Law and Cyber-Sectarian Conflict: How can Islamic Criminal Law respond to
of Wollongong, Australia
The Islamic world has populated cyberspace and opened up websites
propagating Islamic rhetoric and ideology. Some of these website
established cyber-schools teach hacking techniques. Unfortunately, the
growing Muslim presence in cyberspace has spawned an increasing amount of
what can be termed as ‘cyber-sectarian conflict’. Thus,
it is not
uncommon to find that Islamic and non-Islamic websites have been hacked
and sabotaged by Anti-Fitna Muslim Hackers or other hackers. Amazingly,
refrained from condemning ‘Hacktivism’ and even made it appear as if it
were perpetrated to defend Islam. Shariah response to the problem is
significant since Muslims hackers consider Shariah to be the ultimate law
Shariah Law; Islamic world; cyber-sectarian conflict; Hackers;
Islam, Shariah, and Islamic Criminal Law are concepts that have a common
root but have developed individually and are quite distinct today. While,
‘Islam’ means submission to the will of Allah and obedience to His Law (Mukarram
& Muzaffar, 2005), Shariah is the pathway to fulfil the will of Allah. It
is a comprehensive collection of rules, principles, teachings and
disciplines derived from the main sources of Islam, Qur’an
Shariah was formulated and developed by Muslim scholars using Fiqh
200 years after the Prophet Muhammad’s era (610-632) (Islamic Culture
Board, 1941). Islamic criminal law, on the other hand, is the most
controversial segment of Shariah because it applies stringent corporal
punishments, such as flogging, amputation, stoning, or beheading for
certain crimes (al-Omari; al-Ani, 2003). These corporal punishments and
their divine sources as well as Shariah laws have ignited a firestorm of
controversy over their compatibility with international contemporary
conceptions, such as human rights, freedom of religion, and capability to
address new and emerging issues (Rudolph, 2005; Dalacoura, 2007).
In a manner similar to the Western world, the Islamic world has embraced
and opened up websites. There are hundreds, if not thousands, of Islamic
websites floating in cyberspace. This is despite the fact that some Muslim
clerics issued a Fatwa, (a religious verdict), prohibiting Muslim
Internet users from using chatting rooms (http://www.syria-news.com).
Conversely, cyberspace has become a common place for Muslims to interact,
socialise and, most importantly, to propagate their own beliefs. It is not
uncommon to find Islamic websites designed and optimised specifically to
defend Islam from its enemies. For example, the website www.d-sunnah.net
was established to defend Ahl al-Sunnah (the nation of Sunnah). Similarly,
dozens of websites, such as http://www.islamtoday.net/pbuh.htm and many
more were established to defend the Prophet of Islam, Mohammed, against
European newspapers’ publication of cartoons lampooning the Prophet.
It is undoubtedly true that new aspects of crimes and criminals are being
developed through the cyberspace. The term ‘cyber crime’
is used to describe a wide range of virtual illegal activities that take
place in cyberspace, such as hacking and communications systems sabotage.
Unfortunately, the growing Muslim presence in cyberspace has spawned an
increasing amount of what can be termed ‘cyber-sectarian conflict’. For
example, In September 2008, Sunni hackers attacked more than 300 Shia
websites, including the main website of the Grand Ayatollah Ali
A group of Shia hackers called ‘Shia Digital Security Team’ responded by
attacking more than 77 Sunni websites (http://www.saudiyatnet.net).
In the Islamic world, the issue of hacktivism has hardly ever bothered the
religious consciences. Indeed, religious leaders refrained from condemning
hacktivism and even made it appear as if it were perpetrated to defend
Islam. Therefore, extremism, fanaticism, and violence of the Islamists
have sprung up on the web.
Cyber-sectarian conflict can take two forms: one is ‘Cyber-Islamist
Advocacy’, and the other is ‘Islamist Hacktivism’. The first form consists
of religious publications, debates, emails awareness, lectures, and
videos. The latter is cyber attacks against other religious or
However, the attacks take different forms of cyber crime, such as hacking,
the distribution of viruses, Trojans and worms, cyber-vandalism, password
thefts, and denial of service attack (DoS).
