Introduction
The World was shocked at the "viciousness and
barbarity" (President Obama) glorified in the video showing Lt. Muath
al-Kaseasbeh, a Jordanian Pilot, being burnt to death in a cage by ISIS
(03/02/15). Muslim scholars and leaders unanimously condemned the act, including
even the extremist terrorist organisation Al Qaeda (see here). As a defence ISIS’s al Eftaawa al-Buhuth
released a document to justify their actions, which reads:
'
“Question: What is the ruling on burning the unbeliever with
fire until he dies?Answer: The Hanafis and Shafi’i’s have permitted it,
considering the saying of the Prophet ‘fire is only administered by God’ as an
affirmation of humility. Al Muhallab
said: ‘this is not an absolute prohibition, but rather on the path of
humility.’Al Hafiz ibn Hajar said: “what points to the permissibility
of burning is the deeds of the Companions, and the Prophet put out the eyes of
the Uraynians with heated iron while Khalid ibn al Waleed burnt people of those
who apostatized.”And some of the people of knowledge have been of the opinion
that burning with fire was prohibited originally, but then on retaliation it is
permitted, just as the Prophet did to the people of Urayna, when he put out the
eyes of the Uraynians with fire in retaliation – as is related in reliable
traditions, and this brought forth the words together among the proofs.”
This article looks at each justification given and the video
itself to show not only that ISIS contradicts Islamic Law and Islam generally,
but ISIS’s greatest enemy to their tyranny is Islam itself!
Authority of evidence
and Islamic Criminal Law
Before looking in detail at each point, some of the
principles of Islamic jurisprudence needs to be identified.
The agreed upon primary sources of Islamic law are the
Qur’an, Sunnah (Prophetic example), qiyas (Analogical reasoning) and ijma’
(scholarly consensus), there are other secondary evidences for which scholars
differ in the extent of their use, such as Ihstihsan (equity/fairness)
and maslahah mursalah (public interest). The Companions and their followers differed
as to how the evidences interact and so different approaches to interpretation
formed as specific schools, of which four Sunni Schools remain in use today:
Hanafi, Maliki, Shafi’i and Hanbali.
Sunnah (lit. clear path) is the Prophetic example and
technically means all that is narrated from the Prophet, his acts, his sayings
and whatever he tacitly approved. Hadith (narration), which are sometimes
incorrectly considered synonymous with Sunnah, differ in that a hadith is a
recorded narration for which the Sunnah can be derived i.e. by themselves in
isolation a hadith is not Sunnah but rather make up a collective body which are
compared and contrasted to derive the Sunnah.
Khabar (lit. news or report) normally refer to legal precedents set by the companions; as those
closest to the Prophet, their teaching and practice are also a source of
Sunnah. All narrations consist of an isnad (chain of transmission) and a
matn (text), both of these are analysed for authenticity and legal
implication. Hadith from the Prophet take
precedence over the companions of the Prophet, such as the four Caliphs
(successors), just as they in turn take precedence over other companions, similarly verbal commands of
the Prophet take precedent over his actions.
Ahad (single) narrations are those that come through
one chain of transmission (isnad) and differ to mutawatir (mass
transmitted) or mashhur (wide spread) narrations, which come from
multiple sources. Generally ahad
reports are not authoritative by themselves since they are speculative and are
only accepted if corroborated by other sources since two witnesses (2:282) are
required as proof in Islamic Law. In addition the guiding principle of Islamic
Law is the maxim: ‘Certainty is not lifted by doubt’ (see also 49:6 and 53:28)
not only in deriving law but in proving crimes.
All criminal acts are dealt with through the due process of
law in a court with careful scrutiny of the evidence by one or many official
judges (qadi). There are two types of punishment in Islamic Law: hadd and ta'zir.
Hadd means prevention and is the uppermost punishment
allowed for some specific crimes, which are: murder, theft, adultery and
fornication, unsubstantiated accusations of adultery, drunkenness,
brigandage and rebellion. Each of these crimes have been mentioned
in the sacred texts explicitly with prescribed punishments and burdens of
proof. For example theft has the uppermost punishment of severing of the
hand and requires that a sane adult with intent to steal covertly takes an item
of substantial value from behind a locked door that was witnessed by two
upright people. Failure to meet the defined criteria satisfactorily
results in the uppermost punishment (hadd) being lifted and
the lesser discretionary punishment (ta’zir) being applied if the defendant is found guilty.
The judge is obliged to
look for doubt in order to lessen the sentence: "Prevent the application of hadd punishments because of
ambiguity" (Ibn
Adi narrated by Ibn Abbas). Islamic Criminal Law's appearance of severity
is understood to deter and raise awareness of God's distaste for
those crimes but its application of mercy is to suppress criminality rather
than enact retribution; severely punishing only the most flagrant
disregards of the law. “That some fixed penalties were not or only
rarely enforced does not mean that the provisions of the law of hadd offences
had become obsolete, but only that these provisions were so strictly applied
that the conditions for a conviction were rarely met” (Peters, 2005, pp 75).
Peters R,
2005, Crime and Punishment in Islamic Law, Cambridge University Press, New York
USA
Further reading: Kamali M H, 2006, Principles of
Islamic Jurisprudence, Islamic Test Society, Cambridge UK
Healing the breasts
of the believer
The name ISIS give the video comes from a Qur’anic verse, which
reads:
{Fight them:
God will punish them at your hands, He will disgrace them, He will help you to
conquer them, He will heal the believers’ feelings}[9:14]
It is beyond the scope of this post to go into the details
of jihad (see:Kelsay, 2007), however
this verse has no general meaning and no legal application since it relates
to the specific historical event of the Covenant of Hudaybiyyah (628 CE) signed
between the fledgling community of Medinah with the pagan Mekkans (mushriku l-`arab):
{with whom you made a treaty at the Sacred Mosque} [9:7].
The pagan Arabs had broken the covenant of peace
{they respect no tie of kinship or treaty. They are the ones who are committing
aggression} [9:10] {who attacked
you first} [9:13], despite the pagans’ continuous deceit the early
Muslim community was still asked to forgive them should they join them {then they are your brothers in faith}
[9:11]. The Muslims are reminded of the pagan’s treachery exhorting them to rise
up despite their fears {Do you fear
them? It is God you should fear} [9:13] and God will enact Divine punishment {at your hand} [9:14] rather through a
miracle such as the Earth swallowing them up etc. and then God will personally sooth
their hearts removing the anguish of years of tyranny inflicted by the
pagans. The objective of jihad is given previously {so that they may stop} [9:12] not for
vengeance, so the whole affair was for the community’s betterment to remain
steadfast and to purify their intention for God alone and not revenge (see:
Usmani, 2006,vol 4, pp 320-323).
ISIS imply that their action of ‘retaliation’ is soothing; a
soothing through vengeance. This
completely inverts the collection of verses since the soothing is due to their
patience and steadfastness, it is a lesson to inspire faith, similar to other
verses such as: {So truly where there is hardship
there is also ease} [94:5].
Kelsay J,
2007, Arguing the Just War in Islam, Harvard Uniersity Press, USA
Usmani M
S, 2006, Ma’ariful Qur’an, Maktaba e DarulUloom, Karachi
Ibn Taymiyyah
At the end of the video the 14th century reformer
ibn Taymiyyah (d. 1328) is quoted:
If in public exemplary punishment (tamthil) there is a call to [the unbelievers]
to believe or a deterrence for them from hostility, then it is here [a matter
of] carrying out the prescribed punishments and legal jihad.
Tamthil is a general word coming from the root m-th-l
and means mutilate, maim, punishment and retribution, it has no direct
connection with immolation. The argument
ibn Taymiyyah is making is a pragmatic one; in war time Muslims may retaliate publically
as a deterrence for further hostility, such as executing captives at the gates
of a besieged town to coerce the city to capitulate and thus end further loss
of life. He is not saying it is a
religious obligation, nor is he promoting vengeance or retaliation, rather he
is re-emphasising the objective of jihad to stop further hostility (see 9:12
above).
ISIS have used ibn Taymiyyah to try and give credibility to
their actions, but the dramatised horror video of vengeance cannot qualify as
the stratagem of war that ibn Taymiyyah alludes especially with Jordan’s avowed
retaliation of ‘grave consequences’ should Al-Kaseasbeh be harmed (see here).
The Hanafis and
Shafi’i’s have permitted it
ISIS claim that two of the classical schools of Islamic
Jurisprudence have permitted immolation as a mode of punishment. However, ISIS
have grossly misrepresented classical scholarship to try and legitimise their
actions as part of Islamic Law.
The Hanafi and Shafi’I Schools consider immolation as
impermissible, for example the only method of execution permitted in the Hanafi
School is with a blade (see below). What
both Schools do permit, however, is during a war Muslims may attack with fire
and projectiles.
I [al-Shaybani] asked: ‘would it be permissible to inundate a city in
the territory of war with water, to burn it with fire, or to attack [its
people] with mangonels (a type of catapult) even though there may be slaves,
women, old people and children in it? He
[Abu Hanifa, namesake of the Hanafi School] replied: ‘Yes, I would approve of
doing all of them.’ I asked: ‘Would the same be true if people have among them
Muslim prisoners of war or Muslim merchants?’ He replied: ‘Yes, even if they
had among them [Muslims], there would be no harm to do all of that to them.’ I
asked: ‘Why?’ He replied: ‘If Muslims stopped attacking the inhabitants of the
territory of war for any of the reasons that you have stated, they would be
unable to go to war at all, for there is no city in the territory of war in
which there is no one at all of these you have mentioned. (Shaybani’s Siyar, 1966, pp 101-102)
The student, al-Shaybani (d. 805 CE), is asking whether what
is normally morally objectionable can be permitted in war, his teacher Abu
Hanifa (d. 767 CE), answers in the affirmative due to it being the lesser of
two evils. What should be noted here is that Abu Hanifa (the Shafi’is concur) permits
attacking the building with fire due to a need, which may regrettably lead to loss
of non-combatant life, but the people are not purposefully attacked with fire
for this is impermissible.
Ibn Rushd (d. 1198) in his work Bidayat al Mujtahid,
a book to prepare a jurist for independent reasoning, writes:
The proscription of mutilating the bodies of the enemy is fully established. The Muslim jurists agree on the
permissibility of slaying them with weapons, but disagree about burning with
fire. A group of jurists disallowed burning them with fire or even attacking
them with it, and this is the opinion of ‘Umar (the second caliph) and is also
narrated from Malik (namesake of the Maliki Law School). Sufyan al Thawri permitted this, whilst some said: ‘if the enemy initiates this it is
permitted, otherwise not.
The reason for their disagreement stems from the conflict of a general
implication with a specific meaning. The generality lies in the words of the
Exalted, {slay
them wherever you find them}[4:89]. This does not make an exception for
any kind of slaying. The specific implication was established when the Prophet
(pbuh), said about a man, ‘If you find so-and-so, kill him, and do not burn him, for
no one punishes with fire except the Lord of the fire.’ (Abu Dawud, No.
2673),’ (ibn Rushd, vol 1, pp 460).
Ibn Rushd is academically encompassing all of Sunni thought
on this point. The overwhelming majority
of scholars including the Four Orthodox Schools of Sunni Islam, Hanafi, Maliki,
Shafi’i and Hanbali (for which ibn Taymiyyah is a student), all consider the
deliberate use of fire against humans and animals, both in war time or peace,
as forbidden. However a minority permitted it such as al Thawri, (d. 778) namesake of
the now extinct Thawri School, although he only meant on the battlefield, since
he views killing captives as impermissible; taking the general meaning of: {and once they are defeated, bind any captives
firmly––later you can release them by grace or by ransom––until the toils of
war have ended} [47:4] to be definitive (al-Qurtubi, 16:227). Ibn
Rushd likewise records earlier a consensus (ijma’) of the companions against
executing prisoners of war (Vol 1, pp. 456).
Al Thawri is making a jurisprudential argument that the generality of
the verse interprets any specificity from the hadith (narrations), this is an
approach to interpretation, which if applied would have to be consistently
applied thus rendering ISIS’s actions completely beyond any form of coherent
interpretation.
Directly burning combatant enemies during war time is
forbidden (haram) or at the very best very doubtful (shubuhat),
such that any religiously scrupulous person (wara’) would avoid it; “he who guards against doubtful things keeps his religion and honour
blameless, and he who indulges in doubtful things indulges in fact in unlawful
things” [Muslim, No 1599]. If taken as permissible it could never be
applied to captives because that approach to interpretation would contradict it. Islamic Law cannot be considered to be characterised
as using burning as a punishment. Whilst
it may be argued at the extreme end that burning enemy soldiers is not
punishable in the hereafter it is unanimously considered morally wrong. ISIS,
who claim to implement Islam, have made no attempt to represent Islamic Law or
Islam and have taken shubuhat and contradictory decisions to implement
viciousness and cruelty.
