veiled4allah: more about hiraba

Hiraba is another hadd crime defined in the Quran. It is variously translated as "forcible taking," "highway robbery," "terrorism," or "waging war against the state." The crime of hiraba is based on the following Quranic verse: The punishment for those who wage war [yuharibuna] against God and His Prophet, and perpetrate disorders in the land is: kill or crucify them, or have a hand on one side and a foot on the other cut off or banish them from the land (Quran 5:33).

Islamic legal scholars have interpreted this crime to be any type of forcible assault upon the people involving some sort of taking of property.74 It differs from ordinary theft in that the Quranic crime of theft (sariqa) is a taking by stealth whereas hiraba is a taking by force (Doi 1984, 250, 254; El-Awa 1982, 7). (Thus, the popular translation as "armed robbery.") Although it is generally assumed to be violent public harassment, many scholars have held that it is not limited to acts committed in public places (Sabiq 1993, 2:447).

It is in the discussions of the crime of hiraba where the crime of rape appears. A brief review of the traditional descriptions of hiraba reveals that rape is specifically included among its various forms. For example, in Fiqh-us-Sunnah, a modern summary of the primary traditional schools of thought on Islamic law, hiraba is described as: a single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women ("hatk al arad"), killing cattle, or disrupting agriculture (Sabiq 1993, 450). Reports of individual scholars on the subject further confirm the hiraba classification of rape. Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, their actions would be deemed as committing hiraba (Doi 1984, 253). In addition, the Maliki judge Ibn Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn Arabi replied indignantly that "hiraba with the private parts" is much worse than a hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former (Sabiq 1993, 2:450). The famous Spanish Muslim jurist, Ibn Hazm, a follower of the Zahiri school, reportedly had the widest definition of hiraba, defining a hiraba offender as: [O]ne who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people . . . making people fear that they'll be killed, or have money taken, or be raped ("hatk al arad") . . . whether the attackers are one or many (Sabiq 1993, 2:450)."