The first form has received most scholarly attention. For example, cyber
Islamist environment, cyber-terrorism, cyber-Jihad, and many others
cyber-Islamic related topics have been researched in great detail (Bunt,
2002, 2004). However, none of these studies examine the response of
Shariah and Islamic criminal law to cyber crime. The importance of this
article lies in its attempt to shed some light on two key issues, as
First, Muslim hackers do not believe in secular cyber crime laws and,
therefore, will not abide by them. This is simply because the majority of
Muslims believe that Allah is the only legislator who can enact
legislation and those who do not adhere to His Law are infidels.
Therefore, Shariah’s role in cyber crime is significant since Muslims
hackers consider Shariah to be the ultimate law system. Secondly, while
cyber crime is a new phenomenon, Shariah law is widely understood as a
collection of ancient religious dogma that belongs to a time other than
ours. Hence, how can Shariah respond to cyber crime?
This paper will first explore contemporary Muslim thoughts,
traditionalists and reformists, and their role in shaping a modern
criminal law. The next sub-sections, then, will examine whether Shariah
law is inflexible or non-responsive to modern issues, and examine Islamic
criminal law and its response to cyber crime. Finally, this paper will
examine traditionalist and reformist approaches to the criminalisation of
The Islamic world is not homogeneous in terms of religious perspective;
rather it is heterogeneous, consisting typically of traditionalists, and
reformists. The key difference between them is their understanding and
interpretation of the Holy Scripture, and the Prophet’s traditions (Parrillo,
2008). Traditionalists view is held by those scholars who believe that
Allah’s commands and the Prophet’s traditions (Sunnah) are infallible
sources of law and, therefore, should be applied without modification or
re-interpretation. Thus, they consider the Qura’n and Sunnah to be the
ultimate sources of Shariah law. They argue that the four great Sunni
scholars (Maliki, Hanbali, Hanafi, and Shafi) and their followers
enlightened Shariah principles and purposes, and thereby the four Fiqh
schools, which were established by the four Sunni scholars, are sufficient
and that no further research in the jurisprudence is needed. They maintain
and claim that the methods of Fiqh, such as Ijtihad (Reasoning),
Maslahah Mursalah, (Considerations of public interest), Qiyas
(Juristic analogy) and Fatwa (Religious decision) are sufficient to
solve contemporary issues (al-Akhar, 2002).
In contrast to the traditionalists, the second group is recently
formulated by a group of scholars known as ‘the Quranic people’.
They argue that God’s commands revealed in the sacred Qur’an are the only
infallible source of Shariah because, as they argue, the Qur’an
established unequivocal and comprehensive principles and, therefore, there
is no need for any other sources other than the Qur’an to deduce the rules
of Shariah. They reject the approaches formulated and applied by the four
Sunni schools. Furthermore, they deny the Sunnah tradition as the second
source of Shariah. They sustain their standpoint upon the following
reasons (Mansour, 2008):
First, the Prophet Muhammad prohibited his followers from writing his
Second, the Qur’an has completed the divine religion.
Third, the credibility of Sunnah tradition is weak, because Muslim
started to collect it two centuries after the Prophet era when the
Muslims began conjuring fake traditions for political reasons.
Fourth, the contradiction between the Qur’an (the first source) and the
Sunnah tradition makes the latter unauthentic, because God promised to
keep his words (the Qur’an) uncorrupted.
Although, the Quranic people have been labelled by the Sunni scholars as
apostates (Ismael, 2008), they were able to re-interpret the Quranic
verses to come into harmony with contemporary international human rights,
such as declaring freedom of religion and denying the punishment of
stoning (Mansour, 1998).
At the time of this writing, Islamic criminal law was not codified. None
of the groups described above have formulated a criminal code parallel to
the secular legal systems. Although Muslim clerics disparage secular legal
systems that are applied in several Muslim countries, such as in Jordan,
they have not produced an alternative perspective other than vague and
Different types of crimes, including cyber crime, were overlooked. This,
of course, poses a potential risk to cyberspace, because the Shariah’s
principle of criminalisation states that there is no crime without law.
The Almighty said: ‘And nor shall we punishing until we had sent them
an Apostle’ (Qur’an 17:15). It can be understood from this that crimes
and punishments should not be applied retroactively.
If there is no response from Shariah, then Muslim hackers and cyber
criminals who have committed cyber crime can escape conviction. Therefore,
the question that should be asked is why Muslim scholars, both
traditionalists and reformists, have not formulated a criminal code? Is it
because Shariah is inflexible or obsolete?
