1 of 12 DOCUMENTS
Copyright (c) 2002 President and Fellows of Harvard College
Harvard International Law Journal
Winter, 2002
43 Harv. Int'l L.J. 53
LENGTH: 5870 words
ARTICLE: The Trial of Terrorists Under Classical Islamic Law
Frank E. Vogel*
* Prof. Frank E. Vogel, Director, Islamic Legal Studies Program, The Custodian of the Two Holy Mosques
Adjunct Professor of Islamic Legal Studies, Harvard Law School.
SUMMARY:
... This Essay addresses some of the legal issues inherent in the question: What would be the course of events if
alleged perpetrators of the September 11 terrorist attacks were tried before a court that applied solely classical Islamic
law? Such an inquiry has become relevant on numerous grounds. ... Second, classical Islamic criminal law is the
prevailing legal standard in a number of interested countries (these countries are discussed further below). ... Even
among the Muslim states in which much of the classical law has been altered or replaced over the last century, several
states have adopted classical Islamic criminal provisions by statute. ... For certain acts, execution is an acceptable
punishment, however, and, according to some thinkers, execution is allowed in general whenever, as one scholar puts it,
"the offender's evil cannot be prevented except by his execution." ... They have committed hiraba, one of the hudud;
they caused the death and injury of many people; and they committed sins deserving discretionary punishment. ...
Thus, if for any reason an accomplice in the crimes of September 11 were to escape prosecution for hiraba (as might
happen due to the requirement in hudud to banish all "doubt," whether of doctrine or of evidence) then, as long as the
prosecution/plaintiff proved satisfactorily that the accomplices have committed sins, the accomplice could be punished
at the discretion of the ruler or judge. ...
TEXT:
[*53] This Essay addresses some of the legal issues inherent in the question: What would be the course of events if
alleged perpetrators of the September 11 terrorist attacks were tried before a court that applied solely classical Islamic
law? Such an inquiry has become relevant on numerous grounds. First, Islamic law is the law appealed to, at least as a
matter of extremist religious propaganda, by the alleged perpetrators Osama bin Laden and his Al Qaeda [al-Qa'ida]
organization, and by the Taliban regime in Afghanistan, which has harbored them. Second, classical Islamic criminal
law is the prevailing legal standard in a number of interested countries (these countries are discussed further below).
Third, ranging somewhat more broadly, Islamic law would be relevant if an international tribunal were entrusted with
the trial of the terrorist offenders and that tribunal resolved to include, or was charged with including, Islamic
jurisprudence among its sources of law. Such a tribunal would have to trace many of the steps considered in this Essay.
Fourth, Islamic law might become relevant if a Muslim judge were appointed to a tribunal trying offenders. Regardless
of the laws acknowledged by the tribunal, the issues raised in this Essay might pass through that particular jurist's mind
and influence his verdict and sentence. Lastly, and regardless of the court and law under which the perpetrators were
tried, to the extent that Muslim peoples and states are influenced by classical Islamic legal precepts, they will evaluate
any trial's process and outcome in part in relation to them.
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43 Harv. Int'l L.J. 53, *
For purposes of this discussion, the scope of the Essay is limited in three principal ways. First, as noted above, this
Essay assumes a trial of those accused of the terrorist attacks before a court applying solely classical Islamic law, both
as to substance and procedure. The assumption is not entirely implausible. n1 In response to a demand by the United
States for bin Laden, the [*54] Taliban offered to surrender him for trial under Islamic law in an Islamic state. n2
The three countries that most thoroughly apply classical Islamic law are Afghanistan, Saudi Arabia, and Iran. In
Afghanistan, the Taliban have reportedly abolished all earlier Afghani codes, so, unless and until new codes are
adopted, a criminal trial would proceed under the old, uncodified Islamic law according to the Hanafi school of Sunni
law. n3 Similarly, in Saudi Arabia, a court would apply the largely uncodified Hanbali school of Sunni law. n4 And a
court in Iran would apply a criminal law codifying the Twelver Shi'i law. n5 Even among the Muslim states in which
much of the classical law has been altered or replaced over the last century, n6 several states have adopted classical
Islamic criminal provisions by statute. These states include Pakistan, n7 Sudan, n8 and Nigeria. n9 Finally, an
international criminal court could be charged with trying the case solely under the classical Islamic criminal law or
some specific form of it. n10
Second, this Essay assumes that the court hearing a case would reject any justification under Islamic law for the
September 11 terrorist attacks, including assertions that the acts were to any degree excusable, legitimate, or obligatory.
