Qisas
Qisas or Qiṣāṣ is an Islamic term interpreted to mean "retaliation in kind", "eye for an eye", or retributive justice. In traditional Islamic law, the doctrine of qisas provides for a punishment analogous to the crime. Qisas is available to the victim or victim's heirs against a convicted perpetrator of murder or intentional bodily injury. In the case of murder, qisas gives the right to take the life of the killer, if the latter is convicted and the court approves. Those who are entitled to qisas have the option of receiving monetary compensation or granting pardon to the perpetrator instead.
Qisas is one of several forms of punishment in traditional Islamic criminal jurisprudence, the others being Hudud and Ta'zir. The legal systems of Iran, Pakistan, Saudi Arabia, United Arab Emirates, Qatar and some Nigerian states currently provide for qisas.
Islamic scriptures
Quran
The Qisas or equivalence verse in Quran is,The Qur'an allows the aggrieved party to receive monetary compensation instead of qisas, or forfeit the right of qiṣāṣ as an act of charity or in atonement for the victim family's past sins.
Hadith
The Hadiths have extensive discussion of qisas. For example, Sahih Bukhari states,Many premodern Islamic scholars ruled that only diya and not qisas was available when the victim was a non-Muslim dhimmi and to non-Muslim slaves owned by a Muslim, based on hadith.
Traditional jurisprudence
Traditional Islamic jurisprudence treats homicide as a civil dispute, rather than an act requiring corrective punishment by the state to maintain order. In all cases of murder, unintentional homicide, bodily injury and property damage, under traditional Islamic law, the prosecutor is not the state, but only the victim or the victim's heir. Qisas can only be demanded by the victim or victim's heirs.According to classical jurists of the Shafi'i, Maliki and Hanbali schools, qisas is available only when the victim is Muslim, while the Hanafi school took a different stance on this point.
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. Most scholars of Hanafi school of fiqh ruled that, if a Muslim killed a dhimmi or a slave, Qisas was applicable against the Muslim, but this could be averted by paying a Diyya. 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. According to Fatawa-e-Alamgiri, a 17th-century compilation of Hanafi fiqh in South Asia, a master who kills his slave should not face capital punishment under the retaliation doctrine.
Non-Hanafi jurists have historically ruled that Qisas does not apply against a Muslim, if he murders any non-Muslim or a slave for any reason. Both Shafi'i and Maliki fiqh 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".
According to Hanbali legal school, if a Muslim kills or harms a non-Muslim, even if intentionally, Qisas does not apply, and the sharia court may only impose a Diyya with or without a prison term on the Muslim at its discretion. The Maliki fiqh 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. 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 fiqh was similar to Hanbali fiqh, and Qisas did not apply if the victim was a non-Muslim; 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. According to Hanafi school, neither Qisas nor Diyya applied against a Muslim or a dhimmi who killed a Musta'min who did not enjoy permanent protection in Dar al-Islam and may take up arms against Muslims after returning to his homeland.
Neither Qisas nor any other form of compensation applied in case the victim was an apostate, a person who has committed the hadd crime of transgression against Islam or Imam, 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.
Muslim jurists justified the discriminatory application of Qisas between Muslims and non-Muslims by referring to the following hadith.
Numerous Hanafi, Shafi'i and Maliki 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.
Current practice
Qiṣāṣ is currently provided for by legal systems of several countries which apply traditional Islamic jurisprudence or have enacted qisas laws as part of modern legal reforms.Iran
Through sections 1 through 80 of Iran's penal code, Qisas have been enacted as one of the methods of punishment. Iran penal code outlines two types of Qisas crime - Qisas for life, and Qisas for part of human body. 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.In one episode, 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. In 2011, Bahrami retracted her demand on the day the sentence was to be carried out, requesting instead that her attacker be pardoned.
A prisoner lodged in the Gohardasht Prison of the city of Karaj, was reported to have been blinded in March 2015 after being convicted for an acid attack on another man in 2009 and sentenced to the punishment under "qisas".
Pakistan
introduced Qisas and Diyat in 1990 as Criminal Law 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. Pakistani parliament enacted the law of Qisas and Diyat as Criminal Law Act, 1997. An offender may still be punished despite pardoning by way of ta'zīr or if not all the persons entitled to Qisas joined in the compromise. The Pakistan Penal Code modernized the Hanafi doctrine of qisas and diya by eliminating distinctions between Muslims and non-Muslims.Nigeria
Since the 1960s, several northern states of Nigeria have enacted sharia-based criminal laws, including provisions for 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.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. 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. 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: above the age of 15, has wet dreams, any appearance of pubic hair, or start of menstruation. Qisas principle, when enforced in Saudi Arabia, means equal retaliation and damage on the defendant.According to reports in Saudi media, 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 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. Other reported sentences of qisas in KSA have included eye gouging, tooth extraction, and death in cases of murder.
Qisas and honor crimes
According to most variations of Islamic Law, Qisas doesn't apply if a Muslim parent or grandparent kills their child or grandchild, or if the murder victim is a spouse with whom one has surviving children. The culprit can be, however, subject to Diyya which is payable to the surviving heirs of the victims or punished through Tazir which is a Fixed punishment given by the Judge or Ruler.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. 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.
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 to go unpunished. This, state Devers and Bacon, is why many honor crimes are not reported to the police, nor handled in the public arena. 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. However, the victim's heirs have the right to waive Qisas, seek Diyat, or pardon the killer.