FORGIVING SOMALI PIRATES: SHARIAH IN PRACTICE

FORGIVING SOMALI PIRATES: SHARIAH IN PRACTICE

                                      RAMIZAH WAN MUHAMMAD
This paper addresses the issue of Somali pirates in accordance with Islamic criminal law. Piracy is considered as an
act of Hirabah or terrorism which entails hudud punishment; death penalty. However, there is an exception to this
crime whereby those in authority can forgive the muharib, persons who committed the crime, if they have repented
and surrendered themselves to the authority. Hirabah is the only crime where Allah has explicitly mentioned about
the exception but with conditions attached in the Quran. The act of Somali pirates are similar with the acts of
Muharib which took place in the period of the Prophet Muhammad S A W. Allah has labelled to those who
committed this kind of crime as equivalent to destroying the world and hence will be punished severely. At the same
time, Allah also gave an exception, to forgive and remit the hudud punishment if they have repented. In other words,
Islam emphasises punishing the criminals and forgiving them equally. Hirabah is a wide crime that includes any act
which leaves the victim and society in fear. Some of the English translators defined Hirabah as highway robbery,
brigandage and armed robbery. But the author believes that the correct term should be terrorism because of the effect
of leaving the people live in fear. Somali pirates has becomes a global issue and affect the global trade and economy
of the world. The first part of this paper will trace the history of Somali pirates and how they operated in committing
the crimes. The second part of this paper will look at the shariah to determine the circumstances which would
permit punishing or forgiving the pirates.

Key Words; Shariah, Piracy, Somalia, Hirabah, forgiveness,

Introduction

Between 2010 and March 2011, a total of 587 actual or attempted acts of piracy were recorded in
the world. In 2010 alone there were 445 actual and attempted attacks and between January 2011
to 31st march 2011 there were 142 attacks. Of the total figures in 2010, 219 were committed by
Somali pirates in the Gulf of Aden, Red Sea, Arabian Sea and Somalian coast. Between January
to march 2011, there were 97 attacks committed by Somali pirates. In 2008 to 2009, there were
541 cases of which Somali pirates share stood at 322 piracy attacks (See tables 1-4).
Somali pirates are operating not only in the coast of Somalia but in the Red Sea, Gulf of Aden
and off the Horn of Africa. The Horn of Africa denotes the region including the countries of
Djibouti, Eritrea, Ethiopia and Somalia. Some people include Kenya, Sudan and Tanzania.
Sometimes it is referred to as the Somali peninsula.

Piracy Defined

Peter Chalk has defined piracy as “an act of boarding or attempting to board any ship with the
apparent intent to commit theft or nay other crime with the apparent intent or capability to use
force in furtherance of the act.1 Piracy is an act of robbery, or other act of violence or
depredation, committed at sea launched from one vessel to another in order to make private gain.
It is the first crime to have been recognized as a crime against international law and subject to
universal jurisdiction.

However, article 101 of The United Nation Convention on the Law of Sea 1982 (UNCLOS)
defines piracy to mean: (a) any illegal acts of violence or detention or any act of depredation,
committed for private ends by the crew or by the passengers of a private ship or a private
aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place
outside the jurisdiction of any State. This provision appears to restrict that piracy which took
place in the high seas only.
Armed robbery is also a form of violence against any ships but the difference between piracy and
armed robbery is that the latter takes place within the state’s internal or territorial water while
piracy is committed usually outside the territorial waters.
To analyze Somali piracy one should ask some vital questions:
   a) Who are these Somali pirates?

   b) Why do they take up piratical activities?

   c) Do the Somali pirates enjoy outside support in terms of weapons, intelligence, money or
       other helps?
Some of the Somali pirates are in general trained militia fighters based in the semi autonomous
region of Puntland and Somaliland.2 They travel in small speedboats or stolen fishing trawler and
they focus on “slow and bulk” carriers. They use AK47 and rocket propelled grenades (RPG)
launchers.
Somalia’s Deputy Prime Minister Abdul Rahman al-Ddan told African Union: “ If the
international community wants to limit the acts of piracy, it has to help Somalis keep illegal
foreign fishing and toxic waste dumping away from their coast”3 It was claimed that nuclear
waste was also being dumped in their water.4 It was reported also that most of the pirates are
local fishermen who have revolted against the international vessels stealing their fish. The
vessels also grabbed all the fish and leave local fishermen empty-handed.5
In an interview between Somali pirates who have captured a Ukranian cargo ship in September
2009 with a News Week’s reporter, Shamun Indhabur, it was reported that the reasons for the
increased piracy in the late 2000s was the unemployment in their home country and the only
thing that will be able to end Somali piracy is a strong government.6
The focus of Somali pirates are for private ends; to take money. As far as Somali pirates are
concerned, their piracy has nothing to do with politics or have no political agenda. To the extent
that piracy involves aggression and violence, it can appear to be similar to terrorism. However,
the two are different in terms of objectives. Hence, it is not right to equate pirates and terrorist.
Terrorist is claimed to have political gains in pursuing their activities. Some quarters claimed that
Somali pirates acted in self defence; to protect their coast and livelihood.
Piracy in Islamic law
Piracy is a form of gang robbery with the intention of private gains; to take money or belongings
of the victims. In Arabic, piracy can be categorized under Hudud punishments and it is known as

