Shariah Law and Cyber-Sectarian Conflict: How can Islamic Criminal Law respond to cyber crime?

 

Alaeldin Maghaireh[1]

University of Wollongong, Australia

 

Abstract

The Islamic world has populated cyberspace and opened up websites propagating Islamic rhetoric and ideology. Some of these website established cyber-schools teach hacking techniques. Unfortunately, the growing Muslim presence in cyberspace has spawned an increasing amount of what can be termed as ‘cyber-sectarian conflict’. Thus, it is not uncommon to find that Islamic and non-Islamic websites have been hacked and sabotaged by Anti-Fitna Muslim Hackers or other hackers. Amazingly, Muslim scholars refrained from condemning ‘Hacktivism’ and even made it appear as if it were perpetrated to defend Islam. Shariah response to the problem is significant since Muslims hackers consider Shariah to be the ultimate law system.

Keywords: Shariah Law; Islamic world; cyber-sectarian conflict; Hackers;

 

Introduction

Islam, Shariah, and Islamic Criminal Law are concepts that have a common root but have developed individually and are quite distinct today. While, ‘Islam’ means submission to the will of Allah and obedience to His Law (Mukarram & Muzaffar, 2005), Shariah is the pathway to fulfil the will of Allah. It is a comprehensive collection of rules, principles, teachings and disciplines derived from the main sources of Islam, Qur’an[2] and Sunnah.[3] Shariah was formulated and developed by Muslim scholars using Fiqh knowledge[4] 200 years after the Prophet Muhammad’s era (610-632) (Islamic Culture Board, 1941). Islamic criminal law, on the other hand, is the most controversial segment of Shariah because it applies stringent corporal punishments, such as flogging, amputation, stoning, or beheading for certain crimes (al-Omari; al-Ani, 2003). These corporal punishments and their divine sources as well as Shariah laws have ignited a firestorm of controversy over their compatibility with international contemporary conceptions, such as human rights, freedom of religion, and capability to address new and emerging issues (Rudolph, 2005; Dalacoura, 2007). 

In a manner similar to the Western world, the Islamic world has embraced cyberspace[5] and opened up websites. There are hundreds, if not thousands, of Islamic websites floating in cyberspace. This is despite the fact that some Muslim clerics issued a Fatwa, (a religious verdict), prohibiting Muslim Internet users from using chatting rooms (http://www.syria-news.com). Conversely, cyberspace has become a common place for Muslims to interact, socialise and, most importantly, to propagate their own beliefs. It is not uncommon to find Islamic websites designed and optimised specifically to defend Islam from its enemies. For example, the website www.d-sunnah.net was established to defend Ahl al-Sunnah (the nation of Sunnah). Similarly, dozens of websites, such as http://www.islamtoday.net/pbuh.htm and many more were established to defend the Prophet of Islam, Mohammed, against European newspapers’ publication of cartoons lampooning the Prophet.

It is undoubtedly true that new aspects of crimes and criminals are being developed through the cyberspace. The term ‘cyber crime’[6] is used to describe a wide range of virtual illegal activities that take place in cyberspace, such as hacking and communications systems sabotage. Unfortunately, the growing Muslim presence in cyberspace has spawned an increasing amount of what can be termed ‘cyber-sectarian conflict’. For example, In September 2008, Sunni hackers attacked more than 300 Shia websites, including the main website of the Grand Ayatollah Ali al-Sistani[7] (http://news.bbc.co.uk/hi/arabic/news). A group of Shia hackers called ‘Shia Digital Security Team’ responded by attacking more than 77 Sunni websites (http://www.saudiyatnet.net). In the Islamic world, the issue of hacktivism has hardly ever bothered the religious consciences. Indeed, religious leaders refrained from condemning hacktivism and even made it appear as if it were perpetrated to defend Islam. Therefore, extremism, fanaticism, and violence of the Islamists have sprung up on the web.[8]

Cyber-sectarian conflict can take two forms: one is ‘Cyber-Islamist Advocacy’, and the other is ‘Islamist Hacktivism’. The first form consists of religious publications, debates, emails awareness, lectures, and videos. The latter is cyber attacks against other religious or non-religious websites.[9] However, the attacks take different forms of cyber crime, such as hacking, the distribution of viruses, Trojans and worms, cyber-vandalism, password thefts, and denial of service attack (DoS).[10]  

The first form has received most scholarly attention. For example, cyber Islamist environment, cyber-terrorism, cyber-Jihad, and many others cyber-Islamic related topics have been researched in great detail (Bunt, 2002, 2004). However, none of these studies examine the response of Shariah and Islamic criminal law to cyber crime. The importance of this article lies in its attempt to shed some light on two key issues, as outlined below.

