Hirabah


Ḥirābah is an Arabic word for “piracy”, or “unlawful warfare”. Hirabah comes from the root ḥrb, which means “to become angry and enraged”. The noun ḥarb means “war” and/or “wars”. In Islamic law, ḥirabah is a legal category that comprises highway robbery, rape, and terrorism.
Moharebeh is a term that is treated as interchangeable with ḥirabah in Arabic lexicons. The related term muḥārib has been translated by English language Iranian media as "enemy of God". In English-language media sources Moḥarebeh in Iran has been translated variously as "waging war against God," "war against God and the state," "enmity against God." It is a capital crime in the Islamic Republic of Iran.

Scriptural basis

The verse 33 of Surah al-Ma'ida of the Qur'an, which is known as "the Hirabah Verse", specifies punishment for "those who wage war against God and His Messenger and strive to spread disorder in the land":
The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter;

The verbal noun form is frequently used in classical and modern books of Islamic jurisprudence, but neither the word ḥirabah nor the root verb ḥaraba occurs in the Quran.
According to early Islamic sources, the verse was revealed after some members of the Urayna tribe feigned conversion to Islam in order to steal Muslims' possessions and killed a young shepherd sent to teach them about the faith. In view of the broad and strong language of the verse, however, various state representatives beginning with the Umayyads have asserted that it applied to rebels in general.
The original meanings of the root ḥrb are to despoil someones wealth or property, and also fighting or committing sinful act. The Quran "refers to both meanings" in verses 2:279 and 5:33-34.

Crime

According to Islamic scholar Khaled Abou El Fadl, Hiraba in the Islamic context literally means "waging war against society" and in Islamic jurisprudence traditionally referred to acts such as killing noncombatants, "assassinations, setting fires, or poisoning water wells," crimes "so serious and repugnant" that their perpetrators were "not to be given quarter or sanctuary anywhere." Another source states, "many Islamic scholars interpret the references to acts that defy universal codes such as intentionally killing civilians during warfare or causing random destruction." According to author Sadakat Kadri, "Most classical jurists" had established "a thousand or so years ago" that Hiraba "referred specifically to banditry in open country: a uniquely destabilizing threat to civil order in a premodern society." The crime is sometimes lumped together with fasād fi-l-ʾarḍ, which is mentioned alongside waging "war against Allah and His Prophet" in 5:33-34.

Rape

The inclusion of rape within the purview of hirabah has had support throughout Islamic history.
The medieval Zahiri jurist Ibn Hazm defined hirabah as,
‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped … whether the attackers are one or many.'

It had significant support from the Maliki jurists.
Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba.
In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.

In the Hanafi school of law, the term zina is taken to refer to illegal sexual intercourse where rape is distinguished as zina bil jabr to indicate its forced and non-consensual nature whereas fornication and adultery fit zina bil ridha, which indicates consent. Though the terminology uses the term zina, nonetheless, they are two categorically different crimes as rape is treated as a tazeer crime by the judge and prosecuted based on circumstantial evidence. In other words, very similar to how it is treated in contemporary Western law. It is fornication and adultery by mutual consent, or zina bil ridha, which retain their classical hadd punishments from the Qur'an and sunnah provided there are four witnesses. Nonetheless, gang rape or public rape, such as the sort that occurs during war, is still traditionally considered hirabah as that is more in line with its classical definition as a war crime or crime against civilization and society.

Punishment

In keeping with the Quranic verse 5:33 quoted above, "most classical jurists" held that the penalty for muḥāribah was crucifixion, cross-amputation or being banished from the earth.
According to Sadakat Kadri the crimes of waging `war against God and His apostle` and spreading `disorder in the land` were originally punished either by exile or some combination of double amputation, beheading, and crucifixion. This was the only capital penalty permitted rulers by the Quran (in the case of murder the killer's fate was in the hands of the victim's next of kin not the judge during the early years of Islam "when enemies of the faith and political rebels often looked frighteningly similar" the crime had broader application including apostasy from Islam but was "gradually narrowed" to apply only to "highway robbery in the open county."
The choice of crucifixion and its method is subject to "complex and contested rules" in classical jurisprudence. Most scholars required crucifixion for highway robbery combined with murder, while others allowed execution by other methods. The main methods of crucifixion are:
Most scholars limit the period of crucifixion to three days.

Relation with jihad

, a Muslim lawyer who works for the Center for Understanding Islam, has suggested the use of the neologism hirabah to replace jihad when referring to Islamic terrorism. Crane, who asserts that "There is no such thing as Islamic terrorism", argues that to use jihad in English is to mirror the language of those terrorists, while the word hirabah uses the same religious vocabulary to stigmatize them. Jihad is a broad concept that literally means "struggle", while the root word of the neologism, hariba, means "to become angry and enraged" and is associated with the demonization of non-Muslims during the Crusades.

In current legal systems

Iran

In Iran, hiraba is known as "moharebeh" and is translated variously in English-language media as "waging war against God," "war against God and the state," or "enmity against God."
The charge is levied against people who commit acts against the government. Another related crime is Mofsede-fel-arz, which is "spreading corruption on the earth", which can be applied for political crimes such as treason. Both are often applied against armed robbers, kidnappers, and rapists.
The term is widely used by Iran's Islamic Judiciary, citing Sharia law, and is "usually used against those who take up arms against the state," and usually carries the death penalty. The term is used in articles 183 to 196 of Iran's criminal law. The cases that fall under this term typically require involvement in armed criminal activities, e.g: taking up arms for terrorism and disruption of public safety, membership in groups conducting armed uprising, supporting groups planning to overthrow the government by force using weapons and explosives, accepting critical posts a Coup d'etat government. Articles 190-191 state that judge can give a person convicted under one of these crimes capital punishment. Peaceful and unarmed opposition to government does not fall under this term. Typical convicts under the term are members of armed ethnic separatist groups, members of armed drug trafficking groups, and people involved in armed robbery.
According to Human Rights Watch, "at least nine people" convicted of moharebeh by Islamic Revolutionary Courts for "their alleged ties to armed opposition groups" were executed in 2014.
Between the end of early days of the 1979 Islamic Revolution, when scores of former officials of the Shah and others were arrested and executed for moharebeh, and the beginning of the 2009 election protests, executions for moharebeh were rare, and usually applied against members of armed opposition/terrorist groups, Kurdish separatists, or common criminals.
In recent years, Iranians executed after being charged with Moharebeh include Mohammad-Reza Ali-Zamani, Arash Rahmanipour, and Ehsan Fatahian. Others accused, charged or convicted of Moharebeh include Adnan Hassanpour, whose death sentence for Moharebeh was overturned in 2008 on appeal, and Zeynab Jalalian, whose death sentence was commuted to life in prison. Shia cleric Hossein Kazemeyni Boroujerdi, known for preaching that religion is separate from politics, was reportedly charged with Moharebeh in 2007 by Iran's Special Court for the Clergy, but had his sentence reduced to 11 years in prison after an appeal.
Student demonstrator Mohammad Amin Valian was sentenced to death for Moharebeh in 2009, a sentence overturned by an appeals court in March 2010. In March 2010, the 76-year-old former dean of Tehran University, Mohammad Maleki, was charged with it for alleged "contact with unspecified foreign groups and working to undermine the Islamic system." He was later convicted of lesser charges. Abdolreza Ghanbari, a university lecturer living in Pakdasht, was arrested in the wake of 2009 Ashura protests and convicted in 2010 of “Moharebeh through ties with hostile groups the regime”. A request for pardon of the death sentence was rejected on 28 February 2012.
In a February 2011 televised address before a group of clerics in the city of Qom, hard-liner cleric Ahmad Khatami accused reformist presidential candidates Mir Hossein Mousavi and Mahdi Karroubi of Moharebeh as "leaders of sedition." This was not followed up with any charges against the two by the Iranian judiciary.
Abdolfattah Soltani, an Iranian attorney and member of Center for Defense of Human Rights has argued that under Articles 86 and 89 of the Islamic Punitive Laws of the Islamic Republic of Iran, the accused must "either have engaged in armed confrontation or he must have been a supporter or a member of an armed group and must have committed effective actions on behalf of that organization.", conditions that have not been met by defendants such as Valian, who threw stones at militia members.
According to journalist, the Iranian Islamic regime's use of moharebeh against 2009 election protesters has "opened deep rifts between ruling clerics and Islamic scholars questioning how an idea about safeguarding Muslims can be transformed into a tool to punish political protesters." Ayatollah Mostafa Mohaghegh Damad has reportedly sought to "rally clerics to oppose the use of moharebeh charges against political protesters."
In 2019 an Iranian Quran interpreter has called for the punishment of those protesting, based on Quran Surah 5:33.

Nigeria

The penalty for hirabah in Nigeria is death if a life is taken during the offense. Additionally, the Zamfara penal code provides that if life and property are taken during the commission of hirabah, the penalty is crucifixion.

Saudi Arabia

In Saudi Arabia Hirabah is defined as "Armed Robbery". "To prove hirabah, two witnesses must testify or there must be a confession. In addition, an offender can still escape the death penalty if he "repents before he is arrested and willingly places himself in the hands of the authorities."