Al-Shaybani
M trans. Khadduri M, 1966, The Islamic Law of Nations: Shaybani’sSiyar, John
Hopkins University Press, USA.
Ibn
Rushd, trans. Nyazee I A K, 1996, The Distinguished Jurist’s Primer, Garnet
Publication Ltd, Reading UK
Al Muhallab said:
‘this is not an absolute prohibition, but rather on the path of humility.’
The well known (mashhur) hadith ‘no one punishes with fire except the Lord of the fire’
is explained away by quoting an early theologian Al-Muhallab as recorded by Ibn
Hajar (d. 1449), whose position is augmented with reports of the Prophet putting out the
eyes of the ‘Uraynians with heated iron rods and some of the companions burning
people during their respective reigns as caliph.
Al-Muhallab as a theologian during the initial phase of the
Sunni / Shia split, he is not setting legal precedent, but defending the Sunni
theological position that the caliphate of Abu Bakr was valid, did not usurp
the throne from ‘Ali ibn Abi Talib, and he was free of corruption. But even so these ahad (single) reports (khabar) of
Abu Bakr’s alleged burning of Iyas bin Abdullah bin Abd Yalil for treachery are unanimously
rejected by Sunni jurists, for example ibn Hajar in Lisan al-Mizan, the same
scholar who records Al-Muhallab’s statement, records one of the narrators in the chain of transmission (isnad) as
discredited (munkar). Likewise the reports of the companion Khalid ibn Walid’s
alleged burning of Khalid ibn Nuwayra are considered equally fabricated; ibn
Hibban (d. 965) considering a narrator a ‘liar’ (see here). Not mentioned by
ISIS is the incident of the fourth caliph Ali ibn Abi Talib allegedly burning
members of the fanatical Saba’iyyah, which also on closer inspection have no
application in Islamic Law (see here). Whether these ahad (single) reports
actually qualify as historical events is highly dubious and they certainly have
no credibility in Islamic Law, but perhaps what is most telling is that ISIS
are using these narrations commonly found in Shia polemics to justify their anti-Shia
violence!?
The ‘Urayna incident is also considered a political
invention, most likely by the hugely unpopular Ummayyad’s (651-750 CE) to
justify their pre-Islamic style violence upon their foes. Of the conflicting
reports, one such, is that recorded by Ibn Kathir in his commentary of 5:33-34 (here);
the tribe of ‘Urayna came in poor health seeking a cure and so were sent with
provisions to an area outside of Madinah with a shepherd boy. The ‘Urayna
tortured the boy by putting thorns in his eyes, crucified him and stole the
provisions. After the bandits were seized they had limbs amputated, were
blinded and were crucified. Of those scholars that have entertained the
reports, their explanations have differed: some said 5:33-34 was revealed to
abrogate the Prophet’s retaliation with the proper punishment or reprimanded
him for using mutilation (muthla), something prohibited in Islam, or the
‘Urayna were blinded only as retaliation (qisas – see below) or that he had
intended to retaliate but refrained when 5:33-34 was revealed (el Fadl, 2006,
see ‘The Hiraba Verse’).
ISIS’s use of the ‘Urayna incident and 5:33-34 implies they
considered the pilot a muharib (bandit). Harabah (for which muharib
derives) linguistically means to quarrel and to fight, in Islamic Law it
technically means to openly take away property with the threat of force and
includes crimes such as: highway robbery, pillaging, high treason and banditry. The verses outlines the prescribed four punishments
for a muharib: execution, crucifixion for which they mean execute and leave
hung up ignominiously, cross amputation of a foot and hand, and banishment. The
Malikis said the prescribed punishment is at the judge’s discretion, whilst the
other schools gave each specific crime a specific punishment; the murderer and
looter is crucified, the murderer only is executed, the looter receives cross
amputation and a bandit that did neither is imprisoned or banished. The burden
of proof for which is either confession or two upright witnesses who were not
the victims (Anwarullah, 2006). Clearly
the pilot does not qualify as a muharib for he was not an outlaw in a
tribe of bandits that lived outside the city raiding the inhabitants, nor did
he receive the prescribed punishment and most likely did not receive the
prerequisite trial and the due process of law. As such, the ‘Urayna incident is
then proof against ISIS, if we accept the narrations as historically accurate,
since it has been recorded as a criticism for not following the Law. In fact
the ones guilty of harabah in the eyes of Islamic Law are ISIS
themselves (see here)!
