DEL HECHO DE TRÁNSITO

Historically, different groups fought against their rulers and in doing so few groups had used violence against the civilians in order to terrorise the rulers and the population.332 _{The rulers} had also very conveniently labelled them as terrorists or Kharijites due to the nature and violent consequences of their action. For example, there is evidence that the Umayyads and early ‘Abbasids attempted to invoke the hirāba verse in the context of dealing with rebels.333 _From majority classical exegetical point of view, as most of the Muslim jurists have maintained that a group must be recognised as rebels even if they fight against the ruler and his army as well as Muslims and civilians334, such group must not be categorised as terrorists to deny their rights as rebels.

However, in practice they have not been recognised as rebels but as terrorists and had been tried under respective criminal laws.335 For example, the trial and sentence to death of those accused of assassination of President Anwar Sadat were in accordance with the Egyptian Criminal Code without considering Article 2 of the Constitution which has made such sentencing unconstitutional. 336 In 1982, the attorneys representing those accused of assassinating President Anwar Sadat argued that according to Article 2 (as amended on 22 May 1980) of the Egyptian Constitution, a sentence pronouncing the death sentence on political criminals would be unconstitutional.337 The argument was that those who assassinated

332 _{ʽAbd Allah al-Qayrawani Ibn Abi Zayd, al-Nawadir wa al-Ziyadat ‘ala ma fi al-Mudawwana min Ghayriha}

min al-Ummahat (Beirut: Dar al-Gharb al-Islami 1999) XIV: 541;

333 _{Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 27; see also}

Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 78, 230.

334 _{Zayd al-Dīn ibn Najīm, Al-Bahr al-Rā’iq Sharh Kanz al-Daqā'iq, vol 5 (2nd ed, Beirut: Dār al-Ma‛rifah, n.d.)}

151; Muhammad Amin Ibn ‛Ābidīn, Hāshiyah Radd al-Muhtār, Vol. 4 (Beirut: Dar al-Kutub al’Ilmiyya 1994) 262; Zakariyyā ibn Muhammad ibn Ahmad ibn Zakariyyā al-Ansārī, Manhaj al-Tullāb (Beirut: Dār al-Kutub al- ‛Ilmiyyah, 1997-8/1418) 123; ‛Alī ibn Sulaymān al-Mirdāwī, Al-Insāf fī Ma‛rifah al-Rājihmin al-Khilāf ‛alā

Madhhab al-Imām Ahmad Ibn Hanbal, vol 10 (Beirut: Dār Ihyā' al-Turāth al-‛Arabī n.d.) 310; Muwaffaq al-Dīn

‛Abd Allah ibn Ahmad ibn Qudāmah, Al-Mughnī: fī Fiqh al-Imām Ahmad Ibn Hanbal al-Shaybānī, vol 9 (Beirut: Dār al-Fikr 1984) 3; ‛Alī ibn Ahmad ibn Sa‛īd ibn Hazm, Al-Muhallā, vol 11 (Beirut: Dār al-Āfāq al-Jadīdah n.d.) 97; Muhammad Abu Zahrah, Al-Jarimah wa al-Qqubah fi al-Fiqh al-Islami (Cairo: Dar al-Fikr al-Arabi 1998) 126; see also Muhammad Hamidullah, Muslim Conduct of State (5th _{edn, Lahore: Ashraf Press 1968) 177; Tamara}

Sonn, ‘Irregular Warfare and Terrorism in Islam: Asking the Right Questions’, in James Turner Johnson and John Kelsay (eds), Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic

Tradition (New York: Greenwood 1990) 135; Donna Arzt, ‘Heroes or Heretics: Religious Dissidents under

Islamic Law’ (1996) 14 Wisconsin International Law Journal 349, 376; Muhammad Hashim Kamali, Freedom of

Expression in Islam (rev. ed, Cambridge: Islamic Texts Society 1997) 19; John Esposito, Unholy War: Terror in the Name of Islam (OUP 2002) 41.

335 _{Mark Irving Lichbach, The Rebel’s Dilemma (University of Michigan Press 1998) 40; see also William}

Montgomery Watt, The Formative Period of Islamic Thought (Oneworld Publications 1998) 22; see also Jeffrey T. Kennedy, Muslim Rebels: Kharijites and the Politics of Extremism in Egypt (OUP 2006) 27.

336 _{Case no. 7 for the year 1981, High Military Court for National Security cited by Shawqi Khaled, Muhakamat}

Fir’aun (Cairo: Sina Lil Nashr 1986) 48; see also Omar Abd al-Rahman, Kalimat Haq (Cairo: Dar al-itisam, n.d.)

32.

