Human Rights in Muslim Understanding
By Dr. Christine Schirrmacher
When Christians are persecuted for their faith in Muslim countries, or when Muslims convert to Christianity and are threatened with the death penalty, the Western press accuses the Islamic state of human rights violations. At the same time, most Islamic states have ratified declarations such as the United Nations l948 General Declaration of Human Rights. How can they justify this contradiction?
In the last decades, various Islamic organisations have themselves formulated declarations of human rights. They have one basic difference to those of Western statements, however. Because that they give priority to the Koran and to the Shari’a (Islamic law), human rights can only be guaranteed in these countries under the conditions imposed by these two authorities and their regulations. Article 24 of the l990 Cairo Declaration of Human Rights, for example, states that “All rights and freedoms mentioned in this statement are subject to the Islamic Shari’a,” and Article 25 adds, “The Islamic Shari’a is the only source for the interpretation or explanation of each individual article of this statement.” This emphasizes the “historic role of the Islamic Umma, which was created by God as the best nation, which has brought humanity a universal and well-balanced civilisation, in which harmony between life here on earth and the hereafter exists, and in which knowledge accompanies faith”.
What does the priority of the Koran and the Shari’a mean for human rights iscussions? These two authorities insure that in Islamic states, human rights only exist within the limitation set by the religious values of Islamic revelation and are guaranteed only within the framework determined by the Koran and Islamic law. The secularized Westerner, molded by the Enlightenment and accustomed to separation of Church and State, has difficulties understanding that a country could determine its standards for political, social life, for private and public affairs, by the standards of religion.
Human Rights or Duties?
For this reason, Islamic apologists (defenders of the faith) are generally convinced that, while God has rights in regard to man, man has only duties towards God. Man must, for example, submit to God’s will and fulfill the Five Pillars of Islam whereas God has no duties towards man.
Civil Rights for Moslems and Non-Moslems
Islamic culture has never known any sort of separation of religion and cstate , or of politics and religion, while, in the Old Testament, a certain division of authority between the king and the high priest did exist. In Islam, Muhammad had unified both aspects in his own person, being simultaneously religious and political leader of the first Islamic community. His immediate successors, the Caliphs, also carried out both offices.
In the Islamic states, Islam is the state religion, to which all citizens are assumed to belong, and which is considered to be the “principle on which the State is built. The State is bearer of a religious idea and is, therefore, itself a religious institution … It is responsible for the worship of God, for religious training and for the spreading of the faith.” For this reason, the law must distinguish between the civil rights of Moslems, who can fully enjoy legal protection because they prove their loyalty to the state by their adherence to its religion, and the rights of non-Moslems, who, as traitors, forfeit their right to state protection because of their ‘unbelief’. In these countries, Moslems always have more rights than non-Moslems. A non-Moslem can usually not inherit from a Moslem, for example.
Change of Religion is High Treason
To be a Moslem means to be a citizen imbued with all legal rights, whereas to become an unbeliever is to commit high treason, for Islam is an “essential element of the basic order of the State”.
When a Moslem repudiates his faith, he rebels against that order and endangers the security and the “stability of the society to which he belongs”. Martin Forstner concludes, “Only he who believes in God and the divinely revealed Koran, and who obeys the Shari’a, is able to become a competent citizen, whereas the ungodly are enemies of society. The repeated duty to confess the faith – by fulfilling the five daily prayers, by fasting during Ramadan… is the medium by which the citizen’s morale is conveyed, so that the Islamic State links full civil rights to the confession of the true faith” .
When Islamic law is interpreted in its strictest sense, this ‘watchman’ function of the State over its citizens’ religion makes it impossible for human rights to be given priority over Islamic law when a Moslem gives up his faith, in spite of human rights declarations. When a Moslem commits high treason-according to the Moslem’ point of view-religious law must be obeyed, and that requires the punishment of the renegade. On the other hand, a non-Moslem can only enjoy those rights given him by the Koran and the Shari’a.