n11 The media has exposed some of the alleged justifications: the [*55] United States has declared war on Islam and
invaded Muslim lands; struggle or jihad to defend Islam is therefore incumbent on every Muslim; the death of American
civilians is justified by these civilians' support for their government's actions, or as the unavoidable outcome of the only
or most effective form of resistance. n12 The great majority of Muslim scholars, however, have denounced such
arguments, and have offered strong evidence that the classical law, even in the context of waging war or jihad,
condemns acts causing terror or the indiscriminate killing of non-combatants. n13
Finally, this Essay assumes that the court would apply the majority Sunni division of Islam. n14 Admittedly,
making accurate generalizations even when limited to Sunni law is difficult: there are four major Sunni schools of
thought, n15 and there are varied opinions within each school. This Essay makes every attempt to cleave to unanimous
or majority opinions, and will note minority views where appropriate. n16
The discussion that follows first focuses on the structure and procedure of the Islamic criminal courts, then looks at
the substance of the law, and finally applies the procedure and substance to a trial arising from the September 11
attacks.
I. ISLAMIC CRIMINAL COURTS: STRUCTURE AND PROCEDURE
The pre-modern Islamic court consisted of a single judge, who was to meet certain qualifications of piety, purity of
conduct, and scholarly knowledge of the religious law (so as to be able to interpret the law or at least find it in
authoritative books). Modern Islamic courts are frequently multi-judge, however, and this is not seen as breaching
fundamental principle, however, since, even in the past, administrative arrangements existed by which judges [*56]
were required to consult learned advisors or to act only with the approval of other judges.
Classically, defendants were not represented by attorneys. Instead, judges believed that they alone bore the
responsibility to protect the defendant from injustice. They thought it best to engage the defendant as directly as
possible to advance the search for truth regarding guilt or innocence and, in case of guilt, to fix the punishment most
exactly matching the individual's unique moral state. However, this practice is also not one deriving from fundamental
principle, so a judge would be free to allow a defendant to bring an adviser to court with him if fairness so demands.
Nowadays, nearly all Muslim countries allow the participation of defense attorneys, and even Saudi Arabia, which
otherwise clings to the traditional rule, allows attorneys for non-Arabic-speaking defendants.
A private citizen may instigate a criminal case, but much more commonly a government official, usually some form
of policeman, both brings criminal cases and prosecutes them. Proceedings are public unless there is a countervailing
harm from publicity, such as a threat to the parties, to national security, or to public morality. Proceedings may not be ex
parte, and the defendant must be present to hear all evidence brought against him.
As to the standard and burden of proof, the presumption of innocence is fundamental, and the state must prove its
case. The defendant has an obligation to respond to the accusation against him, and may do so by simple denial. Parties
may not testify on their own behalf. n17
The standard of proof varies somewhat with the type of crime or punishment. For certain crimes laid down literally
in scripture, called hudud (discussed below), conviction is to be avoided if there is any doubt at all, whether doctrinal or
factual. n18 The prosecution's burden is also high with respect to crimes with the more severe punishments, such as
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amputation or death. For other crimes, particularly those with lesser punishments such as lashing, imprisonment, or
fines, the burden is lower.
The judge controls the progress of the case and the examination of witnesses, much more so than do the parties. For
example, any cross-examination that occurs is conducted by the judge, or by the parties only with the permission or
intermediation of the judge. The basic rule of evidence is that one who asserts or posits a fact bears the burden of
proving it, while one who denies or negates a fact must take an oath of denial. Therefore, each party must bring to court
the necessary witnesses or other evidence to establish any facts affirmed or asserted. For example, the
prosecutor/plaintiff [*57] must prove facts as to the commission of the crime, while the defendant must prove the fact
of self-defense. As will be discussed below, evidence must meet certain high prerequisites to be accepted; once
accepted, however, the assertion it supports is taken as proven and the other party is given no opportunity to bring
evidence to negate it. The crucial battle, therefore, is over the admissibility, not the credibility, of the evidence. The
consequences of failing to produce admissible evidence differ in civil and criminal cases. In a civil case, if one party
fails to produce evidence to support a claim, the other party does not win until he or she denies that claim explicitly by a
religious oath. In a criminal case, however, if the prosecution/plaintiff fails to provide evidence to support the
accusation, the defendant is acquitted forthwith.
The traditional rule with respect to acceptable types of evidence in criminal cases--often recited in the works of
classical scholars and repeated by modern legal scholars--is that the only acceptable proofs are confession by the
defendant or testimony by two male, religiously observant, Muslim eye-witnesses of good moral character. n19 This
traditional viewpoint precludes the testimony of women, non-Muslims, and people of questionable character, as well as
the introduction of real, scientific, or circumstantial evidence. However, this view neither reflects the medieval practice
nor accurately expresses the classical doctrine in all its dimensions. It ignores an important distinction as to the type of
tribunal or judge trying a criminal case: The law limits admissible evidence to testimony or confession when it is
applied in a shari'a (i.e., religious law) court by a religious scholar, but provides for other rules of evidence and
procedure when it is applied by a military official charged with the suppression of crime, who in this respect represents
the age-old Islamic criminal court called the shurta. Such a fact-finder has means of investigation and proof that are
much more lenient, and allow him to consider evidence not meeting the ideal shari'a court standards, including the
testimony of women and non-Muslims and various forms of circumstantial and real evidence. n20 A series of classical
scholars from various schools have made the case that the means of proof open to the shurta official should also be
available to a shari'a court judge, particularly in treating crimes that are not hudud. n21 In fact, it is likely that such an
approach was common enough in practice, since we know that for long periods in broad regions of the premodern
Muslim world, criminal law was mostly or entirely applied by [*58] shari'a courts, not police courts. The
administration of justice would not have been practical if these courts used only the forms of evidence canonically
available to them. Note that making both systems of evidence available to a single judge is the current practice in Saudi
Arabia.
II. ISLAMIC CRIMINAL LAW: SUBSTANCE
Crimes in Islamic law fall into three major categories: hudud crimes (which are set down by the scriptures),
retaliation crimes (for which punishment is retaliation in kind), and ta'zir crimes (which is a catch-all category).
A. Hudud Crimes
The hudud crimes make up the first category. These are crimes that the Qur'an or the Sunna--the two written
scriptures of Islam--establish, both in terms of the definition of the crimes and in terms of the scope of the punishment.
The classical scholarly law treats these crimes in great detail because of their scriptural origin.
Hudud crimes include wine-drinking, adultery, false accusation of adultery, theft, apostasy, and, of particular
relevance to the topic of this Essay, hiraba.
Hiraba, literally, "mak(ing) war," is interpreted as including acts of terror. It is established by a Qur'anic verse:
The only reward of those who make war upon Allah and His messenger and strive after corruption in the
land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or
will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs
will be an awful doom; Save those who repent before ye overpower them. For know that Allah is
Forgiving, Merciful. n22
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Classical scholars glossed this rather vague text as intending two different crimes. They interpret the clause about
"making war" or hiraba as referring to brigandage [qat' al-tariq, literally, "highway robbery"]. The clause referring to
"striving for corruption in the land" [yas'awna fi-al-ardi fasadan] is held to create the crime of "corruption in the land."
The majority view of classical schools defines the first crime of hiraba relatively narrowly, as the use of armed force, in
deserts or otherwise far from habitation, for the purpose of taking property. n23 However, views of various schools
and scholars omit one or another of these elements, thereby making the crime broader (as [*59] indeed would seem
entailed by the Qur'anic verse itself). Some scholars argue that limiting hiraba to remote areas is an unnecessary
limitation, and that acts in cities are also covered, especially in cases where calls for help would be fruitless. n24
Scholars also frequently omit the requirement of the motive of taking property, pointing out that acts having other
motives, such as rape or spreading terror, are as likely to deserve severe punishment. n25
The punishments for hudud crimes are severe. Wine-drinking, false accusation, and fornication by unmarried
people call for lashing, theft calls for amputation, adultery of a person who has at any time been married calls for
stoning, and apostasy calls for beheading. The Qur'anic verse establishing hiraba names four alternative punishments:
banishment, amputation of the hand and foot, death, and crucifixion. There are two basic approaches to choosing among
these four punishments. One view discerns four gradations of severity in acts of hiraba, and assigns to each of these
gradations one of the four punishments. Thus, one who terrorizes the highways but takes no property and commits no
murder is punished by banishment, usually understood as imprisonment until the offender demonstrates "repentance,"
or, these days, as life imprisonment. One who takes property but kills no one is punished by amputation of the right
hand and the left foot. One who kills and does not take property is punished with beheading. Finally, one who kills and
takes property is punished with beheading followed by crucifixion in the sense of display of the corpse or gibbeting
(few scholars consider crucifixion a separate form of capital punishment). The second position is that the four
punishments are options among which the ruler is allowed to choose according to the circumstances of each case.
Within this view, disagreement persists as to whether the ruler's choice is entirely free, or whether (as the Malikis hold)
he has no choice but to behead the killer. n26
B. Crimes of Intentional Harm
The second basic type of crime is intentional wounding or killing (murder). For these crimes, the punishment is
retaliation in kind [qisas]--that is, for wounding, the exact surgical repetition of the wound, if possible, and for killing,
beheading.
These crimes are, in a way, not crimes at all; they are punished not by the state bringing a criminal action but by the
injured party or the injured party's heir filing a civil claim. A complainant possesses the right to forgive the act or to
accept monetary composition in return for foregoing retaliation, unless the crime is a form of aggravated murder
(including surreptitious murder with a motive of gain), in which case the state exacts the punishment of beheading
regardless of the complainant's wishes.
[*60] C. Ta'zir Crimes
The last general category of crime, ta'zir, is a residual, or catch-all, category. If an act is categorically forbidden by
the Islamic law (i.e., it is a sin, ma'siya), but is not one of the hudud, and also does not involve retaliation, then a
ruler--or, in the ordinary case, the judge acting as the ruler's agent--may administer "moral chastisement," or ta'zir,
according to his discretion.
Three factors chiefly decide the quantum of punishment: the culpability of the defendant, the heinousness of his act,
and the needs of the public welfare. n27 Punishments for this type of crime usually include lashing, imprisonment, or
fines. For certain acts, execution is an acceptable punishment, however, and, according to some thinkers, execution is
allowed in general whenever, as one scholar puts it, "the offender's evil cannot be prevented except by his execution."
n28
The crime of "corruption in the land" mentioned above n29 falls in some senses within the category of ta'zir. The
branch of the Qur'anic verse referring to this crime n30 came to be interpreted as legitimating severe punishments
exacted by the ruler for the public good (siyasa, maslaha). Apart from this highly general description, however, scholars
chose to leave the crime nearly wholly undefined and unregulated, suggesting their intention that each exercise of this
authority by a ruler (or again, by a judge on his behalf) should be reviewed individually. n31 As an example of crimes
under this heading, Ottoman practice was, and now Saudi practice is, the summary execution of persons who have,
beyond a shadow of doubt, committed heinous crimes--on the theory that it is good public policy to punish these types
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of crimes summarily and hastily. Thus, a ruler might dispatch summarily a notorious brigand caught red-handed,
avoiding the niceties of trial for the sake of making an example.
Interestingly, it is this crime of "corruption," and not hiraba, that is used in present-day Saudi Arabia to punish
domestic terrorism. A 1988 fatwa of the Board of Senior Scholars, a government body charged with issuing fat-was to
the government and the public, declared that "sabotage" constitutes the crime of corruption in the land and deserves the
death penalty. n32 "Sabotage" [*61] is defined as any act that disturbs security by aggression upon person and
private and public property, including hijacking and bombing. Citing the Qur'anic verse above n33 and various
Prophetic statements in the Sunna, the Board declared that the harmfulness of the saboteur is much greater than that of
the highway robber. The robber seeks only private gain and "commits aggression against a single person," but the
saboteur aims at "shaking security and demolishing the structure of the [Muslim nation], uprooting its faith, and
diverting it from the Divine Path." n34 This fatwa has been applied in several prominent instances. n35
III. ISLAMIC CRIMINAL LAW: SEPTEMBER 11
In applying the classical law to the events of September 11, the procedural issue that looms largest is the issue of
the breadth of forms of evidence acceptable to the court. It is highly likely that, for many of the crimes to be prosecuted,
neither approved male Muslim eye-witness testimony nor voluntary confessions will be available to establish every
element of the prosecution's case. (The problem would be most severe in any prosecution for hiraba, since courts are
particularly fastidious as to evidence in hudud crimes.) It is here that the important classical principle of dual criminal
jurisdictions, those of the police [shurta] and the shari'a courts, should come into play. There is clear classical precedent
for shari'a courts to assume the jurisdiction of shurta courts and, along with this jurisdiction, those courts' more lenient
procedural rules. For a modern court to do so requires a certain willingness to overlook much modern writing on Islamic
law that seeks to minimize the gravity of the apparently harsh penalties of Islamic law by emphasizing the stringency of
the evidence required for them, and that accordingly minimizes the role of shurta courts and their procedure, despite the
antiquity of those courts and their recognition in classical works on government. n36
As to matters of substantive law, all three types of crime discussed above could apply to the perpetrators of the
September 11 attacks. They have committed hiraba, one of the hudud; they caused the death and injury of many people;
and they committed sins deserving discretionary punishment. Each is examined in order.
With respect to the hudud crimes, scholars have described terrorist acts as constituting hiraba, "the making of war,"
though the acts may be committed in a city and for the motive not of taking property but of spreading terror or causing
indiscriminate death and destruction. Clearly the immediate perpetrators of the September 11 attacks (who have
permanently escaped [*62] prosecution by immolating themselves) would have been guilty of this crime. As such,
their appropriate punishment would be beheading followed by gibbeting. The question remains, however, whether their
accomplices may be prosecuted under hiraba. Ordinarily hudud crimes apply only to those who directly [mubashara]
commit the elements of the crime, but hiraba is peculiar in this respect. For three of the four schools, those who
participate but do not commit any of the actual robbery, killing, or terrorizing, are equally punishable for hiraba. n37
'Abd al-Qadir 'Awda describes the accomplices who can be reached by this approach as follows: those "to whom the
[perpetrator] resorts when he flees," those in the "vanguard" who "survey the highway and bring news," and those who
are "supporters" who are present at the time of the crime but do not take any action. n38 Such persons are equally
culpable because they assist the actual doers of the act to exhibit and exert force, which is the essence of the crime. The
entire group, perpetrators and accomplices, has to suffer the same punishment as that of a single person guilty of
committing the acts of all of them. n39 Thus, an accomplice who helped the September 11 hijackers smuggle weapons
onto the aircraft, or advised them by radio from the ground, might be indictable as a participant in hiraba and be liable
to the same penalties as those who flew the planes.
Moving to the second category of crime, retaliation or qisas, there is no question that the actual perpetrators of the
attacks would be convicted, if they were alive. The question is whether injured persons or the heirs of deceased persons
may sue accomplices for retaliation. Retaliation law allows such claims only against the person or persons who directly,
immediately, caused the injury. The only exceptions occur in extreme cases where the direct perpetrator's will is entirely
overborne by someone else, either because he is not himself mentally capable or because he has been put under threat of
death or severe bodily harm. Neither of these situations appears to exist in the context of the September 11 attacks.
Since the direct perpetrators have perished in the attacks, preventing any claim of retaliation, the claimants are left only
with civil claims against the perpetrators' estates for blood-money [diya] for death or injury (the sum for death is about $
30,000 in Saudi Arabia today), to be conjoined with any claims for property damage. Of course, the offenders' estates
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would hardly match up to claims of that order. The smallest ray of hope is provided by a Maliki view that imposes joint
and several civil liability on all involved in hiraba, whether as perpetrators or accomplices. n40
[*63] The remaining category is that of crimes punishable at the discretion of the ruler (or of the judge as the
ruler's agent), or ta'zir. Here there are three sub-categories to consider. First, a judge could apply the crime of
"corruption in the land" to the perpetrators of the September 11 attacks, as scholars in Saudi Arabia have recommended
for acts of terror and sabotage in that country, and as Saudi courts have done on several occasions. n41 Second, under
general ta'zir authority a judge may punish any act if it is in itself a sin. Thus, if for any reason an accomplice in the
crimes of September 11 were to escape prosecution for hiraba (as might happen due to the requirement in hudud to
banish all "doubt," whether of doctrine or of evidence) then, as long as the prosecution/plaintiff proved satisfactorily
that the accomplices have committed sins, the accomplice could be punished at the discretion of the ruler or judge.
