Qisas

Qiṣāṣ (Arabic: قصاص‎‎) is an Islamic term meaning "retaliation in kind" or "revenge",[1][2] "eye for an eye", "nemesis" or retributive justice. It is a category of crimes in Islamic jurisprudence, where Sharia allows equal retaliation as the punishment. Qisas principle is available against the accused, to the victim or victim's heirs, when a Muslim is murdered, suffers bodily injury or suffers property damage.[3] In the case of murder, Qisas means the right of a murder victim's nearest relative or Wali (ولي) (legal guardian) to, if the court approves, take the life of the killer.[4]

Qisas is one of several forms of punishment in Islamic Penal Law, others being Hudud, Diyya and Ta'zir.[5]

Islamic scriptures

The Qisas or equivalence verse in Quran is,[1]

O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.
— Quran 2:178

The Hadiths have extensive discussion of qisas. For example, Sahih Bukhari states,

Allah's Apostle said, "The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims."
— Sahih al-Bukhari, 9:83:17
Narrated Anas: The daughter of An-Nadr slapped a girl and broke her incisor tooth. They (the relatives of that girl), came to the Prophet and he gave the order of Qisas (equality in punishment).
— Sahih al-Bukhari, 9:83:32

Qisas system of punishment is prescribed in Quran and Hadiths to any case of unnatural death (murder, manslaughter), bodily injury or aggravated assault suffered by a Muslim.[6] However, in the history of Islam, many premodern Islamic scholars ruled that Qisas did not apply when the victim was a non-Muslim dhimmi and to non-Muslim slaves owned by a Muslim.[7]

Narrated Abu Juhaifa: I asked 'Ali "Do you have anything Divine literature besides what is in the Qur'an?" Or, as Uyaina once said, "Apart from what the people have?" 'Ali said, "By Him Who made the grain split (germinate) and created the soul, we have nothing except what is in the Quran and the ability (gift) of understanding Allah's Book which He may endow a man, with and what is written in this sheet of paper." I asked, "What is on this paper?" He replied, "The legal regulations of Diya (Blood-money) and the (ransom for) releasing of the captives, and the judgment that no Muslim should be killed in Qisas (equality in punishment) for killing a Kafir (disbeliever)."
— Sahih al-Bukhari, 9:83:50 see also Sahih al-Bukhari, 1:3:111 4:52:283 Sunan Abu Dawood, 39:4515

Islamic law

Islamic law treats homicide as a civil dispute between believers,[8] rather than corrective punishment by the state to maintain order.[9] In all cases of murder, unintentional homicide, bodily injury and property damage, under traditional sharia doctrine, the prosecutor is not the state, but only the victim or the victim's heir (or owner, in the case when the victim is a slave). Qisas can only be demanded by the victim or victim's heirs.[10]

Alternative to qisas

The Qur'an also allows aggrieved Muslim parties to receive monetary compensation (blood money, diyya, دية) instead of qisas,[11] or forfeit the right of qiṣāṣ as an act of charity or in atonement for the victim family's past sins.

We ordained therein for them: "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.
— Quran 5:45

Pardoning (in the name of God, fī sabīli llāhi) and compensation for crimes such as murder, have led human right activists to ask whether wealthy offenders are unjustly favoured when some money is offered in exchange after the intentional murder or accidental death of a poor person.[12]

Qisas and non-Muslims

The principle of Qisas is available as a legal course, only when the victim is a Muslim, but not to non-Muslims, according to historical Islamic jurist literature of all Islamic doctrines of Sharia except Hanafi.[13][14][15]

In the early history of Islam, there were considerable disagreements in Muslim jurist opinions on applicability of Qisas and Diyya when a Muslim murdered a non-Muslim (Dhimmi, Musta'min or slave).[16][17] Most scholars of Hanafi school of sharia ruled that, if a Muslim killed a dhimmi or a slave, Qisas (retaliation) was applicable against the Muslim, but this could be averted by paying a Diyya.[16][18] In one case, the Hanafi jurist Abu Yusuf initially ordered Qisas when a Muslim killed a dhimmi, but under Caliph Harun al-Rashid's pressure replaced the order with Diyya if the victim's family members were unable to prove the victim was paying jizya willingly as a dhimmi.[19] According to Fatawa-e-Alamgiri, a 17th-century compilation of Hanafi sharia in South Asia, a master who kills his slave should not face capital punishment under the retaliation doctrine.[20]