Freedom of Religion for Non-Moslems
Although the constitutions of many Islamic countries provide for freedom in exercising religious beliefs, non-Moslems almost always have great difficulties in practicing their faith. Moslems who have become Christians may even lose their lives. Still, Islamic countries claim to be tolerant and to guarantee freedom of religion.
In spite of the fact that freedom of religion is part of the law in most Islamic countries, their constitutions declare Islam to be the state religion. A few other faiths, such as Judaism and Christianity, are allowed a certain right to exist, so that their members are not required to convert to Islam, even if they live in an predominantly Islamic area, but they are never equal to Moslems before the law. They remain ‘second-class citizens’ with limited legal rights and are subject to the Islamic State, which defines the limits of their religious freedoms very strictly (including the building or re-pairing of churches, for example).
In most cases the Jewish or Christian faith must be excercised quietly, for “a Moslem citizen can not be expected to endure and continually resist the missionary activity of other religions”. Non-Moslem faiths, which are only tolerated and supervised, may exist only under the conditions imposed by the law, otherwise not at all.
Non-Moslems are forbidden to insult or disparage Islam, the Koran or the prophet Muhammad, which automatically occurs in Christian evangelisation, according to Moslem opinion. Moroccan law, for example, requires a prison sentence of six months to three years, as well as a fine of 200 to 500 dirham, for proselytizing a Moslem to another religion. Repudiation of Islam is still considered to be a crime worthy of death, whereas the Moslem has the right to proselytize others.
Conclusion: Islamic human rights declarations of all kinds continually insist on the authority of the Islamic faith, and can therefore only guarantee civil rights which respect Islam and its principles. This automatically restricts the rights of non-Moslems, so that under Islamic law, only the Moslem can enjoy all rights, for only he is considered to be a loyal citizen.
Non-Moslems have limited rights, but are allowed to exist. The Moslem who repudiates his faith loses all his rights, for he is considered a traitor to his country and to the state and may be subject to the death sentence either under the legal system or by his neighbors. This is emphasised in the “Draft for an Islamic Declaration of Human Rights”, which was composed by the Islamic Conference in Jidda in l979 .
This statement forbids the Moslem to ever change his faith. Not to condemn the renegade to death would be an offence against the Shari’a, and can thus not be guaranteed, not even within the framework of a human rights declaration.
When Moslems convert to Christianity – Apostasy and the Death Penalty in Islam
Does a Moslem have the right to desert Islam and turn to Christianity? Is faith a private matter or do the state and its organs have the responsibility to monitor and control it? Christianity and Islam view this question quite differently.
In our ‘enlightened’ Western world with its separation of Church and State, the personal belief of the individual is one of the most private areas of life – so much so that many are unwilling to even share the details of their faith. Many contemporaries consider their personal faith, which they have formulated according to their own convictions independent of the Church, for the ‘true faith’, a religion more valid than that of those who “are always running to church.”
The Islamic view is quite different: faith and religion are basically public affairs subject to the control of the state, although the measure of the control varies from country to country. Wherever Islam is the state religion and the very pillar of state order, the good citizen is expected to adhere to Islam; apostasy is treason.
The Koran on Apostasy: Wrath and Punishment
The mere unbelief of a man who denies God and refuses to submit to Him is, according to Islam, a serious sin. Whoever knows the Islamic faith but rejects it is guilty of an even more serious offence.
The Koran discusses apostasy in several places. Surah 16:106 mentions God’s wrath and the ‘grievous chastisement’ which a defector may expect. Surah 2:217 warns against leading believers into apostasy, for this offence, ” graver than slaughter”. The good works of the apostate count for nothing, for his apostasy will not be forgiven, so that he will be thrown into hell. Surah 3;86-91 describes the his reward: the curse of God, of men and of angels is on him (3:87; 9:67-68), there is no redemption, mediation or aid for the accursed. God can in no way forgive apostates (4:137), for they are unbelievers who have made themselves particularly punishable. It is interesting, however, that beyond eternal damnation, the Koran defines no concrete worldly penalty and no judicial procedure for the punishment of the apostate.
