Legalizing suicide attack by religious state’s institutions
This article is prepared to assist practicing lawyers to do their legal job in fighting against extremism and in the right to life using the legal procedures against state institutions which legalize extra judicially killing against non-Muslims. The article illustrates the legal procedures and the laws that the lawyers can rely on while defending victims or fighting against extremism.
This article, will illustrate the background about Islamic Fiqh (Jurisprudence) Academy (IFA), addressing some of the fatwas the IFA issues regarding killing and takfeer “charge of unbelief” and some issues related to the rights of minorities or sects. Then, the article will suggest what legal measures can be taken to face such types of fatwas. Since we have not had any practical legal experience in confronting this type of extremism, these proposals will initiate the discussion for the purpose of reaching the best legal means to confront such extremist fatwas.
The state has established a governmental religious body that represents the official religion of the state, meaning that it is the only tasked body to interpret religion and issue fatwas, and has the right to decide who is a true Muslim and who is not, and determine the righteous communities and the misguided ones, or more precisely, the official Islam as understood by scholars of the Islamic Fiqh Academy (IFA).
The Islamic Fiqh Academy (IFA) in Sudan was established by a special law passed by the National Assembly in 1998, and it became the successor to the Sharia Fatwa Council, which had been doing this job in a limited capacity, but it was also the source of the type of collective fatwa issued by a council, not by one person, as is the case in the mufti system adopted by many Muslim majority countries, and was also previously used in Sudan. IFA Council consists of forty people and represents the official religious institution of the state. The council issues fatwas, guidelines and recommendations on any issue, provided that the given issue has not been brought before the competent courts or the any court has decided upon them.
Objectives and terms of reference
The Islamic Fiqh (Jurisprudence) Academy Law of 1998 defines a set of objectives and terms of reference, including the following:
- Developing a comprehensive strategy for rooting the jurisprudence [fiqh] movement in Sudan.
- Developing and promoting scientific research with an Islamic vision, in a manner appropriate to both fundamental as well as modern principles.
- Organizing and supervising various scientific meetings (conferences, symposiums, debates, etc.).
- Follow-up of intellectual, cultural and social phenomena.
- Establishing and fostering efforts to revive the duty of Ijtihad (independent or original legal reasoning) – particularly collective jurisprudence reasoning.
- Providing optimal juristic options and initiating proposals that IFA deems appropriate for the state’s bodies, with the approval of the Secretary General.
It is clear from these objectives and terms of reference that they are an invitation to adopt a specific jurisprudential trend as the correct interpretation of religion. The (IFA) has followed this fundamentalist trend, calling for fighting the Shiite community, and issuing a number of fatwas intended to limit the phenomenon of Islamic Sufism which is very popular in Sudan. For example, The (IFA) issued a fatwa forbidding congregational remembrance of Allah (dhikr) which has been a well-known method of worship for Sufis. The (IFA) also published a set of researches that prohibit some of the acts and sayings that Sufis use in their worship. For example, and not limited to, The (IFA) published a summary of Allusi's comments on the sayings and acts of Sufis in the Journal of the Islamic Fiqh Academy (6th Issue 2011).
As we have indicated above, one of the goals of the council is to follow up on intellectual, cultural and social phenomena, and practical experience has shown that many issues were referred to the (IFA) in order to ensure the integrity of the ideas of religious communities and their conformity to the correct doctrine of Islam. For example, the issue of the Quranists in Al-Nasr Court in Khartoum was referred to IFA to discuss the members of the sect and make them quit their [deviant] intellectual doctrine. The Hajj Youssef Court in Khartoum also commissioned a member of the (IFA) to discuss with Maryam Yahya in order to convert her back to Islam, and the court gave that member a wide opportunity to speak to her. On the other hand, the National Intelligence and Security Service (NISS) arrested many people belonging to certain sects or who had unconventional ideas or different ways of readings of Quranic verses or hadiths, and referred many of them to the (IFA). This clearly explains that the (IFA) represents a unilateral approach that seeks to spread and impose the fundamentalist Salafi approach exclusively.