Again, ta'zir punishments can extend to death by beheading when the protection of the society and the deterrence of
evildoers (two of the main purposes of ta'zir) require it. Third, ta'zir law also incorporates punishments for accomplices
by "indirect causation" [tasabbub]. The theory here is that the intentional causing of a crime, not by direct [mubashara]
action or participation, but by intentionally completing an essential link in the chain of causation leading to the crime, is
in itself a sin and punishable by ta'zir. Included would be, for example, the acts of laying plans for a crime or even just
inciting to it [tabrid]. Such accomplices normally escape the penalty imposed on those who directly commit the crime,
but suffer instead a ta'zir punishment determined in accordance with their own sinfulness in "causing" the crime. n42
Obviously, drawing a boundary line between acts of accomplices punishable for "indirectly causing" the September 11
attacks and acts that are too remote to be punishable would present a difficult task of interpretation for the judge. For
example, would providing the perpetrators with a generic legal opinion or fatwa advocating the killing of U.S. civilians
constitute "indirect causation"? Would providing funds to known terrorists suffice? A judge must resolve such questions
by parsing and plumbing the particular cases or examples discussed by past scholars, or through his own fresh
interpretations [ijtihad].
IV. CONCLUSION
To the extent that a judge trying persons connected with the attacks of September 11 is influenced by Islamic law
(and rejects any color of excuse or justification based on claims of jihad or war between the West and Islam), that judge
would find few obstacles to issuing death or other severe sentences on all persons who participated in or contributed
causally to the attacks. [*64] The results would probably be little different in effect, as to either procedure or
substance, from the results of a trial under any other domestic or international legal order, except perhaps in that Islamic
law more readily favors, and so often prescribes, the death penalty.
FOOTNOTES:
n1 From the viewpoint of classical law at least, it is not odd that a court in one country could try a person
for crimes committed outside that country, even in a jurisdiction where Islamic law did not apply. Most
medieval law scholars declared that the criminal laws of Islam bind an offender regardless of where he commits
his crime. The Hanafi school provides a partial exception, declaring that acts committed outside the part of the
world where Islamic law is applied cannot be subsequently punished under shari'a. 7 'ALA AL-DIN ABU
BAKR B. MAS'UD AL-KASANI, BADA'I' AL-SANA'I'FI TARTIB AL-SHARA'I' 131 (Dar al-Kitab al-'Arabi
1982).
n2 Taliban Rebuffs Pakistani Clerics' Call for Bin Laden, WASH. POST, Sept. 30, 2001, at A2.
n3 In 1977 Afghanistan adopted penal and civil codes, but their enforcement has been haphazard under the
rapidly changing political orders since that time. See MOHAMMED HASHIM KAMALI, LAW IN
AFGHANISTAN: A STUDY OF THE CONSTITUTIONS, MATRIMONIAL LAW AND THE JUDICIARY
233 (1985). Reportedly, a Taliban penal code exists, issued by Mullah Omar, but this code appears to be merely
an example of the type acknowledged classically by which Islamic rulers fix specific punishments for ta'zir
crimes in order to supplement or restate, but never supplant, the rules of the religious law itself. See Amy
Waldman, A Nation Challenged: The Law, N.Y. TIMES, Nov. 22, 2001, at A1.
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n4 For a description of the situation in Saudi Arabia, see generally FRANK E. VOGEL, ISLAMIC LAW
AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA (2000) (ESPECIALLY pages 222-78).
n5 See ISLAMIC PEN. CODE OF IRAN arts. 196-211, at 60-64 (Sayyid Ali Raza Naqvi trans., Iran
Pakistan Institute of Persian Studies 1986) (on hiraba and terrorism against the Islamic state).
n6 Procedural and evidentiary issues have been particularly targeted for change. Most such changes have
been in the direction of Western substantive and procedural law and Western legal forms and institutions, such
as the use of codification and appeals courts.
n7 See SAHIBZADA MASUD-UL-HASSAN KHAN SABRI AFGHANI, EIGHTEEN YEARS DIGEST
ON HUDOOD LAWS 1979-1996, 328-29 (1996); MOHAMMED WAQAR-UL-HAQ, ISLAMIC CRIMINAL
LAWS: HUDOOD LAWS & RULES WITH UP-TO-DATE COMMENTARY 90-101 (1994); ASHFAQ
BOKHARY, LAW RELATING TO HUDOOD CASES 387-96 (1992) (on Pakistan's hudud laws, with
particular reference to hiraba).
n8 See Kent Benedict Gravelle, Islamic Law in Sudan: A Comparative Analysis, 5 ILSA J. INT'L & COMP.