Apostasy “in the full possession of one’s mental faculties”
Apostasy from Islam’ (in Arabic: “irtidad”) means the proven, deliberate defection from Islam by a person either born Moslem or later converted to it. He must be in the full possession of his mental faculties and act of his own free will, not under coercion, before he can be condemned. Apostasy means the denial of the one true God, Allah and of his prophet, Muhammad. Islamic theologians, however, do not agree on a practical definition of apostasy. The Koran teaches the fact of apostasy, but fails to define it more clearly. Is the failure to perform the “Five Pillars of Islam” (confession, prayer five times a day, fasting during Ramadan, giving alms and pilgrimage to Mecca) apostasy?
If one has no legitimate reason for failing to pray five times a day, and shows no intention of improving, the Malikis, Shafi’ites and Hanbalis (three Sunni legal schools) consider him apostate, as the deliberate failure to pray is considered one of the gravest of sins. Abu Hanifa (father of the Hanafi school) believes such a person to be still a believer, but suggests imprisonment for his betterment until he is prepared to pray .
Should the individual unintentionally fail to fulfill the requirements of Islam, he is not apostate. His omission is still sin, to be penalized by the judge’s discretion . The sentence of apostasy depends on the sinner’s de-liberate refusal to obey.
Apostasy is Treason
Apostasy thus occurs not only when the confession of Islam is theoretically denied, but also when the practice of the faith is neglected. To depreciate Muhammad, to abuse a Koran (by burning or dirtying it, for example) or to revile one of the 99 most beautiful divine names are also apostasy. The practice of magic or the worship of images is also considered apostasy, for these are acts of idolatry. The belief in the transmigration of souls (reincarnation) can also constitute apostasy, for it denies the resurrection.
Even entering a church or showing interest in the Christian faith can be considered an act of defection. To suggest that Muhammad had any physical defects, to question the perfection of his knowledge, his morality or his virtue, or to defame the angels also constitutes apostasy. Since apostasy in Islam is not merely a private or ecclesiastical affair (by withdrawal of church membership, for example) as it is in Western society, the state must act. Apostasy is treason towards Moslem society (the “Umma”) and the undermining of the Moslem state, for Islam is the but-tress of society and the state itself. Apostasy erodes and shakes the foundations of the order of society – because it is treason, the state must prosecute it.
Islam requires the death penalty for apostasy
The Koran has little to say about judicial penalties for apostasy, but on the basis of Koranic warnings against it and the background of Islamic tradition, Islamic theology has formulated directions for the treatment and punishment of apostates. Only a minority of theologians believe the Koran’s warnings to appeal only to private conscience, for which the state has no responsibility . The Ahmadiya Movement, which is persecuted as a sect in Pakistan, opposes the death penalty for apostasy.
Surah 4:88-89 warns against hypocrites led astray by God. Such people have no hope of repentance and represent a danger for the Moslem fellowship, for “They desire that you should disbelieve as they have disbelieved, so that you might be (all) alike” (4:89). The text continues, “but if they turn back then seize them and kill them wherever you find them, and take not from among them a friend or helper.”
Imprisonment as an opportunity to repent
This verse, generally interpreted to be a concrete commandment on the treatment of the apostate, requires the death penalty for the offence. The renowned Egyptian theologian, Muhammad Muhammad Abu Zahra (1898-1974) speaks of three cases in which a Moslem may be punished by the death penalty; apostasy, bawdiness following a properly legal marriage and any murder except family vendettas .
The commandment to execute the apostate is, however, derived not so much from the Koran as from Islamic tradition, for the traditions from Mohammed’s lifetime are much more explicit: “Kill anyone who changes his religion”, and “He who separates himself from you (or repudiates the faith) must die” .
Tradition relates that Muhammad himself illegally mutilated and killed apostates who have been said to have killed some of his followers. J. Schacht discusses the Islamic attempt to justify Muhammad’s action , for which the Koran offers no clear revelation which would have commanded such a course of action. Other traditions exist as well, in which Muhammad at the end of his life, following the capture of his family’s city Mecca, executed two apostates who had killed a Moslem, as well as another who is reported to have done nothing illegal .