163

President Sadat were bugha, and since Article 2 provides that “the principles of the Shari‘a are the main source of legislation in the Arab Republic of Egypt” the court could not assess the death penalty without contravening the Shari‘a.338 _{However, the military tribunal ignored this} argument in passing the death sentence on certain defendants.339 Furthermore, the Egyptian Criminal Code does not use the term bugha to adopt the meaning emphasised in Islamic law; article 101 describes those who conspire or plot to overthrow the government as bugha, but otherwise no substantive aspect of law of rebellion is adopted.340

Similarly, several defendants accused of terrorism were denied their status as rebels under Islamic law and tried as well as sentenced under Kuwaiti Criminal Code in 1989.341 The attorney for the defendants argued to the court that according to Islamic law his clients were

bugha and therefore should not receive death sentence.342 After pronouncing death sentence on several of the defendants, the judge chided the attorney for arguing outside his brief; then the judge noted that he was bound by the Kuwaiti Criminal Code and not Islamic law.343 Of course, this course of actions is inconsistent with the classical juridical position but few modern Muslim jurists have supported this. At this point, classical Islam comes into clash with modern Islam.

The language, symbolism, and boundaries of the two categories (crime and rebellion) were often diluted and mixed, not just in historical practice, but in legal discourse as well.344 Therefore, it is expedient to settle the disagreement between the modern and the classical jurists about the status of rebels in Islamic law. As stated earlier, both the classical and modern jurists have been divided on this point as both maintain that rebels are criminals on the one hand and not on the other.345 If fine lines can be drawn between jihad, rebellion and terrorism then why this disagreement cannot be settled in the light of these fine lines.

338 _{Omar Abd al-Rahman, Kalimat Haq (Cairo: Dar al-itisam, n.d.) 32.} 339 _{Shawqi Khaled, Muhakamat Fir’aun (Cairo: Sina Lil Nashr 1986) 48.}

340 _{Khalid Rashid al-Jamali, Ahkam al-Bughah wa al-Muharibin fi al-Shariʻa al-Islamiyya waq al-Qanun}

(Baghdad: Dar al-Hurriyya 1977) I:308; see also Mahmud Mustafa, Sharh Qanun al-‘Uqubat: al-Qism al-‘Amm (Cairo: n.p. 1964) 48; Ahmad Asʽad, Qanun al-‘Uqubat al-Misri (Cairo: n.p. 1964) 161.

341 _{Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James}

Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in

Western and Islamic Tradition (Greenwood Press 1990) 168.

342 _Ibid. 343 _Ibid.

344 _{Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 56.}

345 _{Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James}

Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in

164

Certain jurists insist that baghy is an offence that results in the greatest corruption because it results in the destruction of life and property.346 Maliki and Hanbali jurists have maintained rebels as criminals and advocated imposition of hudud (capital) punishment.347 Hanafi and Shaf’i schools have maintained that rebels are not criminals348 _{and so did Ibn Taymiyyah.}349 _In addition, majority of the modern Muslim jurists have maintained that rebels are not criminals.350 On the contrary, very few modern Muslim jurists have maintained that rebels are criminals and should be punished for crimes committed by them.351

Maliki and Hanbali schools have failed to draw a dividing line between rebellion and terrorism and have focused more on the superior right of the ruler to suppress disorder (fitna) and maintenance of stability in the state. So did the Shafʻi School as it focused on the legitimacy of the ruler rather than the rebellion. This is due to the circumstances during classical period where conflict of interests between the rulers and the ruled were very acute than ever. On the other hand, Hanafi School has maintained a two-phased stance where it recognised the right of rebels and the rulers to use force.352 Furthermore, where some other Hanbali jurists and Ibn Taymiyyah have maintained that rebellion is not a sinful act and some Shafʻi jurists argued that it is not a derogatory term and it makes the position of the right of the rebellion stronger than the right of the ruler to suppress rebellion.

On this account, it can be concluded that, the majority scholarly view, both classical and modern, recognises the right of rebellion and in opposition to criminalisation of any actions carried out in the course of rebellion.353

346 _{Ahmad Al-Sawi, Bulghat al-Salik li Aqrab al-Masalik ila Madhhab al-Imam Malik ʽala al-Sharh al-Saghir}

(Cairo: Mustafa al-Babi al-Halabi 1954) 11:414.

347 _{Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations (Palgrave Macmillan 2011) 152.} 348 _{See section 4.1 of this chapter (above).}

349 _{Ahmad Ibn Taymiyyah, Al-Khalifah wa al-Mulk (Jordan: Makhtab al-Manar 1994) 89.}

350 _{Khaled Abou El-Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 5, 8, 20;}

Khaled Abou El-Fadl, ‘Political Crime in Islamic Jurisprudence and Western Legal History’ (1998) 4 U.C. Davis Journal of International Law and Policy 2; Muhammad Hamidullah, Muslim Conduct of State (5th _{edn, Lahore:}

Ashraf Press 1968) 179; Ann Lambton, State and Government in Medieval Islam: An Introduction to the Study of

Islamic Political Theory: The Jurists, vol 36 (OUP 1981) 210.

