On December 19th 2013 Amnesty International released a briefing titled “Rule of Fear: ISIS abuses in Detention in Northern Syria.” As usual with reports by Western based humanitarian agencies, this was regarded as controversial by a large number of pro-ISIS accounts on social media. A majority of them referred to Shari’a and the Islamic penal judicial system. In this post I will briefly report about Hudūd and Ta’zīr , traditional Islamic penal law.
The report by Amnesty International: here
It is not the intention to shed any doubt on the veracity of the Amnesty report nor to make any statement on whether or not ISIS follows Hudūd and Ta’zīr to the letter. This post is about Hudūd and Ta’zīr as they should be interpreted strictu sensu.
Hudūd and Ta’zīr
This text will only provide an outline of these two categories of crimes, for full detail I recommend reading chapter six of Frank E. Vogel’s Islamic Law and Legal System.
In Islamic criminal law doctrine a division is made between two major types of crime. The first type are those crimes on which the Qur’an and Sunna lay down specific penalties, called Hudūd (from the Qur’anic term for God’s “limits” حدود), singular Hadd (حدّ) . The second category of crimes is called Ta’zīr (تعزير), meaning prevention, correction, or chastisement. This is a catch-all category covering all other sinful acts. The main difference between both categories is that Hudūd are strictly and narrowly regulated by Fiqh whereas Ta’zīr are scanty, largely consisting of a delegation to the ruler of authority to define and punish these crimes in furtherance of communal welfare. Moreover Hudūd crimes have severe penalties, but are extremely hard to prove; Ta’zīr punishments are lighter, but the proof is flexible, and the procedure isn’t so fastidious.
The Hudūd are usually enumerated as the following crimes: adultery (Zina), theft, wine-drinking, slander involving imputation of adultery, brigandage and apostasy. Two verses in the Qur’an lay down the penalties for theft and adultery:
Now as for the man who steals and the woman who steals, cut off the hand of either of them in requital for what they have wrought, as a deterrant ordained by God: for God is almighty, wise. But as for him who repents after having thus done wrong, and makes amends, behold, God will accept his repentance: verily, God is much-forgiving, a dispenser of grace. [5:38-39]
As for the adulteress and the adulterer – flog each of them with a hundred stripes, and let not compassion with them keep you from this law of God, if you believe in God and the Last Day; and let a group of believers witness their chastisement. [24:2]
Other Hudūd punishments are equally severe; for apostasy death by beheading; for brigandage (highway robbery), either death (sometimes followed by crucifixion), cutting off one hand and the opposite foot, or exile; for slander, eighty lashes; for wine-drinking, either forty or eighty lashes. Yet, Hadith offer accounts of the Prophet himself discouraging these; he reportedly said:
He who has committed [a Hadd], let him cover himself with the covering of God, and let him repent to God. For on him who reveals to us his deed we will enforce the Book of god.
Another cardinal rule states the Hudūd are to be defeated by doubt, whether doubt as to the identity of the offender, as to the substance of the crime, as to the availability of an excuse, or any other ground:
Repel the Hudūd from the Muslims whenever you can. If there is for him an escape, let him go free. It is better for the ruler (Imam) to err in pardon than to err in punishment. And If the hadd is in doubt, repel it.
In general one can say that if the offender repents about his crime the punishment will not be fulfilled. An example: After one Ma’iz came to the Prophet and confessed adultery; he was turned away by the Prophet three times. Finally, after his fourth attempt to confess, the Prophet asked:
‘Is he mad ?’ He was informed that he was not mad. He said, ‘Has he drunk wine?’ A man stood up and smelled his breath but found no smell of wine. Thereupon the Messenger of God said, ‘Have you committed adultery?’ He said, ‘Yes’. He commanded that he be stoned to death.
When Ma’iz felt the first stone he tried running away but he was pursued and killed. When later the Prophet heard of this, he lamented, ‘Why did you not leave him! Perhaps he would have repented, and God forgiven him.’
Another important element of Hudūd is that most of them, in absence of confession, each require at least two acceptable eyewitnesses to all the elements of the crime. The Hadd of slander even requires four eyewitnesses. To proof the Hadd of wine-drinking (punished by forty lashes) usually requires two witnesses smelling the alcohol on the breath of the perpetrator. These strict requirements mean that in many cases anyone accused of Hudūd crimes must bring the penalty on himself by willing confession (this must indeed be always the case in stoning for adultery).
An overview of Hudūd crimes:
- Theft (Sariqa, السرقة)
- Highway Robbery (Qat’ al-Tariq, قطع الطريق)
- Illegal sexual intercourse (Zina’, الزنا)
- False accusation of zina (Qadhf, القذف)
- Drinking alcohol (Shurb al-Khamr, شرب الخمر)
- Apostasy (Irtidād or Ridda, ارتداد أو ردّه) includes blasphemy.
The second category of crime is called Ta’zīr , ‘moral correction’ or ‘chastisement’. It is the least developed type of crime in law, but by far the most extensive in application. Ta’zīr covers all crimes for which no specific penalty is set by Shari’a. Crime for Ta’zīr purposes is defined as either an act that is a sin (ma’siyya), meaning something definitively forbidden in Shari’a, or an act that is declared punishable by the ruler as harmful to the interests of society. Prosecution for Ta’zīr can be easier as not all of the procedural stringencies apply as for Hudūd.
