The year is 1942 and Heinrich Müller chief of the Gestapo, Nazi Germany's feared secret police, is writing a memo outlining the introduction of new "Verschärfte Vernehmung" or "enhanced interrogation techniques." The memo lists some of these enhanced techniques as:
· Simplest rations
· Hard bed
· Dark cell
· Deprivation of sleep
· Exhaustion exercises
· Blows with a stick (in case of more than 20 blows, a doctor must be present)
In 1946, after the defeat of Nazi Germany three German officers – Bruns, Schubert and Clemens stood trial in Norway accused of the murder and torturing of Norwegian citizens under German occupation. All three were convicted of war crimes for using this "Verschärfte Vernehmung" that the court clearly described as "torture." All three were sentenced to death.
In their defence the three Nazi's argued that the victims were part of an illegal insurgency against the German occupation of Norway. Members of this insurgency "were not in uniform and bore no special marks of distinction on such occasions; nor did they carry their weapons openly. They had, therefore, no rights as soldiers according to Article 1 of the Regulations on Land Warfare (Hague Regulations)".1 In other words they were "unlawful combatants" upon which international law did not apply.
One year later another war crime trial took place across the Atlantic in America. This time a Japanese soldier was sentenced to 15 years in prison for war crimes after using water-boarding against a US citizen during World War II.
60 years later…
It is January 2002 and John Yoo, Deputy Assistant Attorney General at the US Justice Department is writing a memo clarifying the legal position of detainees captured from the war in Afghanistan. He unequivocally states that "these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that these treaties do not apply to the Taliban militia". In other words they are "unlawful combatants" upon which international law does not apply.
According to ABC News in mid-March of the same year, the CIA got authorization to use "enhanced interrogation" techniques on detainees from Afghanistan. These techniques included:
· Water-boarding: prisoner bound to a board with feet raised, and cellophane wrapped round his head. Water is poured onto his face and is said to produce a fear of drowning
· Cold cell: prisoner made to stand naked in a cold, though not freezing, cell and doused with water
· Standing: Prisoners stand for 40 hours and more, shackled to the floor
· Belly slap: a hard slap to the stomach with an open hand. This is designed to be painful but not to cause injury
On 8th March this year, George Bush vetoed legislation that would stop the CIA using these "enhanced interrogation" methods such as simulated drowning or "water-boarding". He said he rejected the intelligence bill, passed by Senate and Congress, as it took "away one of the most valuable tools in the war on terror".
The US position on torture was summed up by former US president Jimmy Carter in an interview on October 10th 2007 when he said, "The United States tortures prisoners in violation of international law."
The similarities between Nazi Germany's stance on torture and the United States are disturbing to say the least. The term "enhanced interrogation" used by the CIA is an almost direct translation of the Gestapo term "Verschärfte Vernehmung." According to John Yoo these interrogation techniques are not torture since they are not "specifically intended to inflict severe physical or mental pain or suffering." This argument is almost verbatim of that made by the Nazis who argued that "the acts of torture in no case resulted in death. Most of the injuries inflicted were slight and did not result in permanent disablement".2
Jon Yoo in an LA Times editorial said, "the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war." Is this not exactly the same justification given by the Nazi's against the Norwegian insurgency that they "were not in uniform"?
Muslims are no strangers to torture. The tyrannical governments in the Muslim world routinely torture their citizens and are so skilled at it that America "outsources" much of its interrogation to them through its "extraordinary rendition" programme. The dungeons in Egypt, Syria, Algeria, Morocco and Uzbekistan are full of believers whose only crime are their love for Islam and a desire for the return of the Khilafah ruling system.
