Hirabah

The inclusion of rape within the purview of hirabah has had support throughout Islamic history.

The medieval Zahiri jurist Ibn Hazm defined hirabah as,

‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers are one or many.'[18]

It had significant support from the Maliki jurists.

Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba. In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.[18]

In the Hanafi school of law, the term zina is taken to refer to illegal sexual intercourse where rape is distinguished as zina bil jabr to indicate its forced and non-consensual nature whereas fornication and adultery fit zina bil ridha, which indicates consent. Though the terminology uses the term zina, nonetheless, they are two categorically different crimes as rape is treated as a tazeer (discretionary) crime by the judge and prosecuted based on circumstantial evidence (medical evidence, any number of witnesses, and other forensic evidence). In other words, very similar to how it is treated in contemporary Western law. It is fornication and adultery by mutual consent, or zina bil ridha, which retain their classical hadd punishments from the Qur'an and sunnah provided there are four witnesses (absent which they too default to tazeer, subject to discretionary punishments such as fining, imprisonment, or lashes). Nonetheless, gang rape or public rape, such as the sort that occurs during war, is still traditionally considered hirabah as that is more in line with its classical definition as a war crime or crime against civilization and society.[19]

In Iran, hiraba is known as moharebeh and is translated variously in English-language media as "waging war against God,"[7] "war against God and the state,"[8] or "enmity against God."[9] [5] The charge is levied against people who commit acts against the government. Another related crime is Mofsede-fel-arz, which is "spreading corruption on the earth", which can be applied for political crimes such as treason. Both are often applied against armed robbers, kidnappers, and rapists.

The term is widely used by Iran's Islamic Judiciary, citing Sharia law, and is "usually used against those who take up arms against the state,"[9] and usually carries the death penalty. The term is used in articles 183 to 196 of Iran's criminal law. The cases that fall under this term typically require involvement in armed criminal activities, e.g: taking up arms for terrorism and disruption of public safety (article 183), membership in groups conducting armed uprising (article 186), supporting groups planning to overthrow the government by force using weapons and explosives (article 187), accepting critical posts a Coup d'etat government. Articles 190-191 state that judge can give a person convicted under one of these crimes capital punishment. Peaceful and unarmed opposition to government does not fall under this term. Typical convicts under the term are members of armed ethnic separatist groups, members of armed drug trafficking groups, and people involved in armed robbery.[28]

According to Human Rights Watch, "at least nine people" convicted of moharebeh by Islamic Revolutionary Courts for "their alleged ties to armed opposition groups" were executed in 2014.[29]

Between the end of early days of the 1979 Islamic Revolution, when scores of former officials of the Shah and others were arrested and executed for moharebeh,[30] and the beginning of the 2009 election protests, executions for moharebeh were rare, and usually applied against members of armed opposition/terrorist groups, Kurdish separatists, or common criminals.[15]

In recent years, Iranians executed after being charged with Moharebeh include Mohammad-Reza Ali-Zamani (2010), Arash Rahmanipour (2010), and Ehsan Fatahian (2009). Others accused, charged or convicted of Moharebeh include Adnan Hassanpour, whose death sentence for Moharebeh was overturned in 2008 on appeal, and Zeynab Jalalian, whose death sentence was commuted to life in prison. Shia cleric Hossein Kazemeyni Boroujerdi, known for preaching that religion is separate from politics, was reportedly charged with Moharebeh in 2007 by Iran's Special Court for the Clergy,[31] but had his sentence reduced to 11 years in prison after an appeal.

Student demonstrator Mohammad Amin Valian was sentenced to death for Moharebeh in 2009, a sentence overturned by an appeals court in March 2010.[32] In March 2010, the 76-year-old former dean of Tehran University, Mohammad Maleki, was charged with it for alleged "contact with unspecified foreign groups and working to undermine the Islamic system." [15] He was later convicted of lesser charges. Abdolreza Ghanbari, a university lecturer living in Pakdasht, was arrested in the wake of 2009 Ashura protests and convicted in 2010 of “Moharebeh through ties with hostile groups [against] the regime”. A request for pardon of the death sentence was rejected on 28 February 2012.[33]

In a February 2011 televised address before a group of clerics in the city of Qom, hard-liner cleric Ahmad Khatami accused reformist presidential candidates Mir Hossein Mousavi and Mahdi Karroubi of Moharebeh as "leaders of sedition."[34] This was not followed up with any charges against the two by the Iranian judiciary.

Abdolfattah Soltani, an Iranian attorney and member of Center for Defense of Human Rights has argued that under Articles 86 and 89 of the Islamic Punitive Laws of the Islamic Republic of Iran, the accused must "either have engaged in armed confrontation or he must have been a supporter or a member of an armed group and must have committed effective [deliberate] actions on behalf of that organization.", conditions that have not been met by defendants such as Valian, who threw stones at militia members.[35]

According to journalist (Brian Murphy), the Iranian Islamic regime's use of moharebeh against 2009 election protesters has "opened deep rifts between ruling clerics and Islamic scholars questioning how an idea about safeguarding Muslims can be transformed into a tool to punish political protesters." Ayatollah Mostafa Mohaghegh Damad has reportedly sought to "rally clerics to oppose the use of moharebeh charges against political protesters."[15]

In 2019 an Iranian Quran interpreter has called for the punishment of those protesting, based on Quran Surah 5:33.[36]

The penalty for hirabah in Nigeria is death if a life is taken during the offense. Additionally, the Zamfara penal code (in effect in the North of Nigeria) provides that if life and property are taken during the commission of hirabah, the penalty is crucifixion.[37][38]

In Saudi Arabia Hirabah is defined as "Armed Robbery". "To prove hirabah, two witnesses must testify or there must be a confession. In addition, an offender can still escape the death penalty if he "repents before he is arrested and willingly places himself in the hands of the authorities."[39][40]