Hirabah (Moharebeh)

Hiraba or Moharebeh means 'piracy' or 'unlawful warfare,' and in the context of sharia and Islamic (criminal) law is considered an act of violence (crime).
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Many Muslim countries, where the majority of the population is Muslims, incorporate Sharia and Islamic law into their legal framework to some extent. Sharia is a religious law forming part of the Islamic tradition; thereby, Islamic criminal law serves as the system related to the legal system of law and Islamic principles. Violators, criminals, and perpetrators will be tried in accordance with Islamic and Sharia law and Islamic criminal law in most Islamic countries. Moharebeh is the contextual conversion of Hiraba taken from Sunni Islam by the Shiiat Scholars of the Islamic Republic of Iran. Ḥirābah (Moharebeh) is a “ḥadd” crime under Islamic criminal law. The crime of Hirābah is envisaged in the Quran. The punishment for ḥirābah as a “ḥadd” crime has been prescribed by the Lawmaker in Quran Chapter al-Mā’idah, 33. The provision stipulates four types of punishment, namely: execution, cutting off of hands and feet, crucifixion, and banishment. Despite Hirābah being a serious crime and the only “ḥadd” crime with four punishments, al-Mā’idah 33 is completely silent about the meaning of ḥirābah, its constituent elements, modes of crime, and conditions. 

The political, legal, and social elements of all Islamic states are embedded into the roots of Sharia and Islamic criminal law; thereby, it is the governing foundation of all Islamic nations. Sharia is the guiding way directly associated with Quran and what it teaches us about the Sunnah which cannot be challenged, and thus are mandatory to follow. Sharia is derived from two main sources: Quran, considered God's direct word, and Hadith — a report or “saying” or statement attributed to the prophet Muhammad. Shiite Muslims also include the words and deeds of some of the prophet’s family in the Sunnah. In Iran, Sharia plays a role in adjudicating personal status issues as well as criminal cases. 

The traditional theory of Islamic jurisprudence recognizes four sources of sharia: Quran, Sunnah (authentic hadith), qiyas (analogical reasoning), and Ijma (juridical consensus). Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali, and Jafari (Shia) — developed methodologies for deriving Sharia rulings from scriptural sources. Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. Thus, some areas of sharia overlap with the Western notion of law, while others correspond more broadly to living life in accordance with God's will.

Islamic criminal law (in accordance with Sharia) divides crimes into three different categories depending on the offense: Hudud, Qisas, and Tazir: 1- Hudud, the crimes "against God," whose punishment is fixed in Quran and Hadiths; 2- Qisas, the crimes against an individual or family whose punishment is equal retaliation as referenced by both Quran and Hadiths; 3- Tazir, the crimes whose punishment is not specified in Quran and Hadiths and is left to the discretion of the ruler or Qadi, i.e., a judge. Some add the fourth category of Siyasah (crimes against the government), while others consider it part of either Hadd or Tazir's crimes. Iran applies Siyasah to crimes and interprets and connects it with Hudud crime which prescribes war against God in an Islamic country governed by Sharia and Islamic law.

Based on a hadith, jurists stipulated that hudud punishments (that included the ḥirābah or Moharebeh crime) should be averted by the slightest doubts or ambiguities (shubuhat). The harsher hudud penalties were meant to deter and convey the gravity of offenses against God rather than to be carried out. This has led to the crime being approached either in a restrictive or a permissive manner by Muslim scholars. The objective of this topic is to study the concept of ḥirābah or Moharebeh from both perspectives, their justifications and their significant impacts on the possible application of Islamic criminal law on the subject. This is carried out through careful examination of literature contributed by both classical and modern times. 

Traditional Islamic jurisprudence (fiqh) divides crimes into offenses against God and those against man. Under Islamic law, Hudud crimes are apostasy, revolt against the ruler, theft, highway robbery, adultery, slander, and drinking alcohol.

Hudud punishments range from public lashing to publicly stoning to death, amputation of hands, and crucifixion and flee. Hudud crimes cannot be pardoned by the victim or by the state, and the punishments must be carried out in public. However, the evidentiary standards for these punishments were often impossibly high and infrequently implemented in practice. For example, meeting hudud requirements for Zina and theft was virtually impossible without a confession, which a retraction could invalidate. 

The findings of various studies suggest that the restrictive approach considers Hirābah (Moharebeh) to be a crime of highway robbery – grave theft – while the permissive approach does not stipulate any particular designation for the crime. Ḥirābah (Moharebeh) to the latter is of an unlimited crime. Their justifications range from textual to contextual analyzes, application of qiyās, and other principles of Islamic  Sharia law. 

The criminal law of the Islamic Regime in Iran, known as the Penal Code, deals with the types of offenses, punishments, and the security and disciplinary measures that shall be applied to the offender. Any conduct, including action or omission, for which law provides punishment constitutes an offense. Iran’s criminal laws apply to all persons who commit a crime within the territorial, maritime, and aerial jurisdiction of the Islamic Republic of Iran.  

According to Islamic Regime of Iran Penal Code, “Moharebeh” is defined as drawing a weapon on the life, property, or chastity of people or causing terror as it creates an atmosphere of insecurity: “robbers, thieves, or smugglers who resort to weapons and disrupt public security or the security of roads shall be considered as Moharebeh” (article 279). The Penal Code also extends the interpretation of “Mohareb” to “anyone who effectively encourages combatants or those in military forces to rebel, escape, surrender, or disobey military orders, with the intention of overthrowing the government or to defeat national forces against the enemy shall also be considered as “Mohareb” (article 504).

The terms Moharebeh and the “corruption on earth” entered the legal lexicon of the Islamic Republic soon after the 1979 revolution. In 1991, the terms were embedded into Iran’s Islamic Penal Code. The Penal Code empowers the appointed judges to hand out one of the four specified punishments to the one convicted of the ‘Moharebeh’ crime at his own discretion: death by hanging, crucifixion, amputation of the right hand and left foot, or banishment. Article 287 of the Penal Code states,  “Any group that wages armed rebellion against the state of the Islamic Republic of Iran shall be regarded as a Mohareb, and if they use [their] weapon, its members shall be sentenced to death” (article 282).

However, Sharia largely comprises the interpretive tradition of Muslim scholars. The process of interpreting sharia, known as fiqh, developed over hundreds of years after the seventh century. Sharia, as a classical legal system, is the medieval body of legal rules that have given rise to a large amount of jurisprudence (‘fiqh’). This jurisprudence is not unambiguous: it has diverse legal schools, each having different interpretations with regard to methodology and rules; each Muslim country applies its own national interpretation, and in some countries serves its own national security and or interests, such as Iran, where the term Moharebeh has been used in a wide range of offenses, which brings a huge amount of subjectivity into the handling of the cases (crimes) by the court’s judges of the Islamic Regime, including the revolutionary courts, especially when it is used as a justification to issue “death sentences.” 

The following cases are examples of how the Iranian Regime uses Moharebeh to justify the death sentence for those who threaten the existence of the regime by protesting in any form (source by Amnesty International and Abdorrahman Boroumand Center):