Title: Assessing Apostasy, Blasphemy and Excommunication (takfir) in Islam and Their Modern Application by States and Non-State Actors A Thesis Submitted for the Degree of Doctor of Philosophy by Masaki Nagata Supervised by Dr. Mohamed Elewa Badar Brunel Law School Brunel University June 2016 Abstract In certain contemporary Muslim majority states apostasy and blasphemy are not merely religious sins; they are acts which potentially have legal, or extra-legal, consequences. Although apostasy has not been criminalised in many such states, extrajudicial killings of apostates are carried out by some extremist groups and individuals. Such groups always justify these murders of fellow Muslims and non-Muslims on the grounds of apostasy and blasphemy. The concept and use of takfir (excommunication) is also a serious issue in Muslim majority states. Groups such as Daesh (also known as Islamic State of Iraq and Syria) rely on takfir to attack fellow Muslims, despite there being no legal basis in Shari’a for the use of takfir or for criminalising apostasy. Although the concept was developed by people, not God, takfir are now being used to bypass rational human judgement. Their use plays a major role in many of the religious issues confronting Muslim majority states, such as the criminalisation of apostasy and blasphemy. This thesis analyses the central issues of apostasy, blasphemy and takfir collectively, as their history and their contemporary use and misuse by extremist groups are inextricably entwined. The key finding is that the right to punish apostasy and blasphemy and to issue declarations of excommunication (takfir), all originally reserved in Islam for God only, have been appropriated by man. Through developments in the understandings of these concepts, all three have come to be seen by some scholars and ordinary believers as a ‘right of man’. This evolution in interpretation and in application is inconsistent with Shari’a law. Key Words Islamic law; apostasy; blasphemy; takfir; extremist groups i Background to the research Contemporary Islam is confronted by a number of serious issues. Extremist groups in many Muslim majority states, such as Daesh in Iraq and Syria, are all too willing to label their opponents or rulers ‘unbelievers’ and order their fellow Muslims to kill them in the name of God. Apostasy has effectively been criminalised in some countries even though there may be no codified apostasy law in those states. There are major conflicts around Shari’a law: some Muslims and scholars believe in the supremacy of Shari’a over their countries’ constitutions, while other scholars, mainly Western, believe that Shari’a does not recognise religious freedom and that it is therefore inconsistent with modern conceptions of human rights. This thesis has been written to confront and refute these inaccurate claims and beliefs. (Research questions) The thesis addresses a number of key research questions. Firstly, it examines why apostasy and blasphemy are considered to be offences punishable by death under traditional Islamic law, and why some Muslim majority states and extremist groups still consider apostasy to be a crime. Shari’a had always been interpreted by scholars until Muslim states started to codify it in the 19th CE. This thesis analyses how this codification of Shari’a has affected apostasy and blasphemy cases in these countries. It considers the reasons for Shari’a being viewed as more powerful than the constitution, and whether it is consistent with modern notions of ii religious freedom and international human rights. These issues coalesce in the fundamental question of whether Islam allows true religious freedom. (Research Methodology) The methodology employed in this thesis is to explore the changing meaning of apostasy and blasphemy throughout Islamic history and to compare the treatment of these acts during the Prophet’s era with the approaches taken in the mediaeval and contemporary eras, all with reference to Shari’a and international human rights. This thesis also analyses how the codification and usage of Shari’a has affected apostasy cases in various Muslim majority states. It examines the background to the reservations made by some such states to certain human rights treaties, and discusses the key problems facing international human rights today. As such treaties and concepts are based largely on such western ideas as natural rights law theory, which is the basis for international human rights law, the thesis explores these concepts too, with particular reference to freedom of religion and expression. The thesis compares international human rights instruments (especially those provisions relevant to freedom of religion and expression) and Shari’a, with