An introduction to sharia law and the death penalty
One of the main justifications for the continued use of the ‘ultimate punishment’ in many Muslim countries is that sharia law mandates it and/or makes it permissible. However, is the administration of capital punishment in these jurisdictions consistent with sharia law, either in the ‘crimes’ it is imposed for or in the way that it is applied in practice?
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The practice of capital punishment in Muslim states
In 2012, Sudan sentenced Intisar Sharif Abdalla, a mother of three, to death by stoning, for allegedly having committed adultery. Abdalla did not have access to a lawyer, was forced to confess after having been beaten by her brother and was not provided with an interpreter during the proceedings, which were conducted in Arabic (not her native language). Perhaps most alarmingly, her co-accused was not charged, on the basis that he denied the allegation against him. Such a case is clearly in breach of international standards for imposition of the death penalty but, I would argue, it is also in breach of sharia law.
Sharia law provides a holistic set of rules governing all aspects of life. The principal sources of sharia law are the Quran and Sunnah (practices and traditions of the Prophet Mohammad (pbuh)). There are two secondary sources of sharia law known as Ijma’a (consensus of Muslim scholars) and Qiyas (reasoning by legal analogy).
It is notable that there is no homogenous application of sharia law and the way in which Muslim states deploy the use of the death penalty can vary quite significantly. Arguably, it is better described as manifestations of the will of Muslim states rooted in each country’s idiosyncratic policies and traditional beliefs.
There are 33 offences warranting the death penalty in Pakistan, including blasphemy, sabotage of the railway system and drug smuggling. In Saudi Arabia, crimes such as sorcery and witchcraft are punishable by death, and in Iran, there are 24 reported capital crimes, which include espionage, economic crimes (if they amount to ‘corruption on earth’) and publishing pornography.
The evidence suggests that the use of the death penalty disproportionately targets religious minorities in some Muslim countries and is often used as a tool to further political agendas. For example, in April 2019, 14 protesters from the Shi’a minority were executed in Saudi Arabia, after a grossly unfair trial, for their alleged participation in anti-government demonstrations between 2011 and 2012. In 2016, Iran executed 25 Sunni men convicted of “enmity against God”, and in 2017, Pakistan sentenced 3 Ahmadi men to death for blasphemy because they tore down anti-Ahmadi posters, which the prosecution argued had such religious significance that tearing them down was equal to insulting the Prophet (pbuh).
Death sentences are often imposed and implemented in flagrant violation of an individual’s right to a fair trial, which is antithetical to sharia law. In September 2020, Iran executed 27-year-old Navid Afkari, a professional wrestler. He was accused of murdering a security guard during anti-government protests in 2018. Amnesty International reported Afkari was:
“subjected to a shocking catalogue of human rights violations and crimes, including enforced disappearance; torture and other ill-treatment, leading to forced “confessions”; and a denial of access to a lawyer and other fair trial guarantees.”
Afkari maintained his innocence and pleaded to the judiciary to investigate his complaints of forced confession and torture. His pleas were ignored and his execution carried out in secret, without his lawyer and/or family being informed and without affording him his right to a fair trial and due process.
Compatibility with the principles of sharia law
Whilst the use of the death penalty is permitted under sharia law, its application is only allowed in limited circumstances, ensuring the highest requirements of due process and having regard to the ‘overriding objective’ of Islam: justice, mercy and repentance.
There are three categories of crimes in sharia law:
- qesas crimes, which refers to the retaliatory principle of “an eye for an eye” and includes homicide and the infliction of physical injury;
- hudud crimes, which are crimes against God, and are considered the most serious offences under sharia law, for which punishments are prescribed in the Quran. This includes banditry and adultery; and
- ta’azir crimes, which represent lesser crimes and for which punishment is at the discretion of the arbiter.
Although the Quran makes provision for the use of the death penalty for murder, a qesas crime, it also provides for other, more favourable, recourses to justice, which include restitution and forgiveness:
And We ordained for them herein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed – then it is those who are the wrongdoers. (Quran 5:45)
If you punish, then punish with an equivalent of that which you were harmed. But if you are patient - it is better for the patient. (Quran 16:126)
The recompense for an injury is an injury equal thereto [in degree]; but if a person forgives and makes reconciliation, his reward is due from God; for [God] loves not those who do wrong. (Quran 42:40)
In the case of hudud crimes, the punishments prescribed are severe, however the evidentiary requirements are so stringent that they can be almost impossible to meet. For example, in the case of zina (adultery), the punishment prescribed in the Quran is flogging, though some countries (as detailed above) impose the death penalty by stoning. However, in order to implement a punishment for zina, four ‘righteous’ eyewitnesses must testify to witnessing the act of intercourse and their testimonies must be consistent. Circumstantial evidence is not admissible, and pregnancy does not prove adultery. Unless such an act takes place in public, it is difficult to imagine a situation in which such stringent evidentiary requirements could be met. Where there is a confession, there are also strict requirements which must be adhered to, including that the confession must be wilful, freely repeated four times (it is recommended that the judge ignores the first three confessions) and that it must be a detailed confession.
It is widely accepted that the objective underlying punishment for hudud crimes is one of deterrence. Repentance acts as a bar to punishment and there is consensus among scholars that in the case of doubt punishment should not be imposed. The Prophet (pbuh) said:
“Do your best to avoid mandatory punishments. If you can find a way out for the accused, let him go. It is better for the ruler to err in granting a pardon than to err in enforcing a punishment.”
Above all, the cardinal principle of sharia law is fairness and equal justice, as demonstrated by one of the many verses in the Quran:
O ye who believe! Stand out firmly for justice, as witnesses to God, even as though it be against yourselves, or your parents, or your kin, and whether it be [a case against a] rich or poor [person]: for God must be given preference over them. Follow not the lusts [of your hearts], lest you swerve, and if you distort [justice] or decline to do justice, verily God is well acquainted with all that ye do. (Quran 4:135)
The emphasis in the Quran is on mercy and forgiveness. There should be exoneration in the event of doubt or in the case of a hudud crime, repentance. There is strong evidence that such punishments, including the death penalty, were prescribed to act as a deterrent and not to be so liberally applied in practice. Whether one agrees with whether the death penalty should ever be used or not, it is hard to see how its widespread application today could be considered compatible with sharia law.
M Cherif Bassouini, ‘Death as a Penalty in the Sharia’ in Peter Hodgkinson and William Schabas (eds), Capital Punishment: Strategies for Abolition (CUP 2004) 169-85.
Robert Postawko, ‘Towards an Islamic Critique of Capital Punishment’ (2002) UCLA JINEL 1 269, 318.