Hirabah. Hirabah literally means “making war” and is interpreted as including acts of terrorism
with the intention to take money or for private gain. The word hirabah is mentioned in the Holy
Qur’an (2:33)7 when Allah mentioned the word hirabah as making war or waging war upon
Allah and His messenger. This kind of act, the Qur’an emphasizes, spreads corruption in land
and eventually instils fear in the victims and public at large. Sometimes the word hirabah is
defined in English as armed robbery or highway robbery. In the context of Islamic law, hirabah
is any form of aggression which causes destruction to the property or persons and instils fear in
the victim or public at large with the intention to rob or to threaten or kill the victim where there
is no possibility for the victim to seek for help. Hirabah entails hadd punishment by virtue of the
above verse from the Holy Quran. Hence, piracy, armed robbery, rape, burglary, hijacking ships
or airplanes are the types of hirabah crime because the crime took place in public. The Hadd
punishments for those who committed hirabah are vary according to the type and severity of
criminal acts committed by the criminal.
The criminal acts are of 4 types. First, if the criminal kills and robs the victim, the punishment
would be crucifixion and killing. Secondly, if the criminal kills the victim but fails to take the
property then, he will be killed. Third, if the criminal robs the property of the victim then the
punishment would be amputation of right hand and left leg. Fourth, if force is used but does not
results in loss of property or life then the punishment is banishment or imprisonment. Last, if the
criminal injures the victim, then the criminal will have to pay diyat or blood money. However,
there are some jurists who opine that regardless of the type of criminal acts, the court has the
discretion to decide upon the type of punishment to be awarded to the criminal.
Repentance and Forgiveness in Hirabah
In the same chapter, verse 34 has made the exception to the punishments for those who have
committed the crime of hirabah. Allah says in the Holy Qur;an: “ Except for those who repent
before They fall into your power: In that case, know that Allah is Oft-forgiving, Most Merciful.”
The above provision has been unanimously agreed upon by Muslim jurists that this is an
exception to the hudud punishments for the hirabah criminal provided he/she surrenders to the
authority before being arrested. This kind of act (surrender) is considered as repentance and
automatically, the authority may forgive the criminal and exempt him from hudud punishments
and replace it with the ta’zir punishment. Ta’zir is a kind of punishment which is left to the
discretion of the authority to decide upon the kind of punishment to be imposed upon the
criminal.
Of the numerous juristic view, the most acceptable view is that if the criminal act leads to the
killing or injuring the victim, then the criminal shall be liable for hadd punishment and not
forgiven. Going by the same argument, the jurists are of the opinion that Somali or any other
pirates may be forgiven and not subjected to hadd punishment, if their act of piracy did not result
in the killing or injuring of the victim. The two additional conditions for forgiveness are: the
pirates must surrender to the authority and they must express repentance for the hirabah crime
they have committed. Nevertheless, the pirates must still be punished with the ta’zir punishment
the modalities of which are left to the discretion of the legal, legitimate authority.
Conclusion

Before the world condemns the pirates and piracy committed by Somalis, one should analyze
and study in detail the reasons for the piracy, the intention of the pirates, and the consequences of
piracy. The incidents in Somalia not only create an ideal opportunity to establish an international
framework for deterring and prosecuting international maritime terrorists attacks but more
importantly, to apply the just and balanced shari’ah law to prevent further attacks and promote
peace and stability in Somalia and in the world.8

Table1: Attacks by Location, January-December 2010Source: International Maritime Bureau
Annual Report Jan-Dec 2010
Table2: Attacks by Location, January-March 2011

Source: International Maritime Bureau Quarterly Report Jan-March 2011

Table 3: Types of Violence to Crew by Location, January-December, 2010

Source International Maritime Bureau

Table 4: Types of Violence to Crew by Location, January – March 2011

 Source International Maritime Bureau

ENDNOTES

1. Peter Chalk, “ Piracy Off the Horn of Africa: Scopes, Dimension, Causes and responses”, The Brown
Journal of World Affairs, Vol.XVI, No.2, 2010, p.90.

2. Virginia,Lunsford, “Historiacl Piracy provides lessons for dealing with today’s Somali pirates”, in Piracy
on the High Seas, Noah Berlatsky ( ed) , Greenhaven Press, U.S. 2010, p.41.

3. “Do Somali Pirates have legitimate grievances?” by Valerie Noury, New African, June 2010, p.30.

4. Johann Hari, “ Somali “Pirates” are actually trying to stop Illegal fishing Dumping and Fishing” in
Piracy on the High Seas, Noah Berlatsky (ed), Greenhaven, U.S. 2010.p.77.

5. “The Reasons behind piracy”, by Massip Farid Ikken, New African, July 2009, p.34.

6. Newsweek, Vol.153, Issue no.2, Dec 2009, p.12.

7. “The punishment of those who wage war against Allah and His Messenger, and strive with might and
main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from
opposite sides, or exile from the land: that is their disgrace In This world, and a heavy punishment is
theirs In the Hereafter”

8. Nicole Stillwell, “ Robbers or Robinhoods?: A Study of the Somali Piracy Crisis and a Cll to develop
an international Framewoork to combat maritime terrorism”, Loyola Maritime Law Journal, Vol.7. 2009.
P.129.

Bibliography

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Noury, Valerie. “ Do Somali pirates have legitimate grievances?”. New African, June 2010.

Hari, Johann. “ Somali Pirates are actually trying to stop illegal fishing dumping and fishing”. In
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Author Identification

Ramizah wan Muhammad, LLB., MCL., Ph.D., is Assistant Professor at the Department of
Islamic Law, Ahmad Ibrahim Kulliyyah of Laws, IIUM. E-mail: ramizah@iium.edu.my