Scholar: Try Terrorists on Own Terms

As the Pentagon interns Taliban and Al Qaeda members in Cuba and the Bush administration considers what to do with them, an eminent historian of Islam is calling on fellow scholars to help draft an “Islamic indictment” of those responsible for the Sept. 11 terrorist attacks.

Harvard University professor Roy P. Mottahedeh said he believes that if Osama bin Laden or other top Al Qaeda members are captured, they should be prosecuted in an international court for crimes against humanity. But regardless of whether the trial takes place in an international forum, a U.S. court or a military tribunal, he said, it would be wise to present a supplementary legal brief under Islamic law.

Although an Islamic trial is unlikely, Mottahedeh said, “It is very important to show that the great scholastic tradition of Islamic law, so carefully elaborated over 14 centuries, was clearly violated in many specifics by the outrageous acts of Sept. 11.”

Anne-Marie Slaughter, a professor of international law at Harvard who is backing Mottahedeh’s proposal, said they hope the drafting of an Islamic indictment “will be independently spearheaded by Islamic jurists and scholars in the United States and abroad” rather than by the U.S. government.

That way, she said, the indictment will have greater impact on public opinion, helping to demonstrate to non-Muslims in the United States that Islam should not be equated with terrorism and to Muslims around the world that the deliberate targeting of noncombatants is forbidden under Sharia, or Islamic law.

Mottahedeh, a specialist in medieval Islamic history who is not a Muslim, said he is willing to compile the indictment in collaboration with Islamic legal experts. “It’s not so important who drafts it as who signs on to it,” he said, expressing hope that the document would gain the imprimatur of leading Islamic jurists around the world.

Several Muslim religious scholars, including the grand mufti of Saudi Arabia and the sheik of Cairo’s Al Azhar mosque, have condemned the Sept. 11 suicide hijackings, which took more than 3,100 lives in New York, Washington and the Pennsylvania countryside. But “no one has yet pulled together the particulars” of how the terrorist attacks violated Islamic law, Mottahedeh said.

Mottahedeh presented the broad outline of such an indictment at a conference on religion and international conflict recently in Key West, Fla. Although Sunni and Shiite Muslims may disagree over who has authority to declare war, there is a centuries-old consensus on the rules for the conduct of war, Mottahedeh told the conference, sponsored by the Washington-based Ethics and Public Policy Center.

The first charge in the indictment, he said, would be that Bin Laden and his associates violated a prohibition against deliberately harming innocent civilians. This is based on verse 190 of the second chapter of the Koran--”Fight in the path of God those who fight you, but do not transgress limits”--and on various sayings of the prophet Muhammad, including: “Whenever the Apostle of God sent forth a detachment, he said to it: ‘Do not cheat or commit treachery, nor should you mutilate or kill children, women or old men.’ ”

These sayings, or hadith, were interpreted by early Islamic scholars, including the 8th-century jurist Shaibani and the 11th-century jurist Sarakhsi, to prohibit unnecessary cruelty and the killing of noncombatants. Their interpretations are considered highly authoritative and make clear that “no one fighting in an Islamic cause should ever directly and intentionally target noncombatants,” said John Kelsay, a professor of religion at Florida State University and the author of a 1993 book, “Islam and War.”

Kelsay said he thought Mottahedeh’s proposal would be useful, particularly in educating non-Muslims.

The second key charge, he said, might be that Bin Laden exceeded his authority by issuing religious judgments, including a 1998 fatwa, or decree, urging Muslims to kill Americans around the globe.

Islam, like Judaism and Protestantism, has no central authority respected by all adherents of the faith. But Bin Laden, who received little or no formal training in Islamic jurisprudence, has “nowhere near the degree of learning” expected of those who may issue fatwas, Kelsay said.

Moreover, because Al Qaeda’s excessive and unauthorized use of force led to U.S. military action in Afghanistan, Kelsay said, a third charge might say something like: “Through your errors of judgment, you have brought down the wrath of faraway powers and brought harm on innocent Muslims.”

Khaled Abou el Fadl, a professor of Islamic law at UCLA who also supports Mottahedeh’s proposal, said Bin Laden and his associates could be charged with violating well-codified provisions of Islamic law concerning safe passage, or aman in Arabic.

“When the terrorists entered the United States on visas and when they got aboard those airplanes, they were asking for aman, and when they turned around and did harm, they were committing treachery, which is forbidden,” he said.

El Fadl also said there is a crime in Islamic law known as hirabah, which he defined as “killing by stealth and targeting a defenseless victim in a way intended to cause terror in society.” An important point for the United States, he noted, is that those who commit hirabah are considered in the same category as pirates and may be tried in foreign courts.

A somewhat more speculative charge, Mottahedeh said, would be that Al Qaeda’s leaders violated an injunction against using fire as punishment. Some contemporary Islamic jurists, he said, have argued that the prohibition extends to weapons of mass destruction.

Kelsay said Bin Laden’s statements indicate that the terrorist leader is concerned about Islamic legal issues. Among Bin Laden’s main arguments, he said, is that enemies have made such deep inroads into Muslim lands that a state of emergency exists and normal rules can be suspended.

In addition, he said, Bin Laden argues that enemies are killing Muslim women and children, justifying similar acts in response.

But Kelsay said he did not think that Islamic jurists would find either argument very persuasive, because the “state of emergency” argument quickly leads to anarchy, and the Koran says, “Let not the hatred of others to you make you swerve to wrong and depart from justice”--the Islamic equivalent of “Two wrongs don’t make a right.”