First, Muslim hackers do not believe in secular cyber crime laws and, therefore, will not abide by them. This is simply because the majority of Muslims believe that Allah is the only legislator who can enact legislation and those who do not adhere to His Law are infidels.[11] Therefore, Shariah’s role in cyber crime is significant since Muslims hackers consider Shariah to be the ultimate law system. Secondly, while cyber crime is a new phenomenon, Shariah law is widely understood as a collection of ancient religious dogma that belongs to a time other than ours. Hence, how can Shariah respond to cyber crime?

This paper will first explore contemporary Muslim thoughts, traditionalists and reformists, and their role in shaping a modern criminal law. The next sub-sections, then, will examine whether Shariah law is inflexible or non-responsive to modern issues, and examine Islamic criminal law and its response to cyber crime. Finally, this paper will examine traditionalist and reformist approaches to the criminalisation of cyber crime.

 

Contemporary Muslim Scholars Standpoints

The Islamic world is not homogeneous in terms of religious perspective; rather it is heterogeneous, consisting typically of traditionalists, and reformists. The key difference between them is their understanding and interpretation of the Holy Scripture, and the Prophet’s traditions (Parrillo, 2008). Traditionalists view is held by those scholars who believe that Allah’s commands and the Prophet’s traditions (Sunnah) are infallible sources of law and, therefore, should be applied without modification or re-interpretation. Thus, they consider the Qura’n and Sunnah to be the ultimate sources of Shariah law. They argue that the four great Sunni scholars (Maliki, Hanbali, Hanafi, and Shafi) and their followers enlightened Shariah principles and purposes, and thereby the four Fiqh schools, which were established by the four Sunni scholars, are sufficient and that no further research in the jurisprudence is needed. They maintain and claim that the methods of Fiqh, such as Ijtihad (Reasoning), Maslahah Mursalah, (Considerations of public interest), Qiyas (Juristic analogy) and Fatwa (Religious decision) are sufficient to solve contemporary issues (al-Akhar, 2002).

In contrast to the traditionalists, the second group is recently formulated by a group of scholars known as ‘the Quranic people’.[12] They argue that God’s commands revealed in the sacred Qur’an are the only infallible source of Shariah because, as they argue, the Qur’an established unequivocal and comprehensive principles and, therefore, there is no need for any other sources other than the Qur’an to deduce the rules of Shariah. They reject the approaches formulated and applied by the four Sunni schools. Furthermore, they deny the Sunnah tradition as the second source of Shariah. They sustain their standpoint upon the following reasons (Mansour, 2008):

• First, the Prophet Muhammad prohibited his followers from writing his traditions. 

• Second, the Qur’an has completed the divine religion.

• Third, the credibility of Sunnah tradition is weak, because Muslim started to collect it two centuries after the Prophet era when the Muslims began conjuring fake traditions for political reasons.

• Fourth, the contradiction between the Qur’an (the first source) and the Sunnah tradition makes the latter unauthentic, because God promised to keep his words (the Qur’an) uncorrupted. 

Although, the Quranic people have been labelled by the Sunni scholars as apostates (Ismael, 2008), they were able to re-interpret the Quranic verses to come into harmony with contemporary international human rights, such as declaring freedom of religion and denying the punishment of stoning (Mansour, 1998).

 

Islamic Criminal Code

At the time of this writing, Islamic criminal law was not codified. None of the groups described above have formulated a criminal code parallel to the secular legal systems. Although Muslim clerics disparage secular legal systems that are applied in several Muslim countries, such as in Jordan, they have not produced an alternative perspective other than vague and general ideas.[13] Different types of crimes, including cyber crime, were overlooked. This, of course, poses a potential risk to cyberspace, because the Shariah’s principle of criminalisation states that there is no crime without law. The Almighty said: ‘And nor shall we punishing until we had sent them an Apostle’ (Qur’an 17:15). It can be understood from this that crimes and punishments should not be applied retroactively.[14] If there is no response from Shariah, then Muslim hackers and cyber criminals who have committed cyber crime can escape conviction. Therefore, the question that should be asked is why Muslim scholars, both traditionalists and reformists, have not formulated a criminal code? Is it because Shariah is inflexible or obsolete?