El Fadl, K A, 2006, Rebellion and Violence in Islamic Law,
Cambridge University Press, UK
Anwarullah, 2006, The Criminal Law of Islam, Kitab Bhavan,
India
Burning in retaliation
The video is edited such that the pilot’s burning is cut
with shots of the victims of Jordanian airstrikes. The implied meaning is that
the burning of the pilot and his subsequent burial under rubble is retaliation,
known as qisas.
The general rules of qisas (retaliation) is outlined
in the verse {Let harm be requited by an equal
harm, though anyone who forgives and puts things right will have his reward
from God Himself––He does not like those who do wrong} [42:40] and
[2:178]. It is similar in characteristic
to the Biblical ‘an eye for an eye’ (Exodus 21:23-25, Matthew 5:38) which
permits retaliation through the legal process of law (see 17:33), but includes
the additional caveat that forgiveness is considered preferable. In addition the verse has used the same word
(sayyi’ah) for both the crime and its punishment implying retaliation is
a wrong, but the lesser of two evils.
Punishments for homicide include: retaliation (qisas)
by execution, discretionary punishment (ta’zir), blood money (diya)
or pardon (‘afw) and these depend on the nature of the homicide; whether
intentional murder, unintentional homicide by intentional bodily harm or
accidental homicide and the additionally includes the decision of the victims
heirs. The burden of proof may take
place when the one who gave the killer blow is proven without doubt to have intentionally
killed the victim through confession or by the testimony of two upright
witnesses seeing the murder take place, any doubt removes the death penalty
although the defendant may still be liable for the lesser punishments depending
on the details.
The manner of execution in the Hanafi and Hanbali Schools is
only with a blade: “there is no retaliation except with the sword” [Ibn
Maja no. 2668] because the loss of life is re-paid with loss of life not the
manner in which the murder was committed.
The Maliki and Shafi’i Schools use 16:126 and 2:194 to justify that
execution takes the mode of the murder except if it would cause ‘protracted
torture’ and then a blade is used (Peters, 2005, p 37). Burning therefore is not permitted in qisas
(retaliation) cases amongst the Four Orthodox Schools of Islamic Law
contradicting the claims of ISIS. Ibn Hazm (d. 1064), of the now extinct Dhahiri School,
however in Al Mullah does identify burning to death as the retaliation (qisas)
for intentionally burning a victim to death, taking the generality of the verses
to retaliate without limit. However, the practicalities of requiring the exact
replication of the mode of murder is just one example of why the Dhahiri School
was criticised and fell out of favour.
The case of the Jordanian pilot could not be identified as qisas
since it is for murder cases within a state during peace time and not during
war, which is what ISIS claim. Even if
we hypothetically assume it was, then retaliation by execution could not be
carried out since there would be too many doubts as to whether the pilot
actually premeditatedly intended to kill those people (whom he’d never met)
especially using projectile weapons since their result is probabilistic unlike
a sword to the heart etc.
During war time proportionate responses are permitted,
although it is expressly described as better to avoid the cycle of retaliation:
If
you [believers] have to respond to an attack, make your response proportionate,
but it is best to stand fast.[16:126]
As Suyuti (d. 1505) in his commentary, Al Jalalayn, of the verse writes:
After Hamza [b. ‘Abd al-Muttalib] had been killed and mutilated, and
the Prophet (s) had seen him and said, ‘Verily I will mutilate 70 of them for
you’, the following was revealed: And if you retaliate, retaliate with the like
of what you have been made to suffer; and yet if you endure patiently,
[refraining] from revenge, verily that, namely, [that] enduring, is better for
the patient. Thus the Prophet (s) refrained [from taking revenge] and made
atonement for his oath, as reported by al-Bazzar.
