the Islamic legal treatment of the khawarij. It is true that the khawarij may share with the armed rebels the three conditions required for an armed group to be qualified as rebels: 1) khuruj (actual use of force); 2) mana/shawka (power, force); and 3) ta'wil (justification). But the main characteristic that distinguishes the khawarij from armed rebels is that the khawarij

do not abide by the Islamic regulations on the use of force in addition to their notorious use of terror-oriented methods against their civilian victims. In the case of armed rebellion, in addition to the rules of combat mentioned above, the use of force by the rebels must be strictly limited to achieving the cause of the rebellion and must be directed against government targets. Hence, armed rebels will be held liable for any damage they cause to lives and property that is not directly related to achieving the cause of rebellion or made before or after the rebellion. Therefore, this chapter supports the position adopted by some of the classical Muslim jurists that the khawarij must be treated under the law of hiraba. In other words, they must be held liable for their acts of indiscriminate killings and acts of terrorism and that they do not deserve the protected status armed rebels receive under classical Islamic law, as maintained by some other classical jurists. Regrettably, even the jurists who opined that the khawarij are to be treated as the convicted culprits of hiraba did not touch upon the punishment that the khawarij should receive. The determining factor for the prosecution the khawarij is and should be whether they violate the Islamic restraints on the use of force or not. Likewise, it is interesting to find that under international humanitarian law (IHL) for international armed conflicts, resistance movements in support of a party to the conflict receive the protected status if they meet four conditions: 1) they are under responsible command; 2) they have a distinctive sign or emblem; 3) they carry arms openly; and 4) they use force in accordance with the laws and customs of war.¹⁸ Apart from the distinctive sign, which may not be regularly observed in such classical primitive war situations, and although not all classical Muslim jurists stipulated that armed rebels must have a commander, this modern IHL discussion about ‘resistance movements’ is brought here because it supports the thesis argued in this chapter that the overarching factor which should be used in an Islamic court to distinguish between the armed rebels and the khawarij is abiding by the Islamic regulations on the use of force, in addition to meeting the three conditions required for being classified as rebels. If the khawarij abide by the Islamic restraints on the use of force, then technically under Islamic law, there will be no grounds for prosecuting them because they could fall in the same category, and thus enjoy the protected status, of armed rebels since they fulfil the same three conditions of the armed rebels, referred to above.

<< | >>

↑

Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

More legal literature on Laws.Studio

Religious violence

More on the topic Religious violence: