Terrorism

Almost every known human society has experienced some form of terrorism. The Quranic texts 5:33—4 addressed a specific horrific incident that took place during the Prophet’s life­time and mainly regulated the punishment for the culprits as follows:

Indeed, the retribution for those who yuhdribun (make war upon) God and His Mes­senger and strive to make fasdd (destruction, damage) in the land is that they be killed or [emphasis added here and below] gibbeted or have their hands and feet amputated from opposite sides or they be banished from the land; this is a degradation for them in this world and in the Hereafter they will receive a grave chastisement.

Although this text addresses an incident of armed robbery in which the culprits brutally severed the limbs of their victims and intimidated the passers-by during their escape, classical Muslim jurists developed a description of the crime of hirdba in the light of the above suc­cinct yet key Quranic term in the subject ‘makefasad (destruction, damage) in the land’ and the acts of terror they witnessed that considerably matches with the description of the main elements of the current phenomenon of terrorism. The word used for terrorism in contem­porary Arabic usage is al-irhdb, although it was never used in the Qur'an, in the sense of ter­rorism. Its derivatives occur eight times in the Qur'an, seven times in the sense of fear (2:40; 7:116, 154; 13:59; 16:51; 21:9; 28:32) and once in the sense of deterrence (8:60).^[3] Although usually defined in slightly different ways, since the earliest available legal literature of the four Sunni schools of Islamic law, which dates back to the second/eighth-century, classical Muslim jurists agree on the following description of the crime of hirdba: ‘a group of Muslims who under the threat, or use, of arms attack or merely intimidate or terrorize their victims in order to overtly and forcefully rob, kill or merely terrorize their victims’.³

In December 2003, the Mecca-based Islamic Fiqh Council, affiliated to the Muslim World League, brought a 20th-century dimension to the Islamic definition of the crime of hiradba/terrorism as follows:

Terrorism is an atrocity committed by individuals, groups or states against the human being (his religion, life, mind, property and honour).

In its 17th meeting held in Jordan on 24—28 June 2006, the Council affirmed that all current forms of terrorist actions fall under the crime of hirad ba. Although the world has not agreed yet on a common definition of terrorism and irrespective of the wording of these classical and contemporary Islamic definitions of the crime of hirdba, in particular, the classical Islamic legal definitions satisfy the following main elements of the crime of terrorism in its current forms. of victims, this element distinguishes between the same criminal acts when committed under the crime of hiraba and when classified merely as acts of murder or theft, etc. by individual criminals. A major consequence here is that the punishment is grossly more severe under the law of hiraba. That is because under the crime of hiraba such acts are committed by a group of organized criminals who therefore possess a degree of what the classical jurists described as shawka or mana (power, force). This means that their criminal activities are undertaken mostly in a premeditated manner. No less importantly, their organized use, or intimidation of the use, of force is used in an overt manner which indicates mukabara/mujahara (an overt flagrant challenge) to state authorities and hence constitutes a great danger to stability and security of society at large. Furthermore, as pointed out by the Andalusian jurist exegete al-Qurtubi (d. 1272), it also constitutes a danger to the economy of society.⁵ That is because any individual(s) can be the victim(s) of this crime and hence it causes a widespread fear in the entire society which endan­gers the security and economy of any country.

2) Use, or intimidation of use, of force. The Hanafi, Shafi'i and Hanbali jurists, in partic­ular, stressed the element of the use of force/arms and sometimes they even refered to certain simple and primitive arms such as sticks or stones. Irrespective of the primitive or lethal nature of the arms used against the victims, what the classical Muslim jurists intended to stress here is that such use of arms against peaceful civilians who are not prepared for such attacks inculcates a state of widespread fear and intimidation among its victims. But it is interesting to find out that the Maliki jurists, in particular, specifically include under the crime of hiraba the mere act of intimidation or the threat of the use of force obviously because intimidation could create a similar context of widespread fear that may endanger stability in any society. Here also this element of the threat of the use of force and intimidation indicates a daring challenge to the state authorities and this is also one of the reasons of the severe punishments the convicted perpetrators of this crime receive.

3) The lack of a justification for their criminal acts altogether. Unlike the current defini­tions and studies of terrorism which focus on the motives of the terrorists, specifically the political ones, classical Muslim jurists did not focus much on the motivations behind the resort to the forms of terrorist actions in their time.

4) The helplessness and victimization of the targets. The rationale behind this element as is reflected in the classical Muslim jurists’ deliberations is that the context of the crime of hiraba does not refer to any of the contexts of hostilities between armed adversaries who are prepared for any armed attack.

This specific concept of helplessness and victimization led, first, Abu Hanifa (d. 767), the eponymous founder of the Hanafi schools, and a few jurists of the Hanbali school to restrict the application of the crime of hiraba to crimes committed in the desert or un­populated areas simply because victims are la yalhaquhum al-ghawth (cannot be rescued, helped) in these places. But in populated areas or in the villages, victims can be rescued either by the police or the ordinary public.