The non-Hanafi Islamic codes of sharia have historically ruled that Qisas does not apply against a Muslim, if he murders any non-Muslim (including dhimmi) or a slave for any reason.[14][15] Both Shafi'i and Maliki sharia doctrines maintained, notes Friedmann, that the Qisas only applies when there is "the element of equality between the perpetrator and the victim"; Qisas is not available to an infidel victim when the crime's perpetrator is a Muslim because "equality does not exist between a Muslim and an infidel, and Muslims are exalted above the infidels".[21]

According to Hanbali school of Sharia, if a Muslim kills or harms a non-Muslim, even if intentionally, Qisas does not apply,[14] and the sharia court may only impose a Diyya (cash compensation) with or without a prison term on the Muslim at its discretion. The Maliki sharia also forbids applying Qisas against a Muslim if the victim is a dhimmi, but has ruled that the Muslim may be killed if the murder was treacherous.[13][16] If the killing, bodily or property damage was unintentional, the compensation to a non-Muslim was declared to be half of what would be due for an equivalent damage to a Muslim. The Shafi'i sharia was similar to Hanbali sharia, and Qisas did not apply if the victim was a non-Muslim;[22] additionally, Shafi'i jurists held that the compensation for the victim's heirs should be a third of what would be due in case the victim was a Muslim.[13][23] According to Hanafi school, neither Qisas nor Diyya applied against a Muslim or a dhimmi who killed a Musta'min (foreigner visiting) who did not enjoy permanent protection in Dar al-Islam and may take up arms against Muslims after returning to his homeland (dar al-harb).[24]

Neither Qisas nor any other form of arrest, judicial process or compensation applied in case the victim was an apostate (converted from Islam to another religion), a person who has committed the hadd crime of transgression against Islam or Imam (Baghj), or a non-Muslim who did not accept himself or herself as a Dhimmi, or if the non-Muslim victim's family could not prove that the victim had paid Jizya regularly.[16][23]

Muslim jurists justified the discriminatory application of Qisas between Muslims and non-Muslims by referring to the following hadith.[25]

Narrated Abdullah ibn Amr ibn al-'As: The Prophet said: A believer will not be killed for an infidel. If anyone kills a man deliberately, he is to be handed over to the relatives of the one who has been killed. If they wish, they may kill, but if they wish, they may accept blood-wit.
— Sunan Abu Dawood, 39:4491

Numerous Hanafi, Shafi'i and Maliki Sharia jurists stated that a Muslim and a non-Muslim are neither equal nor of same status under sharia, and thus the judicial process and punishment applicable must vary.[25]

Qisas and honor crimes

According to most variations of Sharia, neither Qisas nor Tazir applies if a Muslim parent or grandparent kills their child[20] or grandchild,[26] or if the murder victim is a spouse with whom one has surviving children.[26] The culprit can be, however, subject to Diyya (financial compensation) which is payable to the surviving heirs of the victims.[26]

The four major schools of Sunni Sharia have been divided on applicability of Qisas when the victim is a child, and the father is the murderer. The Hanafi, Shafi'i and Hanbali Sunni sharias have ruled that Qisas does not apply, as has the Shia Sharia doctrine. The Maliki school, however, has ruled that Qisas may be demanded by the mother if a father kills his son.[1][27] The Hanafi, Hanbali and Shafi'i sharia extend this principle to cases when the victim is a child and the mother or grandparents are the murderers.[22][28]

Scholars suggest that this exemption of parents and relatives from Qisas, and the treatment of homicide-related Qisas as a civil dispute that should be handled privately by victim's family under sharia doctrine, encourages honor crimes, particularly against females, as well as allows the murderer(s) to go unpunished.[29][30][31] This, state Devers and Bacon, is why many honor crimes are not reported to the police, nor handled in the public arena.[32][33] Historically, Sharia did not stipulate any punishment against the accused when the victim is the child or the spouse of the murderer, but in modern times some Sharia-based Muslim countries have introduced laws that grant courts the discretion to impose imprisonment of the murderer.[26] However, the victim's heirs have the right to waive Qisas, seek Diyat, or pardon the killer.[31][34]

Qisas and blasphemy

Under Sunni and Shia sharia, neither Qisas nor another punishment applies against anyone who kills a Muslim or non-Muslim for blaspheming (tashtimu, sabb al rasool) the Prophet or Islam.[35][36] This principle is derived from the hadiths such as,[35]

