ISLAMIC LAW ON SADDAM
July 7, 2004 -- WHENEVER it takes place, one thing is sure about Saddam Hussein's trial: The dictator will be judged on the basis of Western, rather than Islamic, law.
The Western legal system allows Saddam to employ lawyers, to question the authority of the court and to prolong the trial with judicial tactics. Once sentenced, he could lodge an appeal or seek retrial. The way things are shaping up, Saddam may even emulate his fellow despot Slobodan Milosevic by turning the trial into a political soap opera.
None of that would be possible if Saddam were tried under Islamic law.
One major feature of Islamic law is its emphasis on speedy trials. This is because, in its purest form, the Islamic penal system does not include imprisonment as a form of punishment. A man charged with a crime should be tried and sentenced before the sunset of the day of his arrest. If a trial could not be held immediately, the accused is allowed to stay with his family and/or friends who undertake to bring him forth at the appointed time.
There are three categories of crime in Islam: those committed against individual believers, those committed against society and those committed against God.
In the case of crimes against individuals, including manslaughter and unpremeditated murder, the accused could go free by paying "blood tithe" (diyah) to the relatives of the victim.
In other cases, such as causing personal physical injury, the system of retribution (qissass) will apply. The punishment is proportionate to the crime: an eye for an eye. (The idea is not to exact revenge but to impose limits on punishment.)
Crimes against society include embezzlement from the public treasury, corruption and morally reprehensible behavior in general. Here, too, in most cases, the accused can get away with the payment of fines and the restitution of illegally appropriated public property.
Such crimes as serial burglary (being convicted of stealing three times) have both private and public dimensions. The serial thief has his right hand amputated and is then set free.
One found guilty of a less serious crime, swindling a partner for example, is asked to pay compensation and a fine, and allowed to go home.
Men and women found guilty of adultery are flogged in public and then set free.
The most serious crimes, those committed against God, are punishable by death in the form of beheading. A man found guilty of premeditated murder has his head chopped off moments after being sentenced.
Nevertheless, the principle of repentance (tawbah) plays a central role in Islamic jurisprudence, whose ultimate aim is to reform rather than punish. Even in the case of publicly professed apostasy, one of the most serious crimes in Islam, repentance is not ruled out.
Now imagine Saddam Hussein appearing in front of an Islamic court.
First, he would notice is that there is only one judge. This is because having more than one judge might lead to a clash of interpretations that could cast doubt on the solidity (hikmah) of divine rules. He would also notice that there is no jury.
Next he would notice that the charges against him are spelled out by the judge himself. The judge would then call in two male witnesses (or four female ones) to testify to each of the charges.
Saddam would then be asked to respond to the charges and to speak in his defense. He would not have the services of a lawyer, since there are none in Islamic jurisprudence. But he could question the testimony of witnesses and call two witnesses of his own.
Once he is sentenced, there would be no appeal.
His fate would be in the hands of the Commander of the Faithful, the ruler who may bear the title of Caliph or Wali al-Amr (Custodian of Affairs) of the community. The Commander of the Faithful could lessen Saddam's sentence or even pardon him. One thing he cannot do is to keep him in prison.
Now, what are the charges that Saddam might face in an ideal Islamic court?
He could be charged with "betrayal of trust" (khianah fil amanah).
This means he breached the trust that people put in him as the ruler of the country. The charge would also cover the plundering of the public treasury (beit al-maal), seizure of property from Muslims, wasting public funds for personal pleasure and ostentatious living.
The punishment in such cases includes restoration of stolen property, payment of compensation and fines and flogging. But it could also mean death by beheading.
Saddam could also be charged with murder. There is ample evidence that Saddam personally shot Izzat Mostafa. Then there is film footage of Saddam ordering his henchmen to take several rival Baath leaders out of a party congress and shoot them in the courtyard of the conference hall.
In both cases, the Islamic punishment is death by beheading. Nevertheless, Saddam might be able to get away if the families of the victims agree to pardon him in exchange for blood tithe.
Saddam could face the more serious charge of "spreading corruption on earth" (mufsid fil-ardh). This is a broad charge and covers a variety of misdeeds, including a reign of terror, depriving Muslims of their freedom, property and dignity and causing conflict.
The wars that Saddam triggered against the Kurds in 1969, 1975 and 1991; the massacre of the people of Halabja with chemical weapons in 1988, and the crushing of the Shiite revolt in 1991 could fall into this category. Again the punishment is death by beheading.
The gravest charge that Saddam could face in an Islamic court is that of "waging war on God" (muharibah an-Allah).
The charge includes the cult of personality that Saddam built for himself, thus setting himself as a rival of God in seeking men's devotion. And that, of course, is a form of sherk (idolatry). Saddam could also be accused of having fought against the will of God by triggering wars against Iran and Kuwait and leading his people into decades of suffering and sorrow.
Once again, the punishment in such cases is death by beheading.
For years Saddam dismissed religion as "a relic of feudalism." In his last years, however, he tried to develop an Islamic image. If he were tried under Islamic law, he'd certainly be found guilty in a single sitting of the court and face beheading the same day.