Egypt in particular is so brutal that even growing a beard is enough for the authorities to arrest, torture and imprison the person. Imad Kabir was filmed being tortured and sexually assaulted by police officers. The video even made its way on to the Internet. But instead of the police officers being prosecuted the victim was jailed for three months for 'resisting authority.'3
Examples such as these convinced many Muslims that for the Muslim world to emerge from the "dark ages" it must adopt the western values of Human Rights and democracy. However, America's legalisation of torture in the 21st century exposes the fundamental problem with man-made western values – there are no fixed principles of right and wrong. Torture in World War II was illegal but today it is legal. Democracy is the "ruling of the people, by the people for the people." If the people decide torture is a necessary evil then it can be legalised simply by voting on it. Tony Blair admitted this when he said, "Let no-one be in any doubt, the rules of the game are changing." 4
Israel is heralded as the only democracy in the Middle East. Until 1999 torture of Palestinians within Israel itself was legal. The continuous killing, torture and oppression of Palestinians are legal and Israeli governments seen as not upholding these "values" are simply voted out by the people.
Torture is forbidden in Islam
The principles of good and bad are fixed in Islam. Torture was prohibited by the Messenger of Allah (saw). Regardless of the majority opinion or the benefit and harm established through its use shari'ah has forbidden torture.
Muslim narrated from Hisham bin Hakeem, who said; "I bear witness that I heard the Messenger of Allah (saw) say; 'Allah will punish those who punish the people in the Dunya.'"
He (saw) also said: "There are two types of the people of Hellfire I have not seen yet; some people who have whips like the tails of oxes by which they flog the people." 5
Islam has also forbidden the violation of people's sanctities, dignity, funds and honour, and the dishonouring of the sanctity of their homes.
The Messenger of Allah (saw) said: "All things of a Muslim are inviolable for his brother in belief: his blood, his wealth and his honour." 6
Only the Islamic Aqeeda can truly prevent torture
The majority of torture inflicted upon Muslims by the western powers takes place in the occupied lands of Iraq and Afghanistan. Blinded by hatred US and UK troops take revenge against Muslims they are fighting or in many cases against ordinary civilians including women and children.
The 2005 Haditha massacre in Iraq is a vivid example of this. After a US marine was killed in a roadside bomb, US soldiers blinded by hatred went on a rampage killing 24 Muslim men, women and children.
In response to the Haditha massacre US troops in Iraq were given 30 days of ethics lessons in "core warrior values." However, similar to the west's outlawing of torture, "core warrior values" in western armed forces are not fixed principles. They are "paper values" that in the heat of battle are simply thrown away.
The reasons western troops fight in the first place is one of the fundamental causes of their behaviour. Soldiers fighting for fun, money or status will leave all civilised military conduct if it doesn't achieve any benefits for them. Most of the torture in Iraq has only come to light because US and UK troops took "trophy" photos of the abuse so they can show their friends and family back home. Videos of US troops fighting to heavy metal music, reveling and laughing as they shoot Iraqi's are readily available on the Internet.
With no firm belief in the hereafter, the death of close friends in battle and the constant stress of fighting will lead to western troops committing atrocities such as Haditha or the many more that go unreported.
Only soldiers with a strong belief in Allah (swt) and conviction in accountability for all their actions no matter how small, will uphold true "warrior values" in the heat of battle.
Allah (swt) says in Surah Al-Zalzala:
"Whoever has done an atom's-weight of good will see it, but whoever has done an atom's-weight of evil will see that." [TMQ 99:7-8]
This Day of Judgement is a frightening day for those who disobey Allah (swt).
Allah (swt) says in Surah 'Abasa:
"The Day man will flee from his own brother, his mother, his father, his wife, his children: each of them will be absorbed in concerns of their own on that Day." [TMQ 80:34-37]
The sharia has specified the valid reasons Muslim soldiers (mujhaideen) can fight for. It has also detailed rules of war that must be adhered to even in the heat of battle.
The primary reason for fighting jihad is not for any material, nationalistic or sectarian interests. Rather it is performed purely to make Allah's word the highest.