This relates to armed conflict only and not captives, as
stated above the permissibility of executing captives is highly contentious in
Islamic Law and the burning of which is absolutely prohibited. The verse used as justification for, proves
to be justification against; Islamic Law is built on fair justice and is
augmented with mercy and forgiveness.
ISIS’s actions show they are quick to seek revenge using the most brutal
and vicious methods even if contrary to Islamic Law.
Peters R,
2005, Crime and Punishment in Islamic Law, Cambridge University Press, New York
USA
Further
reading: Ibn Rushd, trans. Nyazee I A K, 1996, The Distinguished Jurist’s
Primer, Garnet Publication Ltd, Reading UK, especially Vol 2 pp 478-521
Conclusion
ISIS claim they are an Islamic State and so presumably are subject
to Islamic Law and manifest a form of Islam, albeit an extreme one. However,
just from the evidence presented here ISIS are in complete contradiction of
both. Summarising the errors of ISIS’s video and al Eftaa wa al-Buhuth’s
reasoning, they have: applied specific verses generally and anachronistically used
mushrikiu al 'Arab (pagan Arabs of 7th Cent.) incorrectly to apply to
anyone; inverted the meaning of Qur’anic verses by referring to them in
isolation; misrepresented ibn Taymiyyah and the Hanafi and Shafi’i Schools
respectively to justify the immolation of prisoners of war for which all
consider prohibited (haram); used apocryphal tales of caliphs and sectarian
polemics as sources of law yet both have no authority and are in express
contradiction to that which is clear and authoritative; and mix up the punishments and alleged crimes of Islamic Law. ISIS have not only misrepresented
and broken Islamic Law, but work on a completely counter principle to Islam itself;
cruelty and harshness over patience, steadfastness and mercy.
Some commentators, such as ‘What ISIS Really Wants’ by G
Wood (here), have claimed that whilst ISIS manifests an extreme form it ‘is, however, a form of Islam that the
literal-minded would not instantly find hypocritical, or blasphemously purged
of its inconveniences.’ The ‘genius’ of ISIS is they bypass the
complex intellectual endeavours of Islamic scholarship and instead tell stories
to capture the imagination of the disaffected youth. All the clear authoritative evidence against
them can be bypassed with spurious tales of important figures from brutal
periods in Islamic history. In a similar
model to the French Revolution, ISIS have legitimised the murder of innocent
civilians for a righteous purpose; as the anthropologist S Atran said: ‘you can’t inspire people to kill and harm
others without moral virtue’. Circumstance
is the inspiration for ISIS’s violence, Islam is simply the unfortunate ideological bystander that is prevalent in the region.
The founder of ISIS Abu Musab al-Zarqawi (d. 2006) was a
school dropout who embarked on a life of crime after his father died. Having been introduced to extreme puritanical takfiri Wahhabism
(see here for details) he joined the Afghanis to thwart the advancement of the
Soviet Red Army. Worsening relations between his homeland, Jordan, and Israel saw
an influx of black market arms from the first Gulf war and saw him join groups
that conducted suicide bombings in ‘Zionist’ territories. Arrested as a terrorist, like the current ‘Amir’
al Baghdadi, Zarqawi used intimidation and corruption during incarceration to
create and grow his faction, taking the title Amir (prince). He served only a
fraction of the sentence with a regime change being released in March
1999. Pledging his faction’s allegiance
to Al Qaeda and moving to Iraq, he made full use of the Iraqi insurgency during
the second Gulf War to form the ‘Islamic State of Iraq’ in 2006, which later
became known as ISIS (Weiss, 2015).
ISIS are the product of social problems such as high
unemployment and political instability, were hardened with stints in high
security prison and war, and have proven potent due to black market arms and financial
backing from, most likely although speculative, Saudi Arabia and Qatar. Islam’s link with ISIS is as
tenuous as a link with the Arabic language, since there would still be rape, violence
and usurpation of property and land irrespective of the existence of both. ISIS is just another political separatist
group amongst the many that reign terror on humanity. However, by trying to legitimise their actions using Islam they have rendered their endeavours illegitimate. Islam and Islamic Law pose as their biggest foe and the greatest source of hope to bring their reign of tyranny to an abrupt end.
Weiss M & Hassan H, 2015,
ISIS: Inside the Army of Terror, Regan Arts, New York