351 _{Fazlur Rahman, ‘The Law of Rebellion in Islam’, in Jill Raitt ed., Islam in the Modern World (University of}

Missouri-Columbia, n.d.) 1; see also John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminister John Knox 1993) 88.

352 _{Khaled Abou El-Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 234.} 353 _{Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James}

Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in

165

4.4.3.1 The Assassination of political leaders by rebels

As stated above, politically motivated use of force with a desire for private gain354 _{rather than} religiously motivated act with a desire for ideological gain is likely to be a crime. The extension of the nature and scope of use of force in rebellion by certain non-state armed actors in Muslim countries have triggered the criminalisation of such use of force.355 It was their extended use of force which is not allowed in Islam. Caliph Umar al-Khattab executed six or seven men who killed someone through ghila (by deception or stealth which could be an assassination) as he tried these men for the crime they committed.356 Effectively, Murder through ghila is considered an aggravated crime which necessitates that the offender be executed, and that the option of blood money or pardon is not be allowed.357

The majority Muslim jurists have also held the view that political assassination is an act of terrorism and the perpetrator should be punished for committing crime.358 Shayakh Abu Zahrah (1898-1974) has suggested that assassination of political leaders is terrorism.359 Moreover, Ibn Taymiyya noted that a political assassin should be treated as a terrorist because of the public corruption that such a person carries.360 Ghanim has also linked President Sadat’s assassination with political gain and suggested that the killing of Sadat was an act of terrorism that had its roots in the sectarian splits that marked early Islamic political history, specifically the bloody conflict between the factions of ‘Ali and Muʻawiya.361

The above scholarly positions suggest that the scholars denote assassination of political figures as terrorism due to the nature of the act. However, Islamic law draws the dividing line between terrorism and rebellion on the basis of contextual circumstances rather than on the nature of the act.362 _{Like terrorism, rebellion could take the form of an assassination attempt against a}

354 _{Al-Shaybani, The Islamic Law of Nations: Shaybani’s Siyar (Majid Khadduri tr, Baltimore: John Hopkins}

Press 1966) 250.

355 _{See section 4.2.2 (above).}

356 _{Abu ‘Abd Malik b. Anas, Al-Muwatta’ (Beirut: Mu’assasat al-Risala 1993) 487; see also Abu Jaʽfar al-Tusi,}

Al-Mabsut fi FIqh al-Imamiyya (Tehran: al-Maktabah al-Murtadawiyya 1387 AH) VII:270.

357 _{Abu Jaʽfar Muhammad Al-Tabari, Jamiʽal-Bayan fi Tafsir al-Qur’an (Beirut: Dar al-Maʽrifa 1989) V:136; see}

also ‘Abd Allh b. ‘Abd al-Rahman Ibn Abi Zayd, Al-Nawadir wa al-Ziyadat ‘ala ma fi al-Mudawwana min

Ghayriha min al-Ummahat (Beirut: Dar al-Gharb al-Islam 1999) XIV:475; J.N.D Anderson, ‘Homicide in Islamic

Law’ (1951) 13 Bulletin of School of Oriental and African Studies 811, 812.

358 _{Khaled Abou El Fadl, ‘Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam’ in James}

Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in

Western and Islamic Tradition (Greenwood Press 1990) 166.

359 _{Muhammad Abu Zahrah, Al-Uqubah (Dar-al-Fikr-al-Arabi n.d.)147.}

360 _{Ahmad Ibn Taymiyya, al-Siyasa al-Sharʻiyyah fi Islah al-Raʻi wa al-Raʻiyya (Beirut: Dar al-Afaq 1983) 74.} 361 _{Fathi Ghanim, Wazarat al-Awqaf (Dirasat fi-al-Islam no. 243: Oktober 1981) 21, 28 Sept 198.}

362 _{Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press 2001) 4; see also}

166

famous religious or political figure.363 But Islamic contextual treatment of the criminality of an act would appear to show that the dividing line between terrorism and rebellion can be drawn on consideration of the context and circumstances in which it is committed. As shown above, if the context is solely political or material gain then it is likely to be an act of terrorism. On the contrary, if the context is solely ideological or a mixed of both political and ideological but the primary purpose was the former than the latter then it is likely to be an act carried out in the course of rebellion.364 _{For this reason, the assassination of the then Egyptian President} Anwar Sadat by “jama’a al-Islamiya” was an act of terrorism rather than rebellion.