“Don’t Write off Sharia’s Forgiveness Option Just Because of the Khashoggi Case”
Matthew P. Cavedon
Jamal Khashoggi was a prominent international journalist and Saudi dissident. He was tortured to death and dismembered in 2018 at the Saudi embassy in Istanbul. On September 7, eight Saudis were sentenced for their participation in what their government characterized as this “rogue” act. Even though Saudi Arabia executed a record 184 people last year, the most severely punished of these defendants were only sentenced to 20 years in prison. Why? One of Mr. Khashoggi’s sons declared the killers to be forgiven, “which essentially allowed them to be pardoned from execution in accordance with Islamic law.”
The outcome in the Khashoggi case shocks many people, and with good reason. But the role Islamic law gives to forgiveness has great value for victims and should not be cast aside lightly just because there may have been grave evil in its application here. First, some background on forgiveness and execution in Islam. Sharia normally prescribes execution as the punishment for premeditated murder. This was a change from pre-Islamic Arab tribal norms, which allowed the survivors of a murder victim to retaliate against both the killer and the killer’s relatives. “This often resulted in years and generations of violent conflicts and revenge attacks between families and tribes.” The Qur’an reformed this, limiting killing to the perpetrator. But it continued to treat revenge as a private right belonging to victims’ survivors. While a judge has to find guilt in order to authorize retribution, it is the right of the survivors rather than a mandated state punishment. Survivors can renounce their right and so spare a killer, as happened in the Khashoggi case. Indeed, by the 1600s, an Egyptian theologian found a “consensus” among Sharia scholars “that it is permissible to pardon in [such] cases and that this option is better” than exacting retribution.
Different modern countries implement Sharia differently. Saudi Arabia’s forgiveness norms did not stop the judge from sentencing the Khashoggi killers to two decades in prison. Likewise, in Iran, “the victim’s family have a say only in the act of execution, not any jail sentence.” But until recently, Pakistan gave forgiveness a more robust role, letting it foreclose all criminal punishment whatsoever. This became especially controversial in the context of “honor killings,” wherein women are murdered by family members for violating sexual and romantic norms. Because their families were both the perpetrators and the survivors, killers were regularly forgiven and set free. Pakistan amended its laws in 2016 so that forgiveness now only prevents execution, while murderers receive at least mandatory life sentences.
The issues presented by forgiveness under Sharia may seem strange. Indeed, the Khashoggi sentences were lambasted by a United Nations rapporteur who had been involved in investigating the case. She said they “carry no legal or moral legitimacy. They came at the end of a process which was neither fair, nor just, or transparent.” Mr. Khashoggi’s Turkish fiancée likewise protested that “no one has the right to pardon his killers.” Doubtless, her reaction raises a fair question as to who gets to be considered a survivor. And there are real reasons to doubt whether the forgiveness Mr. Khashoggi’s son gave was borne of genuine, religiously inspired mercy, as he claimed in the tweet announcing his decision, or of the political machinations of the powerful government authorities behind the killing.
But not all cases are so conflicted. Take the example of Iranian Abdolghani Hosseinzadeh and his wife, who lost their eighteen-year-old son to murder in 2007. Three days before the killer’s execution, the mother “saw [her] son in a dream telling her that [he was] in a good place, and for her not to retaliate.” So, once the killer was on the gallows, she walked up and slapped him in the face. Then, she and her husband removed the noose from his neck and embraced him. Or consider another Iranian, Ali Mohebbi. Watching his son’s seventeen-year-old murderer prepare to be hanged in 2000, Mr. Mohebbi decided, “If I forgave him maybe millions of people who would watch the news would learn about forgiveness – and that is the message of Islam . . . . I thought that first of all if this boy is dead, it will not bring back my son.” He spared the young man’s life.
These are humane sentiments held by survivors of different backgrounds throughout the world. The model of restorative justice, which focuses on healing everyone affected by a crime and prioritizing reconciliation alongside or even over punishment, has recently achieved prominence in Western thought. Murder victims’ families are increasingly active in campaigns against the death penalty. For instance, one of the legislative leaders in New Hampshire’s 2019 death penalty abolition had lost his father and brother-in-law in murders. The daughter of a Tennessee survivor pleaded unsuccessfully for the governor to spare a killer last year. In 2014, a victim’s parents and a Colorado district attorney even clashed when he tried to block them from asking the killer’s jury for clemency. (The controversy ended with a guilty plea in exchange for a life sentence.)
These developments touch on a much deeper issue in legal philosophy: To whom does criminal justice belong? In one sense, the Qur’anic framing of the issue as private retribution is historically very antiquated. It reflects the realities of a tribal society lacking any sort of modern state. Crime was simply that species of acts likely to trigger reprisals among clans, and reform meant only limiting retaliation, regulating it with some outside scrutiny of the facts, and urging victims to show forgiveness.
In early modern Europe, by contrast, criminal law was moved from being a private concern to an almost exclusively public one. It is true that until the 1800s in England, “[n]o public official was designated as a public prosecutor.” But by the time William Blackstone wrote in the late 1700s, he could distinguish torts from crimes under the simple headings of “Private Wrongs” and “Public Wrongs.” He defined crimes as “every infraction of the public right belonging to [the] community” and identified the king as their “proper prosecutor.” Far from public prosecution complementing or regulating private retribution, as in the Qur’an, Blackstone condemned reliance on “the impetuous dictates of avarice, ambition, and revenge.” This approach has become so entrenched in American jurisprudence that one scholar in the 1990s even argued that all private prosecution is unconstitutional.
There is much to be said for the modern Western approach. Criminal justice is an intensely public endeavor. Many crimes threaten the peace and order of the whole society. Indeed, at least one American jurisdiction actually requires indictments to allege that a crime was committed against a state’s “good order, peace, and dignity.” (A defense attorney used this in 2018 to win an acquittal for a private act of growing marijuana.) Surely the basic safety of every member of society is the concern of any developed government. (For more on tensions in the concept of civic responsibility in many Islamic countries, see Robert Bellah’s analysis of Islam and modernization, or my own comments on collective identities in Somalia.) For these reasons, prosecutors and law enforcement officials are often elected by a whole region, or appointed by a political authority responsible for the good of the society. No one wants to see a criminal case fall into the hands of those with particular biases regarding the victims, survivors, and accused.
The Western approach, based as it is on public reason, political accountability, and consistent community norms, helps avoid the purely private mentality that led to many Pakistani femicides being met with indifference. Islamic countries like Iran, Saudi Arabia, and Pakistan itself have recognized as much by curbing the role of private forgiveness and instituting systems of public criminal justice.
But this social learning should not be a one-way process. For all the pitfalls of excessive deference to survivors, Sharia also reflects a truth that American jurisprudence is only recently remembering. Justice may belong to everyone, but it does not belong to everyone in the same way. Survivors, being specially affected by crime, have special needs that can be overlooked when the government takes over every aspect of administering justice. (This recognition is one of the factors driving recent victims’ rights movements.) Sometimes, those needs include showing mercy. Strong punishments coming from an uninterested state might actually make it harder for victims to become whole again by showing mercy and working toward reconciliation.
In recent decades, the Taliban’s and Islamic State’s infliction of horrifying punishments brought many Americans to think of Sharia – especially its criminal law – as barbaric. But its merciful aspects, and the respect it gives to survivors who want to forgive, merit a more generous look than the jaundiced perspective that the Khashoggi case may unfortunately draw to it. ♦
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.