Although the nature, contexts and forms of terrorism often change, the above specific context and the deliberations of the classical Muslim jurists over what constitutes the crime of hiraba largely echo the modern phenomenon of terrorism. The above elements of the threat, or the use, of force against helpless and defenceless peaceful civilians exist in all terrorist acts taking place at present at the hands of either Muslims or non-Muslims. However, the context treated by the classical Muslim jurists indicates rather a context of domestic terrorism rather than international terrorism. It took place in Muslim territories and the culprits and victims were mostly Muslims or permanent non-Muslim citizens of the Islamic state. This can be understood in light of the fact that at the time Muslim individuals or groups could not move freely in non-Muslim territories, let alone carry arms and commit terrorist attacks in such territories. In fact, contemporary Muslim scholars added little to the discussion of the subject of terrorism under Islamic law. They mainly included some modern forms of terrorism to the primitive forms discussed above by their classical predecessors. For example, some modern scholars argued for including organized assassinations of politicians or businessmen, kidnap­ping for ransom, mafia gangs, drug trafficking, hijacking airplanes, ships, etc., and terrorist explosions.⁸ In fact, the Quranic term generally guiding the description of the crime of hiraba, ‘make fasdd (destruction, damage) in the land’, includes any current or future form of illegal damage or destruction in a non-fighting situation or the threat and intimidation of the use of force against peaceful civilians as shown within the context discussed above. But interestingly and fortunately, the treatment of what constitutes terrorism under Islamic law focuses on the actions, the elements and context of this heinous crime, irrespective of, and unlike the modern world’s unwarranted focus on, the political or social motivations of the terrorist actions. Indeed, the classical Muslim jurists’ approach avoids the misuse of the label of terrorism and assures that culprits of the same criminal acts receive the same punishments regardless of the nature of their motivations.

The punishment of hirdba falls under the category of huddd because its punishment is pre­scribed in the Qur'an. It is worth recalling that this heinous crime is figuratively described as a war against God and His messenger because of the danger it constitutes to society as a whole. Hence, it constitutes a crime against both what is described in Islamic parlance as huquq Allah (rights of God) and huquq al-‘ibdd (rights of the humans), i.e. civil liability. Partly, therefore, the punishment of hirdba is the severest under the Islamic penal code. Without getting into the details of the jurists’ deliberations, they split into two groups: the majority which includes the Hanafis, Shafi'is and Hanbalis maintain that the four specific punishments included in the above Qur'anic texts — i.e. execution, gibbeting, amputation of the right hand and left foot, and banishment/imprisonment — are listed in a manner that in­dicates a specific order according to the crimes committed. In other words, execution is the punishment of a person convicted of hirdba who kills his victim, and gibbeting and/or am­putation can be added if he also robbed his victims. If the convicted criminal only kills his victims without robbing them, then only execution is the punishment. If the criminal only robbed his victim, then his punishment is the amputation of the right hand and left foot. If the criminal only intimidated/terrorized his victims, then his punishment is banishment/ imprisonment. However, the Maliki jurists argue that these punishments are intended to give the judge the freedom to choose the punishment that is suitable to the case of each convicted criminal. For instance, if the criminal is clever in planning the crime, he is to be executed because the rest of the punishments will not stop him from being a danger to society. While if he lacks this skill, but has the physical ability to carry out the crime, then amputation is the punishment that can prevent further crimes. Thus, if the criminal lacks both the intellectual and physical capability to commit the crime, then the judge can give him a discretionary punishment or send him into exile. Convicted accomplices of the crime of hirdba receive the same punishment as the convicted culprits according to the majority of the jurists, while al-Shafi'i maintains that they receive only a discretionary punishment left to the judgment of the judge and imprisonment.⁹

The above brief discussion shows that under Islamic law, the identification of what consti­tutes terrorism and the punishment of its culprits and accomplices are crystal clear regardless of the usual disagreement among the jurists. Moreover, the Islamic treatment of terrorism provides a fully developed framework that may include new forms of terrorist acts as long as the above elements are met. The significance here is that the lack of ambiguity in the iden­tification of terrorism to a great extent could prevent the manipulation of the law by trying under the law of terrorism the political opponents of the state, particularly armed rebels who are to be treated, not tried, according to a different law. Unfortunately, it is because of the historical and geographical proximity between two forms of internal hostilities that took place during the reign of the Fourth Caliph 'Ali b. Abi Talib (r. 656—661), namely, armed rebellion and the khawarij, that a considerable degree of confusion in differentiating between them has existed since the second Islamic century in the Islamic legal and theological litera­tures, as studied below.

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