Shariah tends to
be Inflexible and Non-Responsive to Modern Issues
There are two statements about Shariah inflexibility or rigidity.
Contemporary Muslim scholars argue vehemently that Shariah’s principles
are applicable in any place and at any time. This direction is adopted by
the traditionalists and reformists. Conversely, secular Muslim scholars
and some of the orientalists
describe it as being rigid, stagnant, and incapable of interacting with
society developments (Al-Akhdar, 2007).
The author presumes that both of the above statements are inaccurate and
misleading. This can be explained through the examination of two different
statements issued by Imam Ibn Timia (1263-1328) and Imam Ibn Qayyim
(1292-1350) respectively. The former statement centres on the spiritual
meaning of the Shariah. He stated, ‘Shariah is full of benefits, full of
purposes, and objectives, so anything unjust or harmful is not from
Shariah’. Imam Bin al Qiym, on the other hand, stated that, ‘Fatwa
is changeable according to the benefits, conditions, times, places, and
individuals’ intentions’ (Bin al Qiym, n.d.). Another scholar added that
Shariah, in all its judgments, must bring benefits and prevent corruption
(al-Shak, n.d.). Indeed, the Prophet’s companions had changed their
Fatwas and, most importantly, suspended God’s commands on several
occasions to meet the new situation they had encountered. For example, in
two different incidents, Omar Bin Khattab, the second Caliph, applied the
spiritual meaning of the Shariah through suspending a scripture command.
In the first instance, he suspended the punishment theft during the famine
year, and in the second incident, he terminated a Quranic command and a
Prophetic tradition when he stopped paying alms to the non-believers who
used to receive a share of assistance from the Prophet. In the first
instance, his argument was that applying Shariah in such a case would
result in unjust treatment. Meanwhile, in the second instance, he claimed
the command became obsolete; it was applied when Islam was weak, but made
it strong, hence there was no need to solicit their support (Foda, n.d.).
This is, of course, contrary to one of the most important principles of
Shariah which states ‘no Ijtihad
when an explicit text exists in the Holy Qur’an’ (Ramadan, 2005). In other
words, the exercise of independent judgment is constrained by the commands
laid down by Allah.
From the above statements and examples, it can be concluded that the
spiritual meaning of Shariah, i.e. justice and full of benefits, is
applicable in any place and at any time. Omar was able to apply Shariah
and frame appropriate potential solution to problems and to exercise
appropriate Ijtihad. On the other hand, Shariah scriptures that were
formulated and developed by the four Sunni schools twelve centuries ago
are quite rigid; in some cases, inflexible and incapable of responding to
changing and emerging issues.
In criminalisation and punishment, the Shariah law objective is to protect
five important values: religion, human life, intellect, linage, and
property. Muhammad Mohyi Aldeen (n.d.) indicated that the criminalisation
process in the contemporary world is similar to that found in the Shariah;
it is established to protect interests that are vital to human beings.
Criminalisation system in Shariah law is divided into three categories to
protect these five vital values, Hudud,
Qisas and Ta’azir.
The Hudud category is rigid. It specifically addresses six forms of
physical crimes: apostasy, drinking wine, adultery, theft, defamation, and
high way robbery. It protects all the five pillars mentioned above through
a narrow approach that focuses only on God’s rights (Quraishi, 2005).
In other words, these actions are criminalised to meet the five objectives
of the Lawgiver (Allah). The Qisas category is also specific, and it
protects human life against all forms of physical violence, such as murder
and injury (Barak, 2000). Cyber crime cannot be criminalised under the
Hudud or Qisas categories, because none of the cyber crimes can be
portrayed as a physical action against anyone of the five elements.
However, in case cyber-stalking gradually scales up from a remote threat
to actual physical harm or injury and can be prosecuted under Qisas.
