Torture and Islamic Law
Reza, Sadiq, Chicago Journal of International Law
One day in the seventh century CE, Muslim sources tell us, some residents of KiIa, a region in what is today southern Lebanon, came to suspect a group of weavers of theft. They took the weavers to one of the Prophet Muhammad's "Companions"-a select and authoritative group of the Prophet's contemporaries-for adjudication and punishment. The Companion detained the weavers for investigation but released them after a few days, presumably because they denied the charge and there was insufficient evidence of their guilt. The accusers prompdy protested the Companion's freeing the suspected thieves "without flogging or interrogating" them. The Companion's reply, the sources tell us, was this: "What did you want? Had I flogged them and your goods turned up [from their confession], that would have been fine. But if not, I would have had to take [as much skin] off of your backs as I took off theirs." "This is your ruling?" the accusers asked. "It is the ruling of God and His Messenger [that is, the prophet Muhammad]," replied the Companion.1
This story and others like it are regularly cited to support the assertion that torture is forbidden in Islamic law. But there are just as many reports in the same sources-the Traditions (sunna), which record the statements and actions of Muhammad and his Companions and are the most authoritative source of Islamic law after the Qur'an-that suggest that flogging or otherwise "beating" (daraba) suspected wrongdoers to extract confessions is permissible.2 (There is nothing directly on point in the Qur'an.) Conflicting views on the matter also appear in the vast corpus of jurisprudence derived from the Qur'an and the Traditions by Islam's legal scholars, or jurists, over the fourteen hundred years of Islam. Meanwhile, there is no doubt that flogging and other official practices that would constitute torture under contemporary definitions of the term, or that would at least amount to cruel, inhumane, or degrading treatment, have been employed over the lands and centuries of Islam.3 And today, while the countries of the modern Muslim world forbid tortore in their constitutions and criminal codes and have signed international covenants that ban it, many of these states regularly appear on the list of states where government officials reportedly employ torture with impunity, and among these states are several that declare Islamic law to be the very source of their law.4 The short answer, then, to the question of whether Islamic law forbids torture is the same as the answer to so many ultimate questions of Islamic law (and of "American" law too for that matter): it depends on whom you ask.
It also depends on the definition of "Islamic law." Possible definitions will be considered both implicitly and explicitly in this Article. First, let me clarify that I address torture as an investigative method-physical or mental coercion by state officers to obtain confessions or other information from individuals in their custody-rather than torture as a punishment upon conviction of a crime. The religious legality of the fixed Qur'anic criminal punishments (hudud; sing, hadd), which are few in number but notoriously harsh in nature, is not seriously questioned; nor is there doubt that most if not all of these punishments are irreconcilable with contemporary norms of human rights.5 Acts of formal punishment, however barbarous, are also typically excluded from contemporary legal definitions of torture.6 Also excluded from consideration here are acts of violence, mutilation, and other physical degradation of political enemies and opponents for non-investigative purposes. These horrors too have most certainly occurred in Islamic history, as they have in non-Islamic history, and regrettably they have apparently not entirely disappeared from the Muslim world.7 While the religious legality of some of these acts may be asserted,8 there can be little doubt that they too violate contemporary human rights norms. But investigative torture is a more complicated matter in Islamic law and practice, just as it has been throughout human history and appears to remain today. …