About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


43 Harv. Int'l L.J. 53 (2002)
The Trial of Terrorists under Classical Islamic Law

handle is hein.journals/hilj43 and id is 59 raw text is: VOLUME 43, NUMBER 1, WINTER 2002 The Trial of Terrorists Under Classical Islamic Law Frank E. Vogel* This Essay addresses some of the legal issues inherent in the question: What would be the course of events if alleged perpetrators of the September 11 terrorist attacks were tried before a court that applied solely classical Islamic law? Such an inquiry has become relevant on numerous grounds. First, Is- lamic law is the law appealed to, at least as a matter of extremist religious propaganda, by the alleged perpetrators Osama bin Laden and his Al Qaeda [al-Qa'ida organization, and by the Taliban regime in Afghanistan, which has harbored them. Second, classical Islamic criminal law is the prevailing legal standard in a number of interested countries (these countries are dis- cussed further below). Third, ranging somewhat more broadly, Islamic law would be relevant if an international tribunal were entrusted with the trial of the terrorist offenders and that tribunal resolved to include, or was charged with including, Islamic jurisprudence among its sources of law. Such a tribunal would have to trace many of the steps considered in this Es- say. Fourth, Islamic law might become relevant if a Muslim judge were ap- pointed to a tribunal trying offenders. Regardless of the laws acknowledged by the tribunal, the issues raised in this Essay might pass through that par- ticular jurist's mind and influence his verdict and sentence. Lastly, and re- gardless of the court and law under which the perpetrators were tried, to the extent that Muslim peoples and states are influenced by classical Islamic legal precepts, they will evaluate any trial's process and outcome in part in relation to them. For purposes of this discussion, the scope of the Essay is limited in three principal ways. First, as noted above, this Essay assumes a trial of those ac- cused of the terrorist attacks before a court applying solely classical Islamic law, both as to substance and procedure. The assumption is not entirely im- plausible.' In response to a demand by the United States for bin Laden, the * Prof. Frank E. Vogel, Director, Islamic Legal Studies Program, The Custodian of the Two Holy Mosques Adjunct Professor of Islamic Legal Studies, Harvard Law School. 1. From the viewpoint of classical law at least, it is not odd that a court in one country could try a person for crimes committed outside that country, even in a jurisdiction where Islamic law did nor apply. Most medieval law scholars declared that the criminal laws of Islam bind an offender regardless of where he commits his crime. The Hanafi school provides a partial exception, declaring that acts committed outside the part of the world where Islamic law is applied cannot be subsequently punished under shari'a. 7 'ALA AL-DIN ABu BAKR B. MAS'UD AL-KASANI, BADA'I' AL-SANA''FI TARTIB AL-SHARA'1' 131(Dar al-