July 7, 2004 -- WHENEVER it takes place, one thing is sure about Saddam Hussein's trial: The dictator will be judged on the basis of Western, rather than Islamic, law.
The Western legal system allows Saddam to employ lawyers, to question the authority of the court and to prolong the trial with judicial tactics. Once sentenced, he could lodge an appeal or seek retrial. The way things are shaping up, Saddam may even emulate his fellow despot Slobodan Milosevic by turning the trial into a political soap opera.
None of that would be possible if Saddam were tried under Islamic law.
One major feature of Islamic law is its emphasis on speedy trials. This is because, in its purest form, the Islamic penal system does not include imprisonment as a form of punishment. A man charged with a crime should be tried and sentenced before the sunset of the day of his arrest. If a trial could not be held immediately, the accused is allowed to stay with his family and/or friends who undertake to bring him forth at the appointed time.
There are three categories of crime in Islam: those committed against individual believers, those committed against society and those committed against God.
In the case of crimes against individuals, including manslaughter and unpremeditated murder, the accused could go free by paying "blood tithe" (diyah) to the relatives of the victim.
In other cases, such as causing personal physical injury, the system of retribution (qissass) will apply. The punishment is proportionate to the crime: an eye for an eye. (The idea is not to exact revenge but to impose limits on punishment.)
Crimes against society include embezzlement from the public treasury, corruption and morally reprehensible behavior in general. Here, too, in most cases, the accused can get away with the payment of fines and the restitution of illegally appropriated public property.
Such crimes as serial burglary (being convicted of stealing three times) have both private and public dimensions. The serial thief has his right hand amputated and is then set free.
One found guilty of a less serious crime, swindling a partner for example, is asked to pay compensation and a fine, and allowed to go home.
Men and women found guilty of adultery are flogged in public and then set free.
The most serious crimes, those committed against God, are punishable by death in the form of beheading. A man found guilty of premeditated murder has his head chopped off moments after being sentenced.
Nevertheless, the principle of repentance (tawbah) plays a central role in Islamic jurisprudence, whose ultimate aim is to reform rather than punish. Even in the case of publicly professed apostasy, one of the most serious crimes in Islam, repentance is not ruled out.
Now imagine Saddam Hussein appearing in front of an Islamic court.
First, he would notice is that there is only one judge. This is because having more than one judge might lead to a clash of interpretations that could cast doubt on the solidity (hikmah) of divine rules. He would also notice that there is no jury.
Next he would notice that the charges against him are spelled out by the judge himself. The judge would then call in two male witnesses (or four female ones) to testify to each of the charges.
Saddam would then be asked to respond to the charges and to speak in his defense. He would not have the services of a lawyer, since there are none in Islamic jurisprudence. But he could question the testimony of witnesses and call two witnesses of his own.
Once he is sentenced, there would be no appeal.
His fate would be in the hands of the Commander of the Faithful, the ruler who may bear the title of Caliph or Wali al-Amr (Custodian of Affairs) of the community. The Commander of the Faithful could lessen Saddam's sentence or even pardon him. One thing he cannot do is to keep him in prison.
Now, what are the charges that Saddam might face in an ideal Islamic court?
He could be charged with "betrayal of trust" (khianah fil amanah).
This means he breached the trust that people put in him as the ruler of the country. The charge would also cover the plundering of the public treasury (beit al-maal), seizure of property from Muslims, wasting public funds for personal pleasure and ostentatious living.
The punishment in such cases includes restoration of stolen property, payment of compensation and fines and flogging. But it could also mean death by beheading.
Saddam could also be charged with murder. There is ample evidence that Saddam personally shot Izzat Mostafa. Then there is film footage of Saddam ordering his henchmen to take several rival Baath leaders out of a party congress and shoot them in the courtyard of the conference hall.
In both cases, the Islamic punishment is death by beheading. Nevertheless, Saddam might be able to get away if the families of the victims agree to pardon him in exchange for blood tithe.
Saddam could face the more serious charge of "spreading corruption on earth" (mufsid fil-ardh). This is a broad charge and covers a variety of misdeeds, including a reign of terror, depriving Muslims of their freedom, property and dignity and causing conflict.
The wars that Saddam triggered against the Kurds in 1969, 1975 and 1991; the massacre of the people of Halabja with chemical weapons in 1988, and the crushing of the Shiite revolt in 1991 could fall into this category. Again the punishment is death by beheading.
The gravest charge that Saddam could face in an Islamic court is that of "waging war on God" (muharibah an-Allah).
The charge includes the cult of personality that Saddam built for himself, thus setting himself as a rival of God in seeking men's devotion. And that, of course, is a form of sherk (idolatry). Saddam could also be accused of having fought against the will of God by triggering wars against Iran and Kuwait and leading his people into decades of suffering and sorrow.
Once again, the punishment in such cases is death by beheading.
For years Saddam dismissed religion as "a relic of feudalism." In his last years, however, he tried to develop an Islamic image. If he were tried under Islamic law, he'd certainly be found guilty in a single sitting of the court and face beheading the same day.
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11:01 AM
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