 

Shariah tends to be Inflexible and Non-Responsive to Modern Issues

There are two statements about Shariah inflexibility or rigidity. Contemporary Muslim scholars argue vehemently that Shariah’s principles are applicable in any place and at any time. This direction is adopted by the traditionalists and reformists. Conversely, secular Muslim scholars and some of the orientalists[15] describe it as being rigid, stagnant, and incapable of interacting with society developments (Al-Akhdar, 2007).

The author presumes that both of the above statements are inaccurate and misleading. This can be explained through the examination of two different statements issued by Imam Ibn Timia (1263-1328) and Imam Ibn Qayyim (1292-1350) respectively. The former statement centres on the spiritual meaning of the Shariah. He stated, ‘Shariah is full of benefits, full of purposes, and objectives, so anything unjust or harmful is not from Shariah’. Imam Bin al Qiym, on the other hand, stated that, ‘Fatwa[16] is changeable according to the benefits, conditions, times, places, and individuals’ intentions’ (Bin al Qiym, n.d.). Another scholar added that Shariah, in all its judgments, must bring benefits and prevent corruption (al-Shak, n.d.). Indeed, the Prophet’s companions had changed their Fatwas and, most importantly, suspended God’s commands on several occasions to meet the new situation they had encountered. For example, in two different incidents, Omar Bin Khattab, the second Caliph, applied the spiritual meaning of the Shariah through suspending a scripture command. In the first instance, he suspended the punishment theft during the famine year, and in the second incident, he terminated a Quranic command and a Prophetic tradition when he stopped paying alms to the non-believers who used to receive a share of assistance from the Prophet. In the first instance, his argument was that applying Shariah in such a case would result in unjust treatment. Meanwhile, in the second instance, he claimed the command became obsolete; it was applied when Islam was weak, but made it strong, hence there was no need to solicit their support (Foda, n.d.). This is, of course, contrary to one of the most important principles of Shariah which states ‘no Ijtihad[17] when an explicit text exists in the Holy Qur’an’ (Ramadan, 2005). In other words, the exercise of independent judgment is constrained by the commands laid down by Allah.

From the above statements and examples, it can be concluded that the spiritual meaning of Shariah, i.e. justice and full of benefits, is applicable in any place and at any time. Omar was able to apply Shariah and frame appropriate potential solution to problems and to exercise appropriate Ijtihad. On the other hand, Shariah scriptures that were formulated and developed by the four Sunni schools twelve centuries ago are quite rigid; in some cases, inflexible and incapable of responding to changing and emerging issues.

 

Islamic Criminal Panel and Cyber crime

In criminalisation and punishment, the Shariah law objective is to protect five important values: religion, human life, intellect, linage, and property. Muhammad Mohyi Aldeen (n.d.) indicated that the criminalisation process in the contemporary world is similar to that found in the Shariah; it is established to protect interests that are vital to human beings.

Criminalisation system in Shariah law is divided into three categories to protect these five vital values, Hudud,[18] Qisas and Ta’azir.[19] The Hudud category is rigid. It specifically addresses six forms of physical crimes: apostasy, drinking wine, adultery, theft, defamation, and high way robbery. It protects all the five pillars mentioned above through a narrow approach that focuses only on God’s rights (Quraishi, 2005).[20] In other words, these actions are criminalised to meet the five objectives of the Lawgiver (Allah). The Qisas category is also specific, and it protects human life against all forms of physical violence, such as murder and injury (Barak, 2000). Cyber crime cannot be criminalised under the Hudud or Qisas categories, because none of the cyber crimes can be portrayed as a physical action against anyone of the five elements. However, in case cyber-stalking gradually scales up from a remote threat to actual physical harm or injury and can be prosecuted under Qisas.