Narrated Ali ibn AbuTalib: A Jewess used to abuse the Prophet and disparage him. A man strangled her till she died. The Apostle of Allah declared that no recompense was payable for her blood.
— Sunan Abu Dawood, 38:4349
Narrated Abdullah Ibn Abbas: A blind man had a slave-mother who used to abuse the Prophet and disparage him. (...) So he took a dagger, placed it on her belly, pressed it, and killed her. (...) He sat before the Prophet and said: Apostle of Allah! I am her master; she used to abuse you and disparage you. I forbade her, but she did not stop, and I rebuked her, but she did not abandon her habit. I have two sons like pearls from her, and she was my companion. Last night she began to abuse and disparage you. So I took a dagger, put it on her belly and pressed it till I killed her. Thereupon the Prophet said: Oh be witness, no retaliation [Qisas] is payable for her blood.
— Sunan Abu Dawood, 38:4348

Current practice

Qisas is part of sharia-based legal system in countries colored purple and orange in the map above.

Qiṣāṣ is enforced today by a number of countries which apply Sharia law, particularly in the Middle East, such as Saudi Arabia.[37]

Iran

Through sections 1 through 80 of Iran's penal code, Qisas have been enacted as one of the methods of punishment.[38][39] Iran penal code outlines two types of Qisas crime - Qisas for life, and Qisas for part of human body.[40] In cases of qisas for life, the victim's family may with the permission of court, take the life of the murderer. In cases of qisas for part of human body, section 55 of Iran's penal code grants the victim or victim's family to, with permission of the court, inflict an equal injury to the perpetrator's body. If the victim lost the right hand and perpetrator does not have a right hand for qisas, then with court's permission, the victim may cut the left hand of the perpetrator.[40]

Acid attack

In Iran, qiṣāṣ was demanded by Ameneh Bahrami, an Iranian woman blinded in an acid attack. She demanded that her attacker Majiv Movahedi be blinded as well.[41] In 2011, Bahrami retracted her demand on the day the sentence was to be carried out, requesting instead that her attacker be pardoned.[42]

Pakistan

Pakistan introduced Qisas and Diyat in 1990 as Criminal Law (Second Amendment) Ordinance, after the Shariat Appellate Bench of the Supreme Court of Pakistan declared that the lack of Qisas and Diyat were repugnant to the injunctions of Islam as laid down by the Quran and Sunnah.[43] Pakistani parliament enacted the law of Qisas and Diyat as Criminal Law (Amendment) Act, 1997.[44] An offender may still be punished despite pardoning by way of ta'zīr (principle of fasād fī 'l-arḍ) or if not all the persons entitled to Qisas joined in the compromise.[45] The Pakistan Penal Code modernized the Hanafi doctrine of qisas and diya by eliminating distinctions between Muslims and non-Muslims.[46]

Girl bride as punishment for relative's crime

In Afghanistan and Pakistan, Qisas is practiced as Vani (ونی)[47] and Swara (سوارہ, also called Ba'ad[48]) wherein young girls are forcibly given away as a bride as part of punishment and Qisas compromise settlement (Badal-i-Sulh) for a crime committed by her male relatives.[49][50][51]

Nigeria

Since the 1960s, northern states of Nigeria have re-instated sharia including Qisas. These codes have been applied in the Sharia Courts of Nigeria to Muslims. Many have been sentenced to retaliation under the Qisas principle, as well as to other punishments such as hudud and tazir.[52][53]

Saudi Arabia

Murder and manslaughter are private offenses in Saudi Arabia, which a victim or victim's heirs must prosecute, or accept monetary compensation, or grant pardon.[54] The sharia courts in Saudi Arabia apply Qisas to juvenile cases, with previous limit of 7 year raised to 12 year age limit, for both boys or girls.[55] This age limit is not effectively enforced, and the court can assess a child defendant's physical characteristics to decide if he or she should be tried as an adult. In most cases, a person who satisfies at least one of the following four characteristics is considered as an adult for Qisas cases:[54] (1) above the age of 15, (2) has wet dreams (al-ihtilam), (3) any appearance of pubic hair, or (4) start of menstruation. Qisas principle, when enforced in Saudi Arabia, means equal retaliation and damage on the defendant.[54]

In 2013, a court in Saudi Arabia sentenced a defendant to have his spinal cord severed to paralyze him, unless he paid one million Saudi riyals (about US$270,000) in Diyya compensation to the victim. The offender allegedly stabbed his friend in the back, rendering him paralysed from the waist down in or around 2003.[56] Other sentences of qisas in KSA have included eye gouging, tooth extraction, and death in cases of murder.[57]

A legal concept similar to Qisas is the principle of Eye for an eye first recorded in the Code of Hammurabi.

