Ask Amnesty: World Day Against the Death Penalty
This year, the World Day against the Death Penalty (October 10) fell in the Islamic holy month of Ramadan. Read the transcript (below) from our October 10 online discussion with Georgetown Islamic studies professor Najam Haider. Haider discussed the death penalty in classical Islamic law and what can be done to support the trend of some Muslim nations to pardon prisoners during Ramadan.
Najam Haider is an Adjunct Professor in Islamic Studies in
the Theology Department at Georgetown University. He is in the process of completing
his doctoral dissertation at Princeton University which consists of a study
of the origins of Islamic sectarianism with particular emphasis on the city
of Kufa in Iraq. In 2001, he received an MPhil in Islamic historiography from
Oxford University. Najam was a Fulbright Scholar in Damascus, Syria in 1997-8.
From our featured guest: "I look forward to speaking to you on October 10."
Question Submitted by LuAnn C. Kowar:
I won't be available on Oct. 10th, but wonder if you can answer this by e-mail, and, perhaps, touch upon it in your presentation on the 10th... How and when did the structure of Muslim Law come to have an enforceable and punitive component for behavior considered "against" the tenets of Faith? That is, every major religion has doctrines and working-definitions of behavior considered blasphemous or anti-social and inconsistent with the requests for human behavior believed to have been revealed to holy men or women, but all major religions have varied widely over the millenia in terms of taking action against law-breakers. For example, throughout the history of Catholocism, there have been those who literally took up arms against people or groups considered to be preaching or practicing some momentarily-defined "heresy"; thus, Catholicism had its Spanish Inquisition and other, military actions against "heretics", replete with acts of violence in the name of religion. Over the centuries, though, it has become normative that enforcement of doctrine is confined to exclusion of individuals from full-communion(community) with the Church for infractions against moral norms defined within doctrine. The enforcement component is no longer deemed primarily within human province, and supposedly should be left to the Divine will, in the afterlife, within present Catholic thought. What central historical event consolidated an enforcement component for infractions against Islamic law, bringing spiritual pursuits fully into the daily civic life of Believers, and seeming to demand construction of a legal system expected to carry-out retributive justice pertaining to infractions of moral law? Is there anything within Muslim Law that allows for a type of Summit Meeting of Immams to pray about, discuss, and debate the evolution of Islamic Law as enforced within civil societies, and which might allow for re-definition of enforcement standards that would lessen or eliminate the need for retributive justice (in earthly life)? That is, do you see a possible coming-together of Muslim leaders from all around the world, to urge a brand-new system of promulgating moral law, fully consistent with Islamic ideals, but foregoing retributive justice?
Najam Haider answers:
Let's get started...
Dear LuAnn,
Islam is different from Catholicism in that it contains –within the text of the Qur’an – a set of crimes which are judged serious enough to warrant capital punishment. For the most part, these infractions are not based on upholding ‘proper’ belief… While apostasy is a capital offense, the classical jurists made enforcement very difficult as even the slightest doubt (or a denial from the accused) is sufficient to mitigate the death sentence. The majority of cases in which the punishment was carried out (in the medieval period) centered on Sufis who made public statements blurring the line between themselves and God. There were also instances in Moorish Spain where christians would publicly convert to Islam and then apostacize as a symbolic act of martyrdom. Returning to your original question, enforcement is laid out in the Qur’an which Muslims consider the literal word of God so there was never a need to explicitly justify that enforcement. It is considered the duty of society as a whole as a means of maintaining the social good... Muhammad was both a prophet and a head of state so that the roots of the legal system extend back to the earliest periods. The impetus for developing a legal system and a legal methodology stem from a juristic need to deal with new situations.
-----------------------------------------------------------------
Question Submitted by Naila:
I believe that death penalty is awarded to criminals to scare others from committing crimes,but what upsets me is the victims who have either committed a crime in self defence or in a rage of revenge & juveniles who are awarded death a sentence.There should be some law to prevent people without any previous criminal record or petty criminals to be excluded from getting the death penalty.What would you comment?
Najam Haider answers:
According to most schools of Islamic law, capital punishment is only applicable in instances where the attacker was clearly aware of the fact that he/she was committing a crime and that the attack would be sufficient to kill the victim. All other cases are considered "doubtful." In such instances, the death penalty cannot be applied and the case is referred to legislative (as opposed to religious) criminal courts which are not empowered to sentence anyone to death. In other words, if passion to the point of impaired judgement is shown, then it would be difficult to classically justify capital punishment.
