In “Leaving Islam is not a capital crime” in the Chicago Tribune (thanks to Doc Washburn), M. Cherif Bassiouni, a professor and the president of the International Human Rights Law Institute at DePaul University College of Law, purveys a series of half-truths and distortions that are — at best — misleading.
He begins by asserting:
A Muslim’s conversion to Christianity is not a crime punishable by death under Islamic law, contrary to the claims in the case of Abdul Rahman in Afghanistan.
This is a sweeping statement that goes much farther than most statements that have been made by Islamic moderates in the last week or so. While others have asserted that apostasy should not be a capital crime in Islamic law, they have at least acknowledged that many Islamic authorities believe that it should. Bassiouni, on the other hand, states flatly — in defiance of the clear teaching of every school of Islamic jurisprudence — that apostasy is not a capital crime under Islamic law.
It is hard even to take seriously an analysis that begins with such an obvious falsehood. But because this is the sort of thing that gets published in the Chicago Tribune, and probably taken seriously by the likes of Paul Marshall, let us press on.
While there is long-established doctrine that apostasy is punishable by death, that has also long been questioned by Islamic criminal justice scholars, including this writer.
Now we are already entangled in a contradiction. I’m glad that Islamic criminal justice scholars are questioning this doctrine. But that does not mean that the doctrine doesn’t exist, as Bassiouni asserted in his first sentence.
There are 1.4 billion Muslims who live in more than 140 countries. They constitute the great majority in 53 countries that declare themselves to be Muslim states. Most of these states have constitutions that guarantee freedom of religion, as does the Afghani constitution. Most of these states have criminal codes that do not include apostasy as a crime. Among them are: Algeria, Egypt, Indonesia, Iraq, Jordan, Lebanon, Malaysia, Morocco, Syria, Tunisia and Turkey.
Did you catch the sleight of hand? He started out by saying that Islamic law doesn’t mandate death for apostates. Then he invokes Algeria, Egypt, Indonesia, Iraq, Jordan, Lebanon, Malaysia, Morocco, Syria, Tunisia and Turkey as evidence. But in none of those states is Sharia the sole basis of law. Certainly it is more or less of an influence in all of them, but since they all also have other sources for legislation, none of them can be invoked as telling us anything about Islamic law.
Bassiouni knows full well that there are schools of Islamic jurisprudence that he should be talking about if he wants to say anything about Islamic law. Why doesn’t he mention them? Perhaps because he knows they will contradict what he is asserting?
Also, he makes no mention of the fact that because of the influence of the Sharia, in all those states apostates from Islam live under a cloud. For example, when the Egyptian secularist Faraj Foda was murdered in 1992, Sheikh Muhammad Al-Ghazali, whom some have hailed as a “reformer,” declared: “The killing of Faraj Foda was in fact the implementation of the punishment against an apostate which the imam (the state) has failed to implement (undertake).” So Al-Ghazali was asserting that individual Muslims had the responsibility to implement Sharia when the state did not do so — and he was asserting this with specific reference to the killing of an apostate.
Also, Paul Marshall, for all the undeniable faults of his analysis, is more honest than Bassiouni. Marshall notes: “Other countries, like Egypt, that have no laws against apostasy, instead use laws against ‘insulting Islam’ or ‘creating sectarian strife.’ In 2003, Egyptian security forces arrested 22 converts and people who had helped them. Some were tortured, and one, Isam Abdul Fathr, died in custody. Last year, Gaseer Mohamed Mahmoud was whipped and had his toenails pulled out by police, and was told he would be imprisoned until he gave up Christianity.”
Other Muslim countries, however, criminalize apostasy on the basis of doctrinal constructs established in the 7th and 8th Centuries, which have been mildly questioned over the years or simply sidestepped.
Bassiouni doesn’t tell us until later in his piece that those doctrinal constructs were based on statements attributed to Muhammad, and that therefore millions of Muslims believe that the death penalty for apostasy is the will of the prophet of Islam.
States that recognize it as a crime punishable by death include Iran, Nigeria, Pakistan, Saudi Arabia and Sudan. However, there are no known cases in recent times in which someone charged with apostasy in these countries has been put to death.
Hmmm. Paul Marshall is again more honest than Bassiouni, acknowledging that that “in the last ten years Saudi Arabia has executed people for the crimes of apostasy, heresy, and blasphemy” and “in the 1990s, the Islamic Republic of Iran used death squads against converts, including major Protestant leaders, and the situation is worsening under President Mahmoud Ahmadinejad. The regime is currently engaged in a systematic campaign to track down and reconvert or kill those who have changed their religion from Islam.”