See also

References

  1. 1 2 3 Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, ISBN 978-0892591428
  2. ↑ Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1449604257, pp. 370-372
  3. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 12-13
  4. ↑ Encyclopædia Britannica, Qisas (2012)
  5. ↑ Asghar Schirazi (1997), The Constitution of Iran : politics and the state in the Islamic Republic, I.B. Tauris London, pp. 222-225
  6. ↑ Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1449604257
  7. ↑ Anver M. Emon (2012), Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, Oxford University Press, ISBN 978-0199661633, pp. 237-249; Quote "Muslim jurists defended this discriminatory application of qisas liability by reference to a hadith in which the Prophet said: 'A believer is not killed for an unbeliever or one without a covenant during his residency.' Jurists who constructed discriminatory rules of liability relied on the first half of the hadith. Furthermore, they argued that these discriminatory rules reflected the fact that Muslims were of a higher class than their non-Muslim co-residents."; Quote 2 "Furthermore, using the logical inference of a minore ad maius, Al-Mawardi held that just as a Muslim bears no liability for sexually slandering a dhimmi, he cannot be liable for killing one, a much more serious offense.
  8. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 283-288
  9. ↑ Malik, Nesrine (5 April 2013). "Paralysis or blood money? Skewed justice in Saudi Arabia". The Guardian. Retrieved 14 February 2015.
  10. ↑ Rudolph Peters (2006), Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 44-49, 114, 186-187
  11. ↑ Christie S. Warren, Islamic Criminal Law, Oxford University Press, Qisas
  12. ↑ "Qisas being used by the wealthy to avoid trial: CJ". The Express Tribune (Pakistan), 3 October 2013 (concerning the murder of Shahzeb Khan).
  13. 1 2 3 Majid Khadduri and Herbert J. Liebesny, Law in the Middle East: Origin and Development of Islamic Law, 2nd Edition, Lawbook Exchange, ISBN 978-1584778646, pp. 337-345
  14. 1 2 3 Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 169-170
  15. 1 2 J. Norman D. Anderson (2007), Islamic Law in Africa, Routledge, ISBN 978-0415611862, pp. 372-373
  16. 1 2 3 4 Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-50
  17. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258, pp. 89-90
  18. ↑ Rudolph Peters and Peri Bearman (2014), The Ashgate Research Companion to Islamic Law, ISBN 978-1409438939, pp. 129-137
  19. ↑ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-43
  20. 1 2 SC Sircar, The Muhammadan Law, p. 276, at Google Books, pp. 276-278
  21. ↑ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 45-46, Quote: "(...) maintained that the element of equality which is inherent in the concept of qisas "does not exist between a Muslim and an infidel because infidelity lowered his standing and diminished his rank" (wa la musawat bayna al-muslim wa al-kafir fa-inna al-kufr hatta manzilatahu wa wada'a martabatahu). Perceiving Muslims as exalted above the infidels is, again, the conceptual basis for determining the law."
  22. 1 2 Al-Misri (Translated by Nuh Ha Mim Keller), Reliance of the Traveller, ISBN 978-0915957729, Ruling O:1.2, Quote: "The following are not subject to retaliation: (2) a Muslim for killing a non-Muslim; (4) a father or mother (or their fathers or mothers) for killing their offpsring, or offspring's offpsring; (5) nor is retaliation permissible to a descendant such as when his father kills his mother"
  23. 1 2 Richard Terrill (2012), World Criminal Justice Systems: A Comparative Survey, Routledge, ISBN 978-1455725892, pp. 554-562
  24. ↑ Yohanan Friedmann (2006), Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition, Cambridge University Press, ISBN 978-0521026994, pp. 42-51
  25. 1 2 Anver M. Emon (2012), Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law, Oxford University Press, ISBN 978-0199661633, pp. 237-250
  26. 1 2 3 4 Sara Hossain and Lynn Welchman (2005), 'Honour': Crimes, Paradigms and Violence Against Women, ISBN 978-1842776278, pp. 85-86
  27. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258, p. 90