In the case of juveniles, it should be understood that societies differ with respect to the legal definition of adulthood. In fact, the Islamic schools of law themselves differ substantially... The majority view is that adulthood begins after a child reaches sexual majority. In recent years, modern states have pushed the minimum age upwards... Minors cannot be punished at all for crimes since they are not seen as rational beings.
-----------------------------------------------------------------
Question Submitted by Raluca:
In the islamic society, are women more affected by the issue of death penalty? Why? In which way?
Najam Haider answers:
Islamic law makes no distinction between women and men in the application of capital punishment. Often cultural norms interfere and we have cases of, for example, honor killings which are retrospectively justified on some islamic basis or another. This has no real foundation in the writings of Muslim jurists.
-----------------------------------------------------------------
Question Submitted by Maddy:
Despite the fact that Islam is a religion that explicitly forbids killings of any kind, what Islamic principles do some justice systems try to use (or pervert) to justify the use of the death penalty?
Najam Haider answers:
While Islam forbids killing of any kind in the course of normal everday life, the death penalty is clearly permissible in certain criminal cases as long as the highest evidentiary standards are met... The perversion of the system stems from a lowering of these standards to fit political ends.
-----------------------------------------------------------------
Question Submitted by Rhoda:
When four witnesses attest to a woman's adultery (a situation easily envisioned in a male-dominated society like Afghanistan), the punishment under Islamic law is death by stoning. Do you believe this is just, and if not, how do you reconcile your view with the Koran and Islamic law?
Najam Haider answers:
Well Rhoda...
1. The punishment is not gender specific... it is equally applicable to both men and women.
2. Stoning is not mentioned in the Qur'an as the punishment for adultery... the Qur'anic punishment in 100 lashes (Q52:2). the use of stoning is based on a Prophetic tradition (always sketchy). Still, the majority legal opinion is that stoning is valid if a married man or women commit adultery.
All this being said... the crime is almost impossible to prove by the evidentiary standards set out in Islamic Law. Specifically, four witnesses of established reputation and high societal standing must attest to actually seeing the point of sexual entry. Circumstantial evidence is not sufficient to justify stoning and neither is pregnancy. It should not be surprising that this standard of proof has produced very few instances of actual enforcement.
I don't see how my personal views on this are relevant but thanks for the question.
-----------------------------------------------------------------
Question Submitted by Fred Leuchter:
Who Chose the mode of execution and is the method ever questioned as being torture or cruel and unusual?
Najam Haider answers:
The issue of cruel and unusual punishment does not arise in most juristic discussions.
With respect to capital offenses:
The general mode of execution for adultery is stoning (though this is not found in the Qur'an).
In cases of apostasy (rare) or armed disturbance of the peace (more common), it is left to the discretion of the state.
In cases of intentional homicide, it is a talion offense which means that - when the heirs of the victim insist - the murderer is killed in the same manner as his victim. These cases garner the most publicity as they can be quite brutal. In some modern instances (Saudi Arabia), they use beheading as a the default mode of execution.
-----------------------------------------------------------------
Question Submitted by Farah:
Is it still true that a woman who is raped is executed?
Najam Haider answers:
Honor killings may occur in some cultural settings but this is wholly against the formal stipulations and principles of Islamic Law.
It is important to differentiate between what "does happen" and what the law says "should happen."
-----------------------------------------------------------------
Question Submitted by Nadia:
I have across the opinion that since capital punishment for apostasy was introduced for a situation specific to the early Muslim community of Medina, a revision of that stance would be Islamically acceptable. It seems as if there was a trend amongst those hostile to Islam to declare Islam specifically with the intent of renouncing it afterwards. Can you comment on that situation and possibility of revising the law on this point?
Najam Haider answers:
Dear Nadia,
Thats an interesting point. As you know, a number of Medinans converted to Islam pragmatically when the Prophet migrated to the city in 622. These are generally referred to as the Hypocrites. There is little indication, however, that these folks were the targets of the apostasy rules...
I also mentioned above that the practice of conversion and then public apostasy was used by a series of martyrs in Muslim Spain. These were religio-political acts of resistance intended to send a message to the Muslim rulers of the time.