L. 1 (1999).
n9 In Nigeria, not the federal government but several states have adopted these laws. See Norimitsu Onishi,
Rising Muslim Power in Africa Causes Unrest in Nigeria and Elsewhere, N.Y. TIMES, Nov. 1, 2001, at A12.
n10 Even in such a tribunal, however, given the scant extent to which most national courts apply the
classical law, no likely panel of judges would be composed solely of judges learned and experienced in the
classical criminal law. Accordingly, judges experienced with modern laws would likely introduce some modern
criminal law and procedure, and also consider these changes acceptable under a modern under-standing of
shari'a.
n11 See Osama bin Laden et al., Fatwa (Feb. 23, 1998), http://www.ict.org.il/articles/fatwah.htm (urging
jihad against Americans); Hamud Al-Shu'aibi, Statement About the [Sept. 11] Events in America (Sep. 16,
2001), http://aloqla.com/mag/sections/php?op=viewarticle&artid=40.
n12 Al-Shu'aibi, supra note 11.
n13 See Yusuf al-Qaradawi, Fatwa (Sept. 12, 2001),
http://www.islamonline.net/Arabic/news/2001-09/12/Article7.shtml (finding that U.S. foreign policy does not
justify U.S. civilian deaths). Although debates about whether the use of terror can be justified or excused are
interesting and important, they are not within the scope of this Essay. On that topic, see Ann Elizabeth Mayer,
War and Peace in the Islamic Tradition and International Law, in JUST WAR AND JIHAD 195, 217-20 (John
Kelsay & James Turner Johnson eds., 1991); Tamara Sonn, Irregular Warfare and Terrorism in Islam: Asking
the Right Questions, in CROSS, CRESCENT, AND SWORD: THE JUSTIFICATION AND LIMITATION OF
WAR IN WESTERN AND ISLAMIC TRADITION 129-48 (James Turner Johnson & John Kelsay eds. 1990)
[hereinafter CROSS, CRESCENT, AND SWORD]; John Kelsay, Islam and the Distinction Between
Combatants and Non-Combatants, in CROSS, CRESCENT, AND SWORD, supra, at 197-220.
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n14 So far, all those implicated in the events at issue, including the Taliban, are Sunnis.
n15 Hanafi, Shafi'i, Maliki, and Hanbali.
n16 The minority views may be important for a number of reasons. Any judge or court with the rank and
prestige to hear such a case would have authority to adopt such views. Many modern scholars and judges
consider themselves sufficiently learned to abandon the "standard" view of the school to which they belong (if
indeed they admit an affiliation at all). They may also claim the right to depart from their own schools altogether
in favor of any other view, particularly Sunni ones, that they find either more correct theoretically or better
suited to justice in the individual case or issue presented. In Islamic law such a freedom of interpretation can be
justified in multiple ways (judicial authority to derive shari'a rulings [ijtihad in one of its degrees], a grant of
jurisdiction to exercise choice among school views [ta'khir, ikhtiyar], etc.). See VOGEL, supra note 4, at
118-37.
n17 Thus, one who was injured by a terrorist attack could testify against the perpetrators, but only for the
benefit of other victims. Such other victims could, in turn, testify for him. 2 'ABD AL-QADIR 'AWDA,
AL-TASHRI' AL-JINA'I AL-ISLAMI MUQARINAN BI-AL-QANUN AL-WAD'I [CRIMINAL LAW OF
ISLAM] 646 (5th ed. 1976); 10 'ABD ALLAH IBN QUDAMA, AL-MUGHNI WA-YALIHI AL-SHARH
AL-KABIR 324 (Dar al-Kitab al-'Arabi 1983).
n18 See 8 ABU BAKR AL-BAYHAQI, AL-SUNAN AL-KUBRA 238 (The Prophet commanded, "If the
hadd is in doubt, repel it.").
n19 There are narrow exceptions in particular circumstances: certain vows fortifying suspicion in murder
(qasama), four eye-witnesses to adultery, etc.
n20 ALI IBN MUHAMMAD AL-MAWARDI, AL-AHKAM AL-SULTANIYYA WA-AL-WILAYAT
AL-DINIYYA 219-21 (Dar al-Kutub al-'Ilmiyya 1978).