But perhaps even more important than the simple inaccuracy of Bassiouni’s statements here is the fact that if such laws are on the books, that is enough. They can then be reasserted at any time, even if they are ignored for long periods.
Bassiouni then, perhaps knowing how weak his argument is in Hadith and fiqh, appeals to the Qur’an. In doing so, he ends up acknowledging that his is a minority position among Islamic scholars.
The principal category of crimes in Islam is called hudud. These crimes are referred to in the Koran and thus require prosecution. They are: adultery, theft, transgression (physical aggression), highway robbery, slander and alcohol consumption. Apostasy is included in this list by most scholars, but not by a few others. The Koran refers to it as follows: “And whoever of you turns [away] from his religion [Islam] and dies disbelieving, their works have failed in this world and the next [world]. Those are the inhabitants of fire: therein they shall dwell forever.” Surat (chapter) al-Ma’eda, verse 35. This verse does not criminalize the turning away from Islam, nor does it establish a penalty.
Now we finally hear that all this comes from Muhammad, but that — you guessed it — he has been misunderstood:
Turning away from Islam, which is translated as apostasy, would not have been considered a crime, except the Prophet Muhammad (praise be upon him) in the 7th Century applied the death penalty to a Muslim who turned away from Islam. Historians of the Sunnah, the tradition established by the Prophet and deemed binding upon all Muslims, failed to note a significant fact about that case–that person not only had a change of faith, but decided to join the enemies of Islam at a time of war, thus making it a crime of high treason. Such a crime exists in all legal systems, many with the death penalty.
But it is not true that Muhammad ordered the execution only of apostates who joined the enemies of Islam. His statement Baddala deenahu, faqtuluhu — if anyone changes his religion, kill him — includes no caveat. He didn’t say, “If anyone changes his religion, kill him only if he joins the enemies of Islam.” He simply said, “If anyone changes his religion, kill him.” This statement is amply attested in the Hadith, and is accepted as authentic by all except the most disingenuous Islamic scholars. It appears in various forms in Bukhari, Ibn Majah, An-Nasai, Tayalisi, Malik, Tirmidhi, Abu Dawud, and other authorities.
Nor does Muhammad make any exception when enunciating the principle in this way: “The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims” (Bukhari, vol. 9, bk. 83, no. 17).
Also, Muhammad ordered the killing of more than one apostate, and they weren’t all people who had joined up with his enemies. Take, for example, the case of Abdullah ibn Khatal. Muhammad’s earliest biographer, Ibn Ishaq, tells us that “he had become a Muslim and the apostle sent him to collect the poor tax in company with one of the Ansar. He had with him a freed slave who served him. (He was a Muslim.) When they halted he ordered the latter to kill a goat for him and prepare some food, and went to sleep. When he woke up the man had done nothing, so he attacked him and killed him and apostasized. He had two singing-girls Fartana and her friend who used to sing satirical songs about the apostle, so he ordered that they should be killed with him” (Ishaq 819). There is no suggestion that Abdullah ibn Khatal had joined Muhammad’s enemies, unless singing satirical songs about him counts.
Nevertheless, Bassiouni asserts:
The Prophet’s application of the death penalty was used by Muslim scholars in combination with the verse cited above as a legal basis for making apostasy, namely, change in religious belief, a crime punishable by death. These scholars have overlooked the passage to the enemy at a time of war, which was the most important element in the Prophet’s decision in that case. They have also overlooked two important factors.
The first relates to the Koran, the highest binding source of Islamic law, which contains a fundamental principle stated in unequivocal terms: “Let there be no compulsion in religion,” Surat Al-Baqarah, verse 256. Surely this overarching principle cannot be transgressed by forcing a person under penalty of death to espouse Islam even after such a person professes to have renounced it.
I have noted before that simply invoking Qur’an 2:256 is not enough to establish that Islam has no death penalty for apostasy. This is because advocates of such a penalty are well aware of 2:256, and have explanations for it. For an example, see here.
Bassiouni then continues to build a case from the Qur’an, after which he says:
Why these issues were not raised in the Rahman trial in Kabul and with the government of Afghanistan is surprising.
It’s only surprising to people who don’t know, or don’t want others to know, the deep roots that the death penalty for apostasy has within Islamic tradition.