By M. Cherif Bassiouni
(Professor and the president of the International Human Rights Law
Institute at DePaul University College of Law)
Chicago Tribune
April 2, 2006
http://www.chicagotribune.com/news/opinion/chi-
0604020336apr02,1,3345595.story
A Muslim's conversion to Christianity is not a crime
punishable by death under Islamic law, contrary to the
claims in the case of Abdul Rahman in Afghanistan.
While there is long-established doctrine that apostasy
is punishable by death, that has also long been
questioned by Islamic criminal justice scholars,
including this writer.
There are 1.4 billion Muslims who live in more than
140 countries. They constitute the great majority in
53 countries that declare themselves to be Muslim
states. Most of these states have constitutions that
guarantee freedom of religion, as does the Afghani
constitution. Most of these states have criminal codes
that do not include apostasy as a crime. Among them
are: Algeria, Egypt, Indonesia, Iraq, Jordan, Lebanon,
Malaysia, Morocco, Syria, Tunisia and Turkey.
Other Muslim countries, however, criminalize apostasy
on the basis of doctrinal constructs established in
the 7th and 8th Centuries, which have been mildly
questioned over the years or simply sidestepped.
States that recognize it as a crime punishable by
death include Iran, Nigeria, Pakistan, Saudi Arabia
and Sudan. However, there are no known cases in recent
times in which someone charged with apostasy in these
countries has been put to death.
The principal category of crimes in Islam is called
hudud. These crimes are referred to in the Koran and
thus require prosecution. They are: adultery, theft,
transgression (physical aggression), highway robbery,
slander and alcohol consumption. Apostasy is included
in this list by most scholars, but not by a few
others. The Koran refers to it as follows: "And
whoever of you turns [away] from his religion [Islam]
and dies disbelieving, their works have failed in this
world and the next [world]. Those are the inhabitants
of fire: therein they shall dwell forever." Surat
(chapter) al-Ma'eda, verse 35. This verse does not
criminalize the turning away from Islam, nor does it
establish a penalty.
Turning away from Islam, which is translated as
apostasy, would not have been considered a crime,
except the Prophet Muhammad (praise be upon him) in
the 7th Century applied the death penalty to a Muslim
who turned away from Islam. Historians of the Sunnah,
the tradition established by the Prophet and deemed
binding upon all Muslims, failed to note a significant
fact about that case--that person not only had a
change of faith, but decided to join the enemies of
Islam at a time of war, thus making it a crime of high
treason. Such a crime exists in all legal systems,
many with the death penalty.
The Prophet's application of the death penalty was
used by Muslim scholars in combination with the verse
cited above as a legal basis for making apostasy,
namely, change in religious belief, a crime punishable
by death. These scholars have overlooked the passage
to the enemy at a time of war, which was the most
important element in the Prophet's decision in that
case. They have also overlooked two important factors.
The first relates to the Koran, the highest binding
source of Islamic law, which contains a fundamental
principle stated in unequivocal terms: "Let there be
no compulsion in religion," Surat Al-Baqarah, verse
256. (Laa ikraaha fid diin) Surely this overarching principle cannot
be transgressed by forcing a person under penalty of
death to espouse Islam even after such a person
professes to have renounced it.
The second overlooked factor relates to the Prophet's
Sunnah, which is the second source of law. In another
case, the Prophet reached a different outcome. In this
case, which shows the considerate and gentler face of
Islam, a man was brought to the Prophet and accused of
turning away from Islam. He was seen throwing his
spear into the sky and screaming, "I want to kill you
God!" The Prophet inquired of the man if that was
true, and then asked for his reasons. The man said
that God had killed his beloved one that he was soon
to marry, and that he wanted to kill God for that. The
Prophet, addressing the accusers, said, "Is it not
enough for you that he believes in God enough that he
wants to kill him?" And he let the man go.
Interestingly, all these scholars qualified the
application of the death penalty with a time-lag to
allow the apostate to change his/her mind. This period
varied from one to 10 days. If all scholars agree to a
period of time, and there can be no compulsion in
religion, then why is it not valid to say that the
person's natural life is the appropriate period of
time? After all, the applicable Koranic verse refers
to those who "die as disbelievers." By shortening
their natural life, such condemned persons are
deprived of the opportunity to make the choice of
returning to Islam. If they do not, then their
punishment is in the hereafter, and not in this world.
The Koran is the last of God's divine revelations and
it is specifically stated therein that Islam is the
continuation of Judaism and Christianity. "We believe
in God, and in that which has been bestowed from on
high upon us, and that which has been bestowed upon
Abraham and Ishmael and Isaac and Jacob and their
descendants, and that which has been vouchsafed to
Moses and Jesus; and that which has been vouchsafed to
all the [other] prophets by their Sustainer: we make
no distinction between any of them. And it is unto Him
that we surrender ourselves." Surat Al-Baqarah, verse
136. It would be contrary to this recognition to
criminalize, let alone execute, a person who embraces
Judaism or Christianity.
Why these issues were not raised in the Rahman trial
in Kabul and with the government of Afghanistan is
surprising.
Regrettably, contemporary Muslim scholars do not
sufficiently address controversial issues
long-established in tradition for fear of having to
face the wrath of the traditional religious
establishments in the Muslim world. And they are also
reluctant to do so in this country, because of
consistent attacks against Islam by certain religious
and political groups who have their own agenda. The
media have regrettably abetted this agenda by negative
portrayals of Islam and Muslims. Admittedly, such
situations as in Afghanistan, the horrendous crimes
committed by the jihadists in Iraq, indiscriminate
bombings, aerial attacks in the U.S., suicide bombings
in Europe and Israel, lend credence to anti-Islam
negativism.
Muslim scholars must assume their responsibilities in
responding to such negativism, and also by condemning
the wrongs committed in the name of Islam.
M. Cherif Bassiouni, a professor and the president of
the International Human Rights Law Institute at DePaul
University College of Law
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