Judging by the sources, the death penalty seems to have been carried out on apostates after the prophet’s death , and modern Sunni and Shi’ite law generally agree that apostasy, blasphemy, ridicule of the Prophet or of the angels are to be punished by death. The accusation of apostasy must however be clearly proven, for example by the fact of blasphemy, ridicule of the Prophet, denial of the necessity of practicing the Five Pillars of Islam, or if the accused has participated in actions such as idolatry, magic, the abuse of the Koran or desertion to Islamic enemies.
Persecution by the family
Apostasy is basically an offence to be prosecuted by the state, once charges have been brought. Sometimes the relatives prefers to wash away the ‘shame’ of apostasy itself with an alternative ‘solution’ such as casting the offender out of the family , driving him out of the country or even killing him.
When a case of apostasy is brought before a judge, it must usually be confirmed by two male witnesses . In order to determine the defendant’s guilt, the judge may require him to repeat the Confession of Faith (“There is no god but Allah, and Muhammad is His prophet”). Refusal to pronounce the confession can be considered proof of apostasy.
The apostate must be in full possession of his mental faculties, if he is to be condemned, and cannot have given up Islam under coercion or intoxication. Children and the mentally retarded can, therefore, not be condemned of apostasy at all, and women only under particular circumstances, although the various judicial schools disagree on their liability.
The three Sunni schools, the Shafi’is, the Malikis and the Hanbalis, do not distinguish between men and women in this matter. The Malikis demand postponement of penalization if the woman is pregnant or nursing. The Hanafis allow the death penalty for male Moslems, but in analogy to Surah 24:2 and 4:15, they and the Shi’ites insist on a procedure by which an apostate woman is to be imprisoned and beaten every three days, or even daily, until she recants – at least in theory. The father of the Hanafi school, Abu Hanifa, also suggested slavery as punishment for women. – So much for theory.
In practice, the courts seldom deal with cases of apostasy. When Moslems convert to Christianity, they seem to be punished unofficially by their families or even by onlookers instead of fearing the conviction of a judge. Immediate private revenge does at least seem to frequently follow a Moslem’s declaration of his apostasy. Besides, judicial proceedings on apostasy provoke unwelcome attention in the Western press.
Although the apostate has a right to proper judicial proceedings, but, in practice, no Moslem who kills him even without giving him the opportunity to submit to a trial or to recant, will be accused of murder. The killer cannot even be officially charged of the offence, even though he has in theory acted wrongly. At the most, he might theoretically be accused of acting too quickly, since he failed to wait for the judicial system to act. In the eyes of Moslem society, however, he has committed no murder, for the execution of an apostate is not an offence.
The judge may decide to penalize the killer, but only with a mild punishment or even with an admonition . Thus, the renegade finds himself a sort of outlaw without any sort of legal protection . The same applies, when the apostate is brought to court but not condemned to death. His murderer only carries out valid law, as the Islamic legal dogmatist, Abdul Qader ‘Oudah Shaheed emphasizes, for the execution of an apostate, ac-cording to the Shari’a, is not a right, but the duty of every Moslem . In spite of such hard regulations, not every apostate suffers execution, either because he is able to fly, or because his environment threatens but does not carry out the penalty. There can, however, be other consequences:
Loss of Family, Home and Property
Whether or not the apostate is executed, usually other measures are taken, such as the confiscation of his property. The different schools of law hold varying opinions on the extent of the confiscation; some recommend that all property may be taken, while others permit only the property acquired since the defection . The Hanafis permit the offender to recover his property by returning to Islam, while the other three schools consign it to the state after his death .
Before his trial he will probably lose his job, and his family will possibly try to bring him back to the fold by the services of a Moslem clergyman, but if that fails, they may send him to a psychiatric clinic or out of the country or even expel him from the family.
His marriage is automatically dissolved, for marriage with an apostate is illegal, so that a male convert suddenly finds himself living in adultery with his own wife, who could also be stoned to death, if she refuses to leave him. Besides, no Moslem woman may be married to a non-Moslem. Should the apostate return to the faith, he must repeat the marriage ceremony to be legally married again. He may also expect further various consequences in matters of inheritance or property rights; an apostate is usually dispossessed. Should he move into a non-Islamic country, his homeland will consider him dead, so that his heirs inherit his property .