-----------------------------------------------------------------
Question Submitted by Matthew:
I assume since this discussion is hosted by Amnest, you'll argue that Islam does not advocate the death penalty. Is this assumption correct?
Najam Haider answers:
Hey matthew,
Amnesty asked me to talk about the death penalty in Islamic Law and that's what I will do... It is clear to anyone with a basic knowledge of Islamic law that the death penalty is permissible in a number of controlled instances.
-----------------------------------------------------------------
Question Submitted by Marcelle:
What is the best "method" or tack to take when trying to convince someone that the death penalty should be abolished. There must be someone who has been "pr" death pentaly and has changed their minds . . . what works to move others to be against it?
Najam Haider answers:
I'm not sure you can convince a knowledgable committed Muslim that the death penalty should be "abolished" as it is clearly permissible in the Qur'an and Islamic law. The best strategy to adopt may be to emphasize the incredibly high standard of evidence which makes *enforcement* virtually impossible. The tenor of the Qur'an is clearly in favor of mitigation of these punishments in the slightest instance of doubt.
-----------------------------------------------------------------
Question Submitted by Brian:
Under Islamic law, what kind of evidence is required for a death penalty case? Can someone be executed based only on a confession, or is more evidence necessary?
Najam Haider answers:
Good question.
The evidentiary burden necessary to allow for a capital sentence is extremely high. There must from 2-4 eyewitnesses with impeccable reputations (no previous infractions of any kind) who can testify on multiple occassions in identical manners on the details of the alleged crime. Alternatively, a confession may be used but if - at any time prior to execution - the confession is recanted, the death sentence is void.
It must be established that the accused was fully aware of the law. In the case of homicide, he must be shown to have used a weapon likely to lead to death against a part of the body which (if struck) was likely to cause death given his physical condition. Other crimes have even more rigorous parameters which must be established.
Finally, it must be shown that the crime was committed by a single individual. Group crimes cannot result in a capital sentence.
After the conviction there are other conditions which must be met before an execution may be carried out.
-----------------------------------------------------------------
Question Submitted by Leigh:
How can anti-death penalty groups in the USA reach out to Muslim communities? What are the opportunities for collaboration around the death penalty issue?
Najam Haider answers:
I honestly believe that the best way to outreach on this issue is to emphasize the fact that the Qur'an and the legal system are extremely weighted towards insuring that no innocent person is ever subject to a capital punishment.
-----------------------------------------------------------------
Question Submitted by Nadia:
The use of stoning to punish adultery is almost always discussed as a women's rights issue. Are significantly more women than men punished under this law? I have not come across any reports of men being punished under adultery laws - do you know of any instances?
Najam Haider answers:
To be honest, cases of actual stoning are extremely rare regardless of gender. The sentences are often overturned in places like Egypt and Pakistan. In recent years, however, as evidence standards have fallen there has been a disturbing trend towards enforcement with tribal councils in Northern Pakistan and Afghanistan leading the way.
I want to emphasize again that women do suffer unfairly (under any legal system including the Islamic system) as a result of cultural norms in many tribal societies.
I have heard of "fornication" penalties which are not punishable by death if the accused are unmarried being enforced on men and women in Iran... and even one discreet case in New Jersey.
-----------------------------------------------------------------
Question Submitted by Zahir (Amnesty Staff Member):
In countries like Saudi Arabia, many of those who are on death row are non-citizens such as foreign laborers. What form of protection--if any--is granted to non-citizens according to classical Islamic law? What protection do they have against accusations leveled against them by citizens?
Najam Haider answers:
Thats a great question...
There should be no disparity in treatment between foreign workers and citizens. In the real world, however, the Saudi system seems strongly weighted against the rights of foreign workers. It seems that the evidence standards for the conviction of foreigners is much lower than for citizens and the use of coerced confession (wholly unislamic) is rampant. There have even been cases where confessions are written out by thepolice in a language that a laborer does not speak which is then used to justify capital punishment... All of these methods cut against the very grain of the islamic legal system.
I should also mention that Islamic law encourages the heirs of victims to forgive criminals and accept blood money as opposed to demanding retributionary killing... but in the case of foreigners, this mercy alternatives is rarely - if ever - encouraged by the government.
-----------------------------------------------------------------
Moderator's comment:
Thanks, Najam, for being our online discussion guest today. And thanks to everyone for participating. Keep checking these pages for updates on our upcoming discussions.
- Milo
-----------------------------------------------------------------