reference to the Qur’an and Sunna. Finally, the link between apostasy and blasphemy and the evolution of takfir is explored in order to show how these two religious sins came to be seen as crimes. Although apostasy and blasphemy have been much researched the notion of takfir (excommunication), which is a key trigger for intra-religious conflict in Islam, has received much less attention. One of the aims of this thesis is to address the particular lack of research in this area. iii (Argument) The codification of Shari’a has had a great effect on the issues of apostasy and blasphemy in modern times. Although certain states do not have apostasy law as such, they can refer to Shari’a law if it has been codified. This touches on another issue, that regarding the distinction between divine and man-made laws. Some Muslim majority states consider international human rights to be inferior to Shari’a, as they see the former as man-made and the latter as divine. The central argument made in the thesis is that the types of interpretations made by extremist groups and some scholars, such as that true Muslims must kill unbelievers because Shari’a does not recognise religious freedom, are inaccurate and even deliberate misinterpretations. The thesis shows, via careful readings of the Qur’an and the Sunna, that Islam does recognise religious freedom and that there is no evidence that religious sins (apostasy and blasphemy) is to be treated as a crime in this world. The issues of apostasy and blasphemy are examined by comparing the Prophet’s approach to these acts with mediaeval and modern approaches. The thesis shows how their treatment has changed throughout Islamic history by analysing mediaeval Islamic texts and the evolution of the notion of takfir. Neither the Qur’an nor the Sunna consider religious sins such as apostasy and blasphemy to be crimes, but the evolution of the concept of takfir after the Prophet’s time meant that any religious sin or even believing in or developing any new tradition or interpretation came to be considered to be possible evidence of apostasy. However, close reading of the Qur’an and Sunna shows that religious sinners are not (or should not be) considered apostate and that repentance for such iv acts is recognised by Islam until death, when God will make his judgement. In a positive development some Muslim majority states, such as Tunisia, have started to prohibit takfir. v Acknowledgement With thanks to my supervisor, Dr. Mohamed Elewa Badar, for his incredible support, stimulating debate and inspiring research. vi Table of Contents Abstract Acknowledgment Introduction Chapter 1 Apostasy and blasphemy in Islam Introduction 1.1 Apostasy 1.1.1 Definition of apostasy 1.1.2 Punishment for apostasy 1.1.3 Is apostasy a hadd offence? 1.2 Shari’a 1.2.1 Is the Qur’an a penal code? 1.2.1 Sources of Islamic law / sources of Shari’a 1.3 Do the hadith support apostasy law? 1.4 Blasphemy 1.4.1 Definition of blasphemy 1.4.2 Punishment for blasphemy 1.4.3 Blasphemy in the Qur’an 1.4.4 Blasphemy in Sunna 1.5 The Prophet’s pardoning of individual blasphemers 1.6 Development of apostasy and blasphemy law Conclusion Chapter 2 State-sponsored apostasy and blasphemy in Muslim majority states vii Introduction 2.1 Codification of Shari’a and the notion of an ‘Islamic State’ 2.2 Position of Shari’a, apostasy and blasphemy in Muslim majority states 2.2.1 Afghanistan 2.2.2 Malaysia 2.2.3 Iran 2.2.4 Pakistan 2.2.5 Egypt 2.2.6 Saudi Arabia 2.2.7 Turkey Conclusion Chapter 3 Human rights obligations of Muslim majority states Introduction 3.1 Position of apostasy and blasphemy in international human rights instruments 3.1.2 Origins of Western religious liberty 3.1.3 UDHR, ICCPR, the 1981 Declaration 3.1.4 Blasphemy 3.1.5 Restrictions on expression 3.2 Religious freedom and freedom of expressions cases 3.3 Human rights obligations 3.3.1 Status of the Universal Declaration of Human Rights (UDHR) 3.3.2 Status of the ICCPR viii 3.3.3. Relative human rights approaches and the lack of applicability of the universal approach 3.4 State practices of Muslim majority states 3.4.1 Reservations against treaties 3.4.2 Defamation resolutions: a Muslim approach to religious defamation Conclusion Chapter 4 Islamic approaches to human rights Introduction 4.1 Islamic human rights instruments 4.2 Islamic approach to human rights 4.2.1 Sovereignty 4.2.2 Freedom and equality in Islam 4.2.3 Religious liberty 4.2.4 Nonadversarial relationship 4.2.5 The divine approach to human rights Conclusion Chapter 5 Takfir and non-state actors Introduction 5.1 Practice of takfir by state and non-state actors 5.2 The origin and evolution of takfir 5.2.1 The Khawarij 5.2.2 Ibn Taymiyya 5.2.3 Muhammad Ibn ‘Abd al-Wahhab ix