n21 See, e.g., MUHAMMAD IBN ABI BAKR IBN QAYYIM AL-JAWZIYYA, AL-TURUQ
AL-HUKMIYYA FI AL-SIYASA AL-SHAR'IYYA (Muhammad al-Fiqi ed. 1953) (Hanbali); 1-2 IBRAHIM
IBN 'ALI IBN FARHUN, TABSIRAT AL-HUKKAM FI USUL AL-AHKAM (Dar al-Kutub al-'Ilmiyya)
(Maliki); 'ALI IBN KHALIL AL-TARABULUSI, MU'IN AL-HUKKAM FIMA YATARADDAD BAYN
AL-KHASMAYN MIN AL-AHKAM (Matba'at Mustafa al-Babi al-Halabi 1973) (Hanafi).
n22 Qur'an 5:33-34, in THE GLORIOUS QUR'AN 106 (Muhammad Marmaduke Pickthall transl. &
commentary, 1977). For further discussion of the crime of "striving after corruption of the land," see infra text
accompanying note 29.
n23 2 'AWDA, supra note 17, at 638-39.
n24 Id. at 644-45; 10 IBN QUDAMA, supra note 17, at 303-04.
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43 Harv. Int'l L.J. 53, *
n25 2 'AWDA, supra note 17, at 639-40. See also al-Hukm fi al-satw wa-al-ikhtitaf wa-al-muskirat (The
Rule as to Assault, Abduction, and Intoxicants), in MAJALLAT AL-BUHUTH AL-ISLAMIYYA 13-141
(1984).
n26 2 'AWDA, supra note 17, at 647-48.
n27 AHMAD IBN TAYMIYYA, AL-SIYASA AL-SHAR'IYYA FI ISLAH AL-RA'I WA-AL-RA'IYYA
112 (Muhammad Mubarak ed., Dar al-Kutub al-'Arabiyya 1966).
n28 Id. at 114-17. See also 24 MAJMU'AT FATAWA SHAYKH AL-ISLAM AHMAD IBN TAYMIYYA
206 ('Abd al-Rahman Ibn Qasim al-'Asimi ed., 1998); 35 id. at 347, 404; 'ABD AL-'AZIZ 'AMIR, AL-TA'ZIR
FI AL-SHARI'A AL-ISLAMIYYA (5th ed. 1976).
n29 See supra note 22 and accompanying text.
n30 Id.
n31 This is in stark contrast to the careful delineation of hiraba--a contrast that, once again, reveals a basic
dualism in Islamic criminal law. Shari'a juxtaposes two criminal law authorities and two cognate bodies of
criminal law: those of the ruler and his police courts, on the one hand, and those of ordinary shari'a courts, on
the other. These two laws and two jurisdictions, conceptually separate, overlap when, as frequently occurs, they
are exercised by the same judge or tribunal. See supra note 21 and accompanying text.
n32 Board of Senior Scholars (Hay'at Kibar al-'Ulama'), Decision No. 148 (Aug. 24, 1988).
n33 See supra note 22 and accompanying text.
n34 Id.
n35 See VOGEL, supra note 4, at 271-72.
n36 See, e.g., THE ISLAMIC CRIMINAL JUSTICE SYSTEM (M. Cherif Bassiouni ed. 1982) (making
little or no mention of the shurta, or shurta procedural rules, in a survey of the rights, principles, crimes, and
punishments of Islamic criminal law).
n37 The Shafi'i school punishes accomplices under ta'zir. 2 'AWDA, supra note 17, at 668.
n38 Id. at 666. See also 6 'ABD AL-RAHMAN IBN AL-QASIM, AL-MUDAWWANA AL-KUBRA
LI-AL-IMAM MALIK 300-01 (1904). The Maliki school includes even those who "do not order killing or cause
it by any act," as long as their reputation as powerful [jah] implicitly contributed to the event. 2 'AWDA, supra
note 17, at 666.
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43 Harv. Int'l L.J. 53, *
n39 For example, if one killed and another took property, under the majority view all would have to suffer
the punishment for both acts: beheading and gibbeting.
n40 See 6 IBN AL-QASIM, supra note 38, at 301; 2 'AWDA, supra note 17, at 668; 10 IBN QUDAMA,
supra note 17, at 319.
n41 See supra note 35 and accompanying text.
n42 See 1 'AWDA, supra note 17, at 357-79. Ordinarily, one who incites or even commands the
commission of a crime cannot be convicted of that crime, and punishment applies only to the actual perpetrator,
absent lack of moral or legal responsibility or extreme duress.