Publication Details
Clarke, B.
(2009).
Law, religion and violence: A human rights-based response to punishment (by state and non-state actors) of apostasy.
Adelaide Law Review, 30 (1), 111-147.
Abstract
This article examines Islamic law on the punishment of apostasy and its use and abuse by state and non-state actors to justify the taking of human life. It highlights the traditional view of Muslim jurists that apostates must be killed. This approach is contrasted with the growing body of juristic opinion that holds that neither the Qur’an nor authoritative hadith requires apostates to be executed. This debate has assumed greater importance since al-Qaeda and similar groups have sought to justify acts of violence on the grounds that they are engaged in lawful jihad against apostates, apostate governments and collaborators. The thesis advanced here is that all laws (both secular and religious) that sanction the killing of apostates should be reconsidered for three reasons: they violate international human rights law; they are based on unsound Islamic jurisprudence; and they have been abused by both state actors (to punish political opponents and religious minorities) and non-state actors (including al- Qaeda and various other criminal organisations) who claim that their violent actions against apostates are justified under Islamic law. It is argued that all states party to the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) should guarantee, through law reform if necessary, that crimes against religion (including apostasy) are not legally punishable. Put differently, ICCPR principles, including non-discrimination, should be codified by lawmakers and upheld by the judiciary. Under this approach, elements of Islamic law that are inconsistent with the ICCPR would not be enforced. This represents a significant departure from the current position of the Islamic law schools on the punishment of apostasy. Yet it is argued that such change is necessary if various categories of people, including those deemed apostates from Islam, are to be protected from violence and discrimination by state and non-state actors.
Keywords
Peer-reviewed, human rights, islamic law, apostasy, counter-terrorism, al-Qaeda, sharia, ideology, islamist, ICCPR, terrorism