Fixing the penalty in Ta’zīr crimes is left to the discretion of the ruler, or delegated to a judge. It is tailored to suit the interests of the offender and society. The purpose of Ta’zīr is wholly utilitarian, but, of course, religious utility is weighed with the secular: the utilities considered are the moral correction of the offender and the deterrence of similar crimes. Therefore three points are considered in fixing the penalty: the seriousness of the crime , the character of the offender, and the social need for deterrence.
Standard Ta’zīr penalties are lashing, scolding, public humiliation, cuffing, imprisonment and fines. Lashing in Ta’zīr is not meant to be severe: although it causes bruises, it must not break the skin; the lasher’s arm should not be extended, only cocked; the lash must be of moderate size. Lashing is excluded if it entails any risk of permanent injury or death. The maximum corporal penalty in Ta’zīr is disputed between the schools of jurisdiction. For some the limit is ten lashes; others require the Ta’zīr to be less than the lightest punishment given any Hadd crime (between twenty, forty, and eighty lashes); others that it be less than the Hadd crime of the same genus. There are certain specified Ta’zīr crimes, that are subject to death penalty. Examples are sorcery, propagandizing for heresy, or spying by a Muslim for infidels.
Very often a third category of crime is mentioned; Qisās (قصاص), the punishment for murder and infliction of bodily harm. Fiqh actually treats these acts not as crimes to be prosecuted by the state, but more as intentional torts that give rise to civil claims to be prosecuted at the will of the victim or the victim heir’s. their claim is for retaliation in kind, an eye for an eye, if possible; or, if it isn’t possible, the payment of indemnity (Diya) fixed by Fiqh. The claimants may forgo retaliation against an agreed compensation or forgive the offender all together, a step which then obviates any punishment at all of the perpetrator.
As mentioned before it is not the intention to compare the cases mentioned by Amnesty International with traditional Islamic penal laws; but here are some of the cases reported.
1. According to former detainees interviewed by Amnesty International, ISIS guards and interrogators frequently torture detainees, particularly by beating them with generator belts, thick pieces of cable, sticks or other implements. They also subject detainees to a method known as the aqrab (scorpion), in which they are forced to remain in a contorted stress position – according to which they have one arm folded behind the back with the hand uppermost while their other hand is made to reach over one shoulder so that their wrists can be handcuffed together – for long periods, inducing severe pain and possible long-term muscular or other damage. In one case, a former detainee told Amnesty International that he was tortured with electric shocks and beaten with a cable while suspended with only one foot touching the floor. Three out of 10 former detainees whom Amnesty International interviewed said they had been held in solitary confinement for part or all of their detention. Former detainees also described seeing fellow inmates subjected to flogging by guards, sometimes on the orders of a man who acts as a judge in the Shari’a court in al-Mansura. Some detainees are also alleged to have been executed on his orders.
2. ISIS had declared the smoking of tobacco to be haram, and the ISIS guards threatened the detainees and subjected one to a flogging after one of them opened the cell door and smelled tobacco smoke. “He shouted loudly ‘smoking, smoking’ and left hurriedly and returned with others. They searched the room but didn’t find any cigarettes. They asked repeatedly who had smoked. We all had, but we remained silent. Then one guy came forward and said it was him who smoked. They ordered him to sit on his knees and tied his hands to the back. Then a Chechen man came and spoke to us in formal Arabic, saying, ‘You are thieves and you should be killed.’ The Chechen man ordered the confessed smoker to stand up and he slapped him hard on the face. A Moroccan jailer held the Chechen’s arm and they went outside and spoke for around a minute. They came back and the Chechen said, ‘Religiously I cannot hit you on your face.’ He then took a whip and flogged the detainee four times on his back. Every time, he whipped him, the Chechen jailer would raise his arm until his armpits showed before hitting hard.”
3. “The first child, aged 13 to 14, was accused of stealing a motorcycle. He was detained for around four days and each day he was flogged up to 40 times. After admitting to stealing the motorcycle, [the Shari’a court judge] told him he’d send him the following day to bring the motorcycle from its hiding place. The boy said, ‘Let me do it today.’ [The judge] refused. The boy insisted, saying, ‘Why not today?’ [The judge] would get angry easily… He shouted at the boy to come forward, ordered him to lie on the ground and he whipped him with a cable around 30 to 40 times.” Another child of around the same age was held for about a week at Sadd al-Ba’ath, where his captors inflicted 30 to 40 lashes on him each day. One former detainee recounted: “Once, after being flogged to give names of others who had helped him in the thefts, the boy gave them the name of someone from ISIS whom they brought to Sadd al-Ba’ath and flogged, and it turned out that the boy was lying. He was then flogged many, many times.” Another detainee held there at the time described the same incident and said: “I counted 94 lashes falling on this child… and then I could count no more.”
I will leave it to the reader’s discretion to compare the few cases mentioned to Hudūd an Ta’zīr as explained before …
Update March 22nd, 2014
A man was executed and his body crucified for 3 days in ar-Raqqa, Syria. ISIS hereby applied the Hudūd in a very strict sense. See the Hadd for brigandage above (حدّ قطع الطريق)
Update dd January 10 2015:
For the first time ISIS implemented the Hadd for brigandry (graphic)
Frank E. Vogel – Islamic Law and Legal System – Studies of Saudi Arabia, Leiden, 2000