Lastly, the Ta’azir category deals with the least serious crimes (Vogel,
2000, p. 247). It is unspecific and flexible, and, therefore, all sorts of
crimes that are not addressed under the above two categories can be
punished under Ta’azir, including incomplete Hudud crimes (Rudolph, 2005,
p. 65). For example, Hudud punishment for theft is amputation, but the
punishment must be decreased to Ta’azir if the proscribed amount of money
stolen was not attained. The Prophet said ‘The hand is not cut off for
fruit or palm pith’ (Tarjumana & Johnson, n.d.). Unlike in Hudud and Qisas,
in Ta’azir the Judge’s discretion is unrestricted and he can impose the
appropriate punishment for offences committed against any of the five
elements. Furthermore, in the Ta’azir category, Ijtihad
(Reasoning), Maslahah Mursalah, (Considerations of public interest)
and Qiyas (Juristic analogy) play critical roles in decision
making. Nevertheless, cyber crime cannot be brought under this category
unless the Shariah itself criminalises or otherwise prohibits such
activities. Therefore, the main question addressed here is: Does Shariah
prohibits cyber crime offences?
Shariah does not explicitly criminalise any kind of cyber crime, but it
does contain general rules of criminalisation. The earlier mentioned
scholars, traditionalists and reformists approach criminalisation issues
differently. According to the traditionalists, the second source of
Shariah law, (the Prophet Tradition) provides significant support
for the criminalisation of cyber crime. Scholars have quoted a number of
Hadiths, for example, the Prophet said ‘No harm shall be inflicted
[on anyone] nor reciprocated [against anyone]’ to criminalise emerging
crimes. The Hadith provides a legal basis for criminalising cyber crime,
because the latter causes harm, either directly to the computer systems,
or indirectly to an individuals’ property – one of the important five
values protected by Shariah. Nevertheless, Shariah traditional sources are
not sufficient to address cyber crime in detail; therefore, a secular
criminal code is important to criminalise all forms of cyber crime. The
code aims at protecting the five values and, therefore, meets the
spiritual meaning of Shariah. For example, Saudi Arabia
applies the traditional form of Shariah law, but it has also enacted the
modern Cybercrimes Act, equivalent to that found in developed
countries, to punish cyber criminals appropriately. It criminalises
hacking acts, including cyber-sabotage (Kornakoy, 2007).
The second approach interprets the Quranic injunctions liberally. Quranic
commands provide some support for the criminalisation of cyber crime. The
Almighty said in Sourat Al-A'raf, ‘hence, do not spread corruption on
earth after it has been so well ordered’ (Qur’an 7:56). Al-Baqara (The
Cow) verse 60, states, ‘Eat and drink the sustenance provided by God, and
do not act wickedly on earth by spreading corruption’. Another verse
states, (206) ‘God does not love corruption’. According to the classical
interpretations, the word ‘corruption’ has two meanings. One is religious
disobedience, such as non-believing in God (Kuffar), and the other
is sins or committing sins. In Webster’s Dictionary the word ‘sin’
means an offense against God, religion or good morals.
In Shariah, sin is divided into two categories: Kubra, which is a
supreme, mortal sin, such as ‘Shirk’, that is, associating someone else
with God, and Sugkra, which is inferior, venial sin and shortcoming
(Abd-UL-Massih, n.d.). The former sin incurs serious punishment, which
falls under the Hudud or Qisas, but the latter category may incur Ta’azir
punishment. Thus, it can be seen that both sins are associated with
breaking God’s will and nothing to do with cyber crime, such as denial
service of attack (DoS). Consequently, it should be reinterpreted beyond
the literal meaning of the scripture to include any mischievous
corruption, including hacking and cyber–sectarian conflict. This objective
could be attained by stretching the meaning of corruption to make it more
appropriate to address digital corruption and hacktivism.
Information and communications technology has the potential to offer
unprecedented opportunities for criminals to commit new illegal activities
because of the unique environment in which users interact with each other
and with virtual objects. Shariah and Islamic criminal law were built and
developed many years before the arrival of information technology. Muslim
scholars, traditional and reformists face the toughest question of all:
How to bring Shariah law into line with contemporary technological
development and criminalisation? While traditionalists always defend the
capability of Shariah law to address contemporary issues, they appear
unable to move one step forward and present a comprehensive legal response
to these issues. Conversely, reformists reshaped significant parts of
Shariah to come into harmony with contemporary issues. However, none of
the groups approached cyber crime, or even shaped a criminal code parallel
to modern legal systems. This situation will give Muslim hackers and
cyber-terrorists justification to attack cyberspace. Shariah law is rich
with general principles as well as its objective urge its followers to
develop efficient response to cyber crime.
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