A man came to the Prophet and asked, "A man fights for war booty; another fights for fame and a third fights for showing off; which of them fights in Allah's Cause?" The Prophet said, "He who fights that Allah's Word (i.e. Islam) should be superior, fights in Allah's Cause." 7
Prisoners of War
1300 years before the Geneva Convention Islam forbade the mistreatment of prisoners of war. There is no such concept as "unlawful combatants" in Islam. The sharia rules on dealing with captives i.e. releasing or ransoming them were explicitly stated in the Holy Qur'an.
After the Battle of Badr the Prophet (saw) ordered the Muslims to treat the prisoners of war so well to such an extent that the captors used to give the captives their bread (the more valued part of the meal) and keep the dates for themselves.11
Torture in western judicial systems
In much of Europe, medieval and early modern courts freely inflicted torture, depending on the crime and the social status of the suspect. Torture was deemed a legitimate means for judges to extract confessions or to obtain the names of accomplices or other information about the crime. In the Middle Ages especially and up into the 18th century, torture was deemed a legitimate way to obtain testimonies and confessions from suspects for use in judicial inquiries and trials.
When Islam emerged in the 7th century it formally abolished the torture of suspects that was prevalent in the Persian and Roman Empires that dominated the world at that time. The shari'ah was far superior to the man-made Roman law that much of Europe is still based upon and which justified the legality of torturing suspects. As Nick Cohen said, "When medieval Europe discovered that Roman law allowed the torture of suspects, everyone from the Scots to the Spanish embraced the rack."
European Museums are full of medieval torture devices that are a historical record of European "justice".
Torture in the Islamic Judicial System is forbidden
Many of the legal principles contained within shari'ah and implemented through the Islamic judicial system were not adopted in Europe until over 1000 years later. It can be argued that even in the 21st century these legal principles have been abandoned with torture, imprisonment without trial, guilty until proven innocent and hearsay evidence all being used against Muslims under the guise of the 'war on terror.'
Independent Judiciary
In the Khilafah, although historically many Khulafaa' abused their executive powers the judiciary in the Khilafah was independent and solely based on sharia.
There are two types of judicial independence - institutional and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that the judge should be able to decide the outcome of a trial solely based on the law and case itself, without letting the media, politics or other things sway their decision.12
Historically, decisional independence always existed in the Khilafah. Under the Abbasids they established the Dar al-Adl (House of Justice) which made the judiciary institutionally independent as well. The future Khilafah will also enshrine an institutionally independent judiciary embodied in the Mahkamat ul-Mazalim (Court of Unjust Acts).
Decisional independence
The Sharia explicitly states that a judge must give an honest, knowledgeable and unbiased judgement on a case.
The Prophet (saw) said: "Judges are of three types, one of whom will go to Paradise and two to Hell. The one who will go to Paradise is a man who knows what is right and gives judgment accordingly; but a man who knows what is right and acts tyrannically in his judgment will go to Hell; and a man who gives judgment for people when he is ignorant will go to Hell." 13
The Shari'ah also specifies how the judge should act within the judicial court sitting.
The Messenger of Allah (saw) said: "Whoever Allah tests by letting him become a judge, should not let one party of a dispute sit near him without bringing the other party to sit near him. And he should fear Allah by his sitting, his looking to both of them and his judging to them. He should be careful not to look down to one as if the other was higher, he should be careful not to shout to one and not the other, and he should be careful of both of them." 14
Habeas Corpus
Islam mandated the right to innocence until proven guilty centuries before principles of Habeas Corpus were developed in the West. The Qadi (judge) in the Khilafah can only pass judgment in a judicial court and suspects must be brought before the Qadi.
Narrated Abdullah ibn az-Zubayr: "The Messenger of Allah has ordered that the two disputing parties should sit before the judge." 15
Britain formally adopted this principle in the 17th century Habeas Corpus Act 1679. However, there is an ongoing debate that terror suspects should be detained without charge for up to 90 days abandoning this long held principle. Currently they can be held for 28 days without charge.
Innocent until proven guilty
The Presumption of Innocence exists in a shari'ah court where the defendant is innocent until proven guilty. The responsibility of providing the evidence is on the plaintiff (the one who initiates the law suit) not the defendant.