Legalizing Extra judicially Killing
From this Salafi standpoint, the (IFA) began issuing a number of fatwas based on differentiating and discriminating against others because of their religion or the sect they belong to, and in this article we will address the fatwa regarding the killing of innocents in suicide operations issued by the (IFA) in support of killing those who do not carry weapons to fight simply because they are non-Muslims. The text of the fatwa is as follows:
“(IFA) has discussed the subject of martyrdom operations, and a discussion took place on the issues involved in the case, including the killing of one who does not fight – including children and women, such as when one commits suicide, to infuriate the enemies of Islam. The (IFA) issued their fatwa on this matter as follows: in a meeting of the head and the rapporteurs of the IFA’s departments that was held on Tuesday evening (15th Safar 1422 AH / 5/8/2001) at IFA’s headquarters in Khartoum, a fatwa was issued regarding the status of martyrdom and martyrdom operations, the text of which is as follows: “The basic principle is that everything that the mujahid does with the intent to enrage the enemies of Islam and disgrace them is an act of virtuousness and is therefore recommended, and that everything that terrorizes the enemies of Allah, the enemies of His Messenger and Muslims is required. He who aims to kill as many souls as he can on the side of the enemies, defeating them, provoking them, and terrorizing them, seeking the acceptance of God the Almighty and his favors, so he attacks a multitude of people from the enemies or throws himself into them even if he knows that he will likely be killed, this is a jihad and a legitimate martyrdom work based on the legal evidence and understanding of the Companions and the Predecessors, may God be pleased with them, and they did it in their times. She had great interests for him and the nation are realized because of such act, including: 1. the person demanded martyrdom; 2. he encourages Muslims to attack the enemy; 3. he upset the enemy; 4. the act weakens the moral of enemies so they see that this is the act of only one of them, so how about the act of many of them.”
This fatwa supports the killing of innocent citizens, including children and women, based on the fact that whoever are meant to be killed are the enemies of Islam, without the slightest diligence to define the phrase "the enemies of Islam", and this will open the door wide for everyone who wishes to kill an enemy based on his own definition. As for the most dangerous bit in the fatwa, it is the granting of the instrument of permissibility to kill a person outside the law (extrajudicial killings), even if it is a child or a woman. In this case, the role of the state institution in violating human rights principles intersects with the role of people outside the state institution (non-state actors) in violating these rights. Hence, the state provides the religious cover of carrying out terrorist operations by persons outside its institutions.
However, the crucial question is the following: To what extent can this fatwa provide legal justification for extrajudicial killings?
Undoubtedly, international human rights treaties prohibit discrimination against others on any grounds, as well as extrajudicial killings. In accordance with Article 2 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights, and pursuant to numerous declarations and other United Nations conventions, each person is entitled to enjoy the right to life without discrimination of any kind, and all persons shall be guaranteed effective and equal access to remedies for violation of this right .Moreover, Article 4, paragraph 2, of the International Covenant on Civil and Political Rights states that exceptional circumstances, such as internal instability or any other public emergency, should not be invoked to justify any derogation from an individual's right to life and personal security. It also contains a general recognition of the right to life of every person, as provided for in the above-mentioned international instruments.
As for national laws, the Criminal Code specified unambiguous reasons for legalizing killing, such as the right to self-defense, the act of a minor under the age of seven, the act of an insane person, etc. Nonetheless, none of them include taking the opinion of a religious institution like IFA. However, in practice it has been proven that the Sudanese courts considered a number of assassinations that took place in separate locations as legitimate acts and even relied on them in issuing their ruling against a person accused of apostasy. (See the article: Violation of FoRB by non-state actors). However, this fatwa or the practice in a number of courts is in no way considered to be a legal justification for discriminating against others and considering them as enemies, and therefore it is not permissible to kill them outside the framework of the law.
The case also raises the second question about the accountability of a religious institution such as IFA for the behaviour of a person based on this fatwa?
These fatwas are abundant in many different religious institutions and groups in the Middle East, and many have relied on them to carry out terrorist operations or kill an individual based on the fact that the act was intended to draw the perpetrator closer to God. During the trial of the killer of the Egyptian writer Faraj Fouda who was shot to death, the killer described Fouda as an "apostate" "and that “an apostate must be kill”, and issued a fatwa that it is permissible for the citizens of a nation to establish hudūd “boundaries – punishments directly ordained by Allah” when they are disabled. Although this Avtata on the right of power, but there is no Punishment for that, and this means that it is not permissible to kill those who killed Faraj Fouda as he put it. When asked about whether he had actually read the books published by Fouda he stated that he had not read them, but instead he based his act on fatwas issued by religious institutions and clerics.
Consequently, such fatwas have an impact on a wide section of people, and so those who issue these types of fatwas must be accountable, whether they are individuals, groups, or institutions recognized by the state. Article 3 of the Criminal Code of 1991 defines the word "person" as including the natural person, every company, association or a group of people, whether or not they are corporate persons. Based on this definition, institutions with legal personality, such as IFA or other groups, even if they do not have a legal personality, are fully criminally responsible for committing any act contrary to the law.
Moved to the last part, which is the legal adaptation of fatwas that allow extrajudicial killing. According to the Sudanese Criminal Law of 1991 this type of fatwa falls under the risk of incitement to commit a crime.
Thus, expressions such as: “everything that the mujahid does with the intent to enrage the enemies of Islam and disgrace them is an act of virtuousness and is therefore recommended”, and “everything that terrorizes the enemies of Allah, the enemies of His Messenger and Muslims is required” and “demanding/pursuing martyrdom” and other similar expressions that were mentioned in the text of the fatwa must have an effect on the mind of the well-intentioned person and it will create the temptation to commit this act. Consequently, it is an incitement that the person who issued the fatwa is responsible for, whether it is an individual or an institution such as IFA.