Lastly, the Ta’azir category deals with the least serious crimes (Vogel, 2000, p. 247). It is unspecific and flexible, and, therefore, all sorts of crimes that are not addressed under the above two categories can be punished under Ta’azir, including incomplete Hudud crimes (Rudolph, 2005, p. 65). For example, Hudud punishment for theft is amputation, but the punishment must be decreased to Ta’azir if the proscribed amount of money stolen was not attained. The Prophet said ‘The hand is not cut off for fruit or palm pith’ (Tarjumana & Johnson, n.d.). Unlike in Hudud and Qisas, in Ta’azir the Judge’s discretion is unrestricted and he can impose the appropriate punishment for offences committed against any of the five elements. Furthermore, in the Ta’azir category, Ijtihad (Reasoning), Maslahah Mursalah, (Considerations of public interest) and Qiyas (Juristic analogy) play critical roles in decision making. Nevertheless, cyber crime cannot be brought under this category unless the Shariah itself criminalises or otherwise prohibits such activities. Therefore, the main question addressed here is: Does Shariah prohibits cyber crime offences?

 

Shariah prohibits Cyber crime

Shariah does not explicitly criminalise any kind of cyber crime, but it does contain general rules of criminalisation. The earlier mentioned scholars, traditionalists and reformists approach criminalisation issues differently. According to the traditionalists, the second source of Shariah law, (the Prophet Tradition) provides significant support for the criminalisation of cyber crime. Scholars have quoted a number of Hadiths, for example, the Prophet said ‘No harm shall be inflicted [on anyone] nor reciprocated [against anyone]’ to criminalise emerging crimes. The Hadith provides a legal basis for criminalising cyber crime, because the latter causes harm, either directly to the computer systems, or indirectly to an individuals’ property – one of the important five values protected by Shariah. Nevertheless, Shariah traditional sources are not sufficient to address cyber crime in detail; therefore, a secular criminal code is important to criminalise all forms of cyber crime. The code aims at protecting the five values and, therefore, meets the spiritual meaning of Shariah. For example, Saudi Arabia[21] applies the traditional form of Shariah law, but it has also enacted the modern Cybercrimes Act, equivalent to that found in developed countries, to punish cyber criminals appropriately. It criminalises hacking acts, including cyber-sabotage (Kornakoy, 2007).

The second approach interprets the Quranic injunctions liberally. Quranic commands provide some support for the criminalisation of cyber crime. The Almighty said in Sourat Al-A'raf, ‘hence, do not spread corruption on earth after it has been so well ordered’ (Qur’an 7:56). Al-Baqara (The Cow) verse 60, states, ‘Eat and drink the sustenance provided by God, and do not act wickedly on earth by spreading corruption’. Another verse states, (206) ‘God does not love corruption’. According to the classical interpretations, the word ‘corruption’ has two meanings. One is religious disobedience, such as non-believing in God (Kuffar), and the other is sins or committing sins. In Webster’s Dictionary the word ‘sin’ means an offense against God, religion or good morals.

In Shariah, sin is divided into two categories: Kubra, which is a supreme, mortal sin, such as ‘Shirk’, that is, associating someone else with God, and Sugkra, which is inferior, venial sin and shortcoming (Abd-UL-Massih, n.d.). The former sin incurs serious punishment, which falls under the Hudud or Qisas, but the latter category may incur Ta’azir punishment. Thus, it can be seen that both sins are associated with breaking God’s will and nothing to do with cyber crime, such as denial service of attack (DoS). Consequently, it should be reinterpreted beyond the literal meaning of the scripture to include any mischievous corruption, including hacking and cyber–sectarian conflict. This objective could be attained by stretching the meaning of corruption to make it more appropriate to address digital corruption and hacktivism.

 

Conclusion

Information and communications technology has the potential to offer unprecedented opportunities for criminals to commit new illegal activities because of the unique environment in which users interact with each other and with virtual objects. Shariah and Islamic criminal law were built and developed many years before the arrival of information technology. Muslim scholars, traditional and reformists face the toughest question of all: How to bring Shariah law into line with contemporary technological development and criminalisation? While traditionalists always defend the capability of Shariah law to address contemporary issues, they appear unable to move one step forward and present a comprehensive legal response to these issues. Conversely, reformists reshaped significant parts of Shariah to come into harmony with contemporary issues. However, none of the groups approached cyber crime, or even shaped a criminal code parallel to modern legal systems. This situation will give Muslim hackers and cyber-terrorists justification to attack cyberspace. Shariah law is rich with general principles as well as its objective urge its followers to develop efficient response to cyber crime.

 

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