Islam and transitional justice assignment

However, many collective aspects that were sidelined during the colonial era and replaced by modern European laws remain contentious. To rectify this anomaly that created conflict between the state and society, modernity and tradition, and Islamic values and Western values, various forms of Islamic movements emerged. They advocate the villa of Islam and comprehensive application of Shari’s. Moreover, these movements adopted various strategies and tactics that include moderate and extreme ways.

The role of these Islamic movements is growing, and they have wielded strong societal support, which makes TX mechanism that complies with Islamic Shari’s more relevant in the Muslim majority countries. Shari’s: Basic Definitions and Classifications Shari’s literally means “ way to water,” signifying the source of life. To Muslims, it signifies the right way to Allah and to the eternal life in the hereafter. It is also fined as “ those doctrinal, practical and dispositional regulations which Allah had legislated through one of His messengers. 7 Moreover, its definition can be traced from the verbal Arabic noun “ Shari’s” that appears in the following verse: “ Then We put thee [O Muhammad] on the (right) Way of Religion [Shari’s]: so follow thou that (Way), and follow not the desires of those who know not”. (The Curran 45: 18). In addition, its derivative form appears three times: at (The Curran 42: 13) in the form of single verb Sharma’s; at (The Curran 42: 21) in the form of the plural verb Sharma’s; and t (The Curran 5: 48) in the form off noun Sacristan. According to the modern definition, Shari’s is the comprehensive body of Islamic laws that should regulate the public and private aspects of the lives of Muslims through the excessive examination of the primary sources of Islamic Shari’s laws: the Curran and the prophetic authentic traditions. 9 There are also two secondary sources: the consensus (Jam) and the Juristic analogy (Assays). 10 Moreover, there are complementary sources such as the concept of considering general welfare (Establish) as basis for legislation 1 and customary practices of particular community (ruff). Based on these basic, secondary and complementary sources, Islamic scholars have developed Islamic Jurisprudence “ Fish” to deal with the changing conditions of human interactions in space and time. Islamic Jurisprudence is “ the science of extraction of practical religious regulations from their detailed sources. It is the practical implementation of Shari’s through its human understanding. “ 13 Because the regulations are interpretations of various scholars in different times and space, diverse methodologies were employed and different opinions and legal Judgments were offered to varieties of issues.

Generally, Islamic law classifies all human actions into two grand dichotomous categories: Macron (right and good) and Unarm (wrong and bad or evil). In that conception, communities and states have been commanded “ to enjoy the right and forbid the wrong. “ 16 The right and good in Islam includes obligatory and recommended actions, while evil includes the discouraged and forbidden actions. In between the right and wrong, there is a permissible position where flexibility and freedom is given to the individuals.

Therefore, all human actions are categorized according to the “ quantum of actions,” which has, at its center, the neutral and permissible position, with two degrees of goodness and evilness to either side. Forbidden discouraged permissible Obligatory Figure (1) Quantum of Human Actions recommended For example, the obligatory category includes the five daily prayers, fasting and so on. Recommended categories, also called “ Sauna,” include many activities that are rewarded if done with good intentions and not punished when they are not done. Permissible” includes all behavior that is neither forbidden nor discouraged, neither obligatory nor recommended. Discouraged behavior is considered undesirable and constitutes minor sins. Forbidden behavior is explicitly prohibited and includes all infill and criminal actions. TX deals with the last category of forbidden types, in particular with criminal actions. II. Mechanisms of Transitional Justice in Islam The mechanisms of TX in Islam could be classified into three categories: criminal persecution, reconciliation and hybrid system.

To achieve the ultimate goal of Justice and community cohesion, criminals must seek repentance and forgiveness from the victims. This repentance and forgiveness may be complemented with some form of retribution and compensation. Elements of the Criminal Punishment in Islam Punishment is Justified in Islamic Shari’s by deterrence, retribution, and rehabilitation and to protect the society by incapacitating the offender. The legal framework of Islam has to protect the five universal objectives of Shari’s (Mislaid al- Shari’s): the life, the religion, the reason, the lineage and the property.

All crimes fall in the category of crimes against Allah and crimes against human being besides being a transgression of Allah’s boundaries. Punishments of these crimes are divided into Hued, Assai and Ataxia. Hued Punishments in Islam The Hued punishments in general are not part of T]; however, they are important to discuss here as part of the overview of the criminal law of Islam. Penalties for Hued crimes are divinely prescribed by the basic sources of Islam: The Curran and the Prophetic traditions. They are the claims of Allah and thus cannot be waived by a judge and authorities.

It is clear from these two verses that 100 and 80 lashes are, respectively, the punishment for fornication and false accusation. Moreover, the punishment of stoning to death for pre-married adulterers is a nonsense of the Islamic scholars based on numerous Prophetic traditions and practices common during the life of the Prophet Muhammad. 25 However, proving a case of adulterous behavior was made so complicated (I. E. One must produce four credible witnesses who actually witnessed the intercourse) that proof became close to unattainable. 6 Finally, to preserve wealth, the punishment for theft and armed robbery according to the Curran is the following: “ As to the thief, Male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power. ” (The Curran 5: 38). Moreover, armed robbery (Hiram) refers to robbery with violence, and its penalty varies according to whether the robber killed or injured the victim or simply robbed (or threatened to rob) him or her.

The Curran gives various options for punishments ranging from death penalties, crucifixion, cutting off hands and foot on the opposite sides and exile. The Curran says, “ The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is heir disgrace in this world, and a heavy punishment is theirs in the Hereafter” (The Curran 5: 33).

Moreover, the next verse also offers a detailed ruling of Juridical equivalence in retribution and the option of forgiveness and compensation by paying blood money. O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission(s) is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty (The Curran 2: 178).

Assai punishment is well known and applied in the traditional Somali system of justice. Both elements of retribution and compensation have been practiced among various communities. The same practice remains intact as part of jeer system. In particular, after the collapse of the state in 1991, the available system of Justice was Islamic criminal laws, and it took the center stage besides traditional Jeer system of laws. Jeer mostly emphasizes compensation and reconciliation whenever communal violence erupts.

It involves three approaches: religious, human rights and communal. Here, our objective is the religious approach, in particular the Islamic conception of reconciliation (al-sulk), which means to reconcile and make peace with the opponent. In the Somali language, the term is derived from the Arabic roots and is called “ Zulus and Muscular”). 34 According to Stayed, Sabina, sulk means to settle any dispute. 35 It also means an agreement between two parties in the process of settling their disputes.

The spirit of reconciliation commences with acknowledgement of the committed crimes, known in Somalia as Adams sierras, repentance (taboo keen) room the perpetrators and forgiveness (cafes) from the victims. 36 It is a well-known conflict-resolution mechanism in the Somali society. In the traditional society, in cases of community conflict, there is either reconciliation or continued fighting, because there is no central authority or system of courts similar to the modern state’s system to adjudicate between disputants.

It emphasizes “ peace with justice” as the ultimate goal, and reconciliation as the best mechanism to reach that objective. It also gives guidance on how to deal with aggressors and rejecters of the peace. It calls for the use of military intervention to ensure the compliance of the perpetrators to the ceasefire and negotiated settlement. This intervention force is even permitted to fight alongside the victims against the aggressors. There is no room for neutral positions between aggressors and victims as seen in the following verse.

If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other then fight ye (all) against the one that transgresses until it complies with the command of Allah; but if it complies then make peace between them with Justice and be fair: for Allah loves those who are fair (and Just). (The Curran 49: 9). One of the mechanisms of reconciliation is arbitration, which occurs when a third person selected by the parties is engaged to resolve their disputes either through conciliation or adjudication.