  28. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill, ISBN 978-9004172258
  29. ↑ Stephanie Palo (2008), A Charade of Change: Qisas and Diyat Ordinance Allows Honor Killings to Go Unpunished in Pakistan, UC Davis Journal Int'l Law & Policy, 15, pp. 93-99
  30. ↑ RA Ruane (2000), Murder in the Name of Honor: Violence Against Women in Jordan and Pakistan. Emory Int'l Law Review, 14, pp. 1523-1532
  31. 1 2 Hannah Irfan (2008), Honor Related Violence Against Women in Pakistan, World Justice Forum, Vienna July 2–5, pp. 9-12
  32. ↑ Lindsey Devers and Sarah Bacon (2010), Interpreting Honor Crimes: The Institutional Disregard Towards Female Victims of Family Violence in the Middle East, International Journal of Criminology and Sociological Theory, Vol. 3, No. 1, June 2010, pp. 359-371
  33. ↑ Sharbanoo Keshavarz (2006), Honor Killing in Iran: a Legal Point of View, Yearbook of Islamic & Middle East Law (2006-2007), Vol 13, pp. 87-103
  34. ↑ Shahid M. Shahidullah (2012), Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1449604257, pp. 511
  35. 1 2 Siraj Khan, Blasphemy against the Prophet, in Muhammad in History, Thought, and Culture (Editors: Coeli Fitzpatrick and Adam Hani Walker), ISBN 978-1610691772, pp. 59-67
  36. ↑ Ilʹi͡a Pavlovich Petrushevskiĭ (1985), Islam in Iran, SUNY Press, ISBN 978-0887060700, Ch 7
  37. ↑ A Brief Overview of the Saudi Arabian Legal System Archived April 29, 2014, at the Wayback Machine., July 2008
  38. ↑ A Guide to the Legal System of the Islamic Republic of Iran Archived January 7, 2012, at the Wayback Machine., March 2006
  39. ↑ Islamic Penal Code of the Islamic Republic of Iran, Book 3
  40. 1 2 Shahid M. Shahidullah, Comparative Criminal Justice Systems: Global and Local Perspectives, ISBN 978-1-4496-0425-7, pp. 425-426
  41. ↑ "In Iran, a case of an eye for an eye" Phillie Metro March 29, 2009
  42. ↑ "Iranian sentenced to be blinded for acid attack is pardoned" (BBC News, 31 July 2011)
  43. ↑ Federation of Pakistan v. Gul Hasan Khan, PLD 1989 SC 633–685, affirming PLD 1980 Pesh 1–20 and PLD 1980 FSC 1–60
  44. ↑ see PPC ss. 299–338-H; Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, ISBN 978-90-04-17225-8, Brill, p. 8
  45. ↑ Pakistan Penal Code s. 311; Azmat and another v. The State, PLD 2009 Supreme Court of Pakistan 768
  46. ↑ Tahir Wasti (2009). The Application of Islamic Criminal Law in Pakistan. Brill. p. 49.
  47. ↑ Banning the Tradition of Vani (Giving Female as Consideration for Compromise), p. 361, at Google Books, Commonwealth Law Bulletin, Volume 30, Pakistan Law Commission Report 51, pp. 361-363
  48. ↑ Alissa Rubin, For Punishment of Elder’s Misdeeds, Afghan Girl Pays the Price, New York Times, February 16, 2012
  49. ↑ Bedell, J. M. (2009), Teens in Pakistan, Capstone
  50. ↑ Vani verdict The Tribune (IHT / New York Times Group), Pakistan (October 9, 2012)
  51. ↑ Vani a social evil Anwar Hashmi and Rifat Koukab, The Fact (Pakistan), (July 2004)
  52. ↑ G.J. Weimann (2007), "Judicial Practice in Islamic Criminal Law in Nigeria 2000 to 2004—A Tentative Overview," Islamic Law & Society, 14(2), pp. 240–286
  53. ↑ I.K. Oraegbunam (2012), Penal Jurisprudence under Islamic Criminal Justice: Implications for the Right to Human Dignity in Nigerian Constitution, Journal Islamic State Practices in Int'l Law, 8, pp. 31-49
  54. 1 2 3 Human Rights Watch (2008), The Last Holdouts, Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan and Yemen, ISBN 1564323757, pp. 7-9; Archived summary
  55. ↑ Child Rights International Network (March 2013), Inhuman sentencing of children in Saudi Arabia, 17th session of the Human Rights Council Universal Periodic Review; Don Cipriani (2009), Children’s Rights and the Minimum Age of Criminal Responsibility, Farnham: Ashgate Publishing, ISBN 978-0754677307
  56. ↑ Nair, Drishya (April 2, 2013). "saudi arabia: man who paralyzed friend to have spinal cord severed". International Business Times. Retrieved 16 February 2015.
  57. ↑ Saudi Arabia: News of paralysis sentence "outrageous" Archived February 17, 2015, at the Wayback Machine. Amnesty International (2 April 2013)
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