Apostasy is blasphemy
Moslem theologians disagree on the desirability of having a clergyman exhort the defector to recant before condemning him to death. Most re-commend admonition and suggest allowing the offender a certain period of time (three days, for example) to repent, but an avenger unwilling to wait need fear no judicial penalty.
The Malikis forbid the authorities to beat the prisoner during this period of reflection, but do not permit his burial in a Moslem cemetery, once a judge has ordered the execution . Should he repent, he is to be treated as a Moslem once again. If the offender has already turned from Islam several times, his return is more difficult. The Malakis and Hanbalis then demand execution in spite of any apparent repentance, while the Shafi’is regard each renewed return to Islam true repentance.
Theologians also disagree on the difference to be made between the apostasy of a convert to Islam and that of a person born and raised as a Moslem. They also hold different views on the expediency of the death penalty for a penitent apostate. According to Shi’ite theology, repentance is not sufficient to revoke the death penalty. This may be the reason that the death penalty pronounced on Salman Rushdie by Ayatollah Khomeini in his Fatwa (legal report) of February 14, 1989 was not revoked, when Rushdie publicly renounced his blasphemous novel, “The Satanic Verses,” and officially apologised for it. No Moslem born in Bombay and raised in England may disparage or insult either Islam, the Koran, the angels or the Prophet Muhammad as long as he lives, for fear of confirming the offence of apostasy.
Crucifixion or Decapitation
Islamic authorities demand that the defector from the faith – assuming that his guilt has been proven – be beheaded with the sword, but not tortured in any way. Other methods of execution are permissible. Crucifixion is one possibility. A tradition traced to Aisha, Muhammad’s favorite wife, requires the apostate to be executed, crucified or burnt . Caliph ‘Umar II is also said to have had apostates bound to a pole and pierced with a lance. Otto Spies cites further examples . Perhaps the best-known example is the condemnation of the mystic al-Hallaj, who was crucified as a heretic in Baghdad in 922 for his unorthodox doctrines.
Crucifixion is not carried out only on apostates. Islamic law also recommends it for violent street robbery involving murder or manslaughter (in Arabic: “qat’ at-tariq”) outside of the city boundaries. Rebels, ringleaders of mobs and heretics are to be crucified as well . Some theologians recommend crucifixion as the method of execution, while others prefer it as a deterrent following execution.
According to Islamic theology, the heretic (in Arabic: “zindiq”), an unbeliever pretending to be a Moslem, is the equivalent of an apostate. The Malakis and the Hanbalis require his execution without any opportunity for repentance, and independent of any repentance, for they identify him with the hypocrite (in Arabic: “munafiq”) so strongly condemned in the Koran, and thus demand an even heavier punishment for him than for the apostate.
If he repents before his execution, he may be buried in a Moslem cemetery, for he has died as a believer executed for his offence, not as an unbeliever . The Hanafis and the Shafi’is do not demand his execution, whenever he repents.
The divine miracle: Islam threatens the apostate with severe penalties, whether he has become a Christian or has rejected religion altogether. Exile, disinheritance, divorce, intimidation, loss of family and of job, threats, beating, torture, prison and even death are very real expectations for any Moslem who becomes a Christian, even though not all may take place. Only seldom does the miracle occur that the family of the convert accepts his decision or become Christian as well, but, otherwise, the new believer lives in constant danger of detection and persecution.
He can meet with other Christians only in great secrecy, and may not be able to find the love and acceptance he so greatly needs in his church, which may well fear Moslem spies. In spite of persecution and difficulties, the number of converts from Islam grows so steadily that it seems that more Moslems are becoming Christians than ever before.
God is building His church on the one spot where, according to human considerations, it cannot exist at all. It is the chief duty of any Christian living in the Western countries to publicly remind of the persecuted church to pray for converts and support them wherever possible.