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The Islamic Position on Capital Punishment in the Context of International Law



Article by Najia Humayun,


Introduction:


Though Article Six of The International Covenant on Civil and Political Rights (ICCPR) indicates a preference towards abolition of capital punishment, it nonetheless provides guidelines for its just implementation. The article requires that the death penalty only be imposed “for the most serious crimes in accordance with the law,” and that it not run contrary to the ICCPR or the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). It further clarifies that anyone sentenced to death has the right to seek pardon or commutation of their sentence; and it prohibits the execution of any person under 18 years of age or pregnant.


This piece will discuss whether the Islamic position on capital punishment, determined from the text of the Holy Quran, falls within the reins of this international law. The Holy Quran provides specific, corporal punishments for 4 offenses: adultery (24:03), slandering (24:05), murder (2:179), and theft (5:39). Of these offenses, only murder is explicitly stated in the Holy Quran as being punishable by death.


Some self-proclaimed Islamic countries permit capital punishment for crimes which are not explicitly punishable by death according to the Holy Quran. There is scholarship criticizing the extreme interpretations which have led countries like Saudi Arabia and others to implement capital punishment for crimes such as apostasy and adultery.


In order to focus on a comparison of the standards of Islam itself to the standards of international law, this article will only focus on the Islamic teaching of capital punishment for murder, which is undisputed within Islam due to its clear basis in the Holy Quran’s text.


The Islamic teaching on capital punishment aligns with Article 6 of the ICCPR due to its limited scope to murder, constraint on the consideration of social characteristics of the offender by the government, and promotion of a restorative justice model which provides the victims’ heirs discretion to forgive the offenders.


Textual basis:


The Holy Quran says, “O ye who believe! equitable retaliation in the matter of the slain is prescribed for you: the free man for the free man, and the slave for the slave, and the female for the female. But if one is granted any remission by one’s brother, then pursuing the matter for the realization of the blood money shall be done with fairness and the murderer shall pay him the blood money in a handsome manner. This is an alleviation from your Lord and a mercy. And whoso transgresses thereafter, for him there shall be a grievous punishment.” (2:179)


This teaching aims to provide proportionate punishment without distinction between offenders, while providing for forgiveness by the victims’ heirs. The language “the free man for the free man, and the slave for the slave, and the female for the female” is not stating that, say, a woman should not be executed for killing a man. Rather, it is stating that the social position of an offender should not be considered when determining when to apply the death penalty. The grammatical construction, which may confuse some in translation, refers to and forbids a historic custom in Arabia in which they took sex, social status, and other factors into account when determining punishment. Furthermore, the use of the phrase “one’s brother,” in reference to the offender emphasizes that the victim’s family should attempt to feel fraternity with the offender, rather than seek vengeance.


Philosophical Rationale:


The Islamic teaching on capital punishment for murder entails both utilitarian and retributive rationales, with the former justifying execution due to its deterrence potential, and the latter justifying execution due to the moral wrongness of violating the sanctity of human life. It also contains an element of restorative justice, a model which insists that justice should repair the injuries of the parties involved in a crime. The family of the victim is granted the right to forgive the offender. While the duty to execute lies with the state, the option to forgive the offender, and subject them to a fine rather than capital punishment lies with the heirs of the victim. By granting this critical merciful role to the victim’s family, this teaching embodies a restorative justice model, instead of the traditional Western model in which the state prosecutes the offender on behalf of the victim. For a detailed analysis on restorative justice and Islamic law, see here.


Comparison to International Standards:


Article Six of the ICCPR requires that the death penalty only be imposed “for the most serious crimes in accordance with the law”. Congruently, the Holy Quran only explicitly sanctions capital punishment for murder. The article also states that the death penalty is not permitted if it violates any provision of the ICCPR or the Genocide Convention. A brief examination demonstrates that the Islamic teaching conforms to both Article Six of the ICCPR, which is being discussed in this section, and the Genocide Convention. The Convention aims to prevent the death penalty from being used as a tool for genocide, and the relevant verse of the Holy Quran is designed to prevent the consideration of social characteristics when determining whether to execute someone.


Article Six further clarifies that anyone sentenced to death has the right to seek pardon or commutation of their sentence. The Islamic teaching for capital punishment gives the right to pardon the offender to the heirs of the victim. This is distinct from the international standard’s requirement of providing offenders themselves the right to seek pardon. Yet, taken in the context of Islamic law, it is likely that the Islamic teaching in this regard would promote pardon to an even greater extent.


Verse 2:178, immediately preceding the teaching on capital punishment, states, “It is not righteousness that you turn your faces to the East or the West, but truly righteous is he who believes in Allah and the Last Day and the angels and the Book and the Prophets, and spends his money for love of Him, on the kindred and the orphans and the needy and the wayfarer and those who ask for charity, and for ransoming the captives; and who observes Prayer and pays the Zakat; and those who fulfill their promise when they have made one, and the patient in poverty and afflictions and the steadfast in time of war; it is these who have proved truthful and it is these who are the God-fearing.” This verse lays out a summary of the teachings Muslims are enjoined to follow. First, this reminds the reader to look to what teachings of their religion they are not following before looking to punish another’s sins. Second, it urges Muslims to, as a form of charity, ransom captives, thereby promoting forgiveness. Third, and more broadly speaking, forgiveness is a repeated theme in the Holy Quran. Each chapter begins with the words, “In the name of Allah, the Gracious, the Merciful”, and Muslims are repeatedly enjoined to embody the characteristics of Allah. Furthermore, verses such as 16:127 teach Muslims that forgiveness is better than retaliation, even when dealing with one’s former oppressors.


Additionally, there is less asymmetry of power between the offender and the family of the victim than there would be between the offender and the entire government apparatus. Though the Quran only explicitly provides the victim’s family the right to pardon, it is likely and perhaps inevitable that in this process, they would interact with the offender. And in any such interaction, the offender would have more bargaining power than they would as an individual standing against a formal judicial system.


Lastly, the article prohibits the execution of any person under 18 years of age, or pregnant. The Islamic teaching does not explicitly forbid execution of these two groups. However, by giving the victims’ heirs the right to forgive the offender, and furthermore urging the former to view the latter as their “brother”, the Holy Quran insists upon forgiveness where the victims feel it is merited. In the broader context of Islamic law, the specific rights afforded to the young, and the leniencies in prayer and fasting afforded to pregnant women, will likely promote sympathy on the part of the victims’ heirs towards the offender.


Conclusion


The Holy Quran limits the scope of capital punishment to murder. Furthermore, the Quranic verse in question gives the state the duty to punish the offender, while barring the state from considering the offender’s social characteristics. Yet, the heirs of the victim are given the right to supersede the state, and pardon the offender. In the restorative justice model interactions between the victims’ heirs and the offender which would ensue, the victims’ heirs will likely take their right to pardon within the context of Islamic law at large. This will urge them to prefer forgiveness to punishment, and consider factors which may make the offender particularly vulnerable. In light of these facts, the Islamic teaching on capital punishment is wholly compatible with international law’s limitations in that regard.

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