The Messenger of Allah (saw) said: "It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves." 16
The fate of the detainees in Guantanamo Bay is evidence enough that this principle does not apply to Muslims. Even though they have been held for years without any trial US Vice-President Dick Cheney said, "The important thing here to understand is that the people that are at Guantanamo are bad people. I mean, these are terrorists for the most part."
Burden of proof
The burden of proof required to convict someone of an offense in a Shari'ah Court is far higher than in any western court. The shari'ah court does not accept circumstantial evidence as a legal proof, and only trustworthy witnesses, whether Muslim or non-Muslim are allowed to give testimony.
Forced confessions extracted under torture are not accepted as proof in a Shari'ah Court. If there is any doubt over the confession of the individual it is thrown out and the punishment waived. Perpetrators of the torture will be severely punished.
One of the principles of the Islamic Punishment System is that it's better to release a guilty person than punish an innocent person. Ultimately there is no escape from justice. If a guilty person avoids punishment in the dunya they will have to answer before Allah (swt) on the Day of Judgement.
It is narrated from Aisha (ra) who said, The Messenger of Allah (saw) said, "Avert the hudud from Muslims as much as you can. So if there is a way out for him, let him off. For verily, it is better for the Imam to err in pardon than to err in punishment." 17
If the suspect retracts their confession or there is doubt over their sanity then the confession is rejected.
It was narrated from Abu Hurayrah who said, "A man of the Muslims came to the Messenger of Allah while he was in the mosque and said, 'O Messenger of Allah, I have committed zina.' He turned away from him until he replied four times. When he testified over himself four times, the Prophet (saw) called him and said, 'Are you insane?' He said, 'No.' He (saw) said, 'Are you a muhsan (married)?' He replied, 'Yes.' So the Prophet (saw) said, 'Go with him and stone him.'" 18
Amnesty International estimates that 75% of the world's governments currently practice torture. With America using the 'war on terror' as an excuse to legalise torture this will only worsen the plight of those languishing in the prisons of brutal dictators around the world. Uzbekistan literally boils alive its Islamic opposition and the west turns a blind eye since quelling any Islamic political movements falls under the 'war on terror.'
The world is crying out for a state to stand up for all the oppressed peoples whether Muslim or non-Muslim and make a firm stance internationally that torture is unacceptable. This state is the Khilafah that through its implementation of the high Islamic values will become a much needed beacon of light in the current climate of darkness.
Allah (swt) says in Surah Ibrahim:
"Alif Laam Ra. This is a Scripture which We have sent down to you [Prophet] so that, with their Lord's permission, you may bring people from the depths of darkness into light, to the path of the Almighty, the Praiseworthy One." [TMQ 14:1]
References
1 Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO, 1948 http://www.ess.uwe.ac.uk/WCC/bruns.htm
2 Ibid
3 BBC News Online, 10 January 2007, http://news.bbc.co.uk/2/hi/middle_east/6249027.stm
4 Tony Blair, Downing Street Press Conference, 5 August 2005, http://www.pm.gov.uk/output/Page8041.asp
5 Narrated by Muslim from Abu Hurairah
6 Ibid
7 Bukhari, Muslim
11 Safi-ur-Rahman Al-Mubarakpuri, 'The Sealed Nector,' translation of Ar-Raheeq Al-Makhtum, p. 275
12 A Legal framework primarily used in the US for discussing the judicial branch of government
13 Sunan Abu-Dawud, Book 24, Number 3566: Narrated Buraydah ibn al-Hasib
14 Baihaqi, Darqutni, Tabarani
15 Abu Dawood, Book 24, Hadith 3581
16 Al-Baihaqqi
17 Abdurrahman Al-Maliki, 'The Punishment System,' translation of Nidham ul-uqubat, Dar Ul-Ummah, Beirut, Second Edition, Chapter: THE EVIDENCE (AL-BAYYINA) OF ZINA
18 Ibid
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