Judging the Divine Law of Islam

When the body of nurse Yvonne Gilford was found Dec. 11, fear rippled through the walled compounds where foreigners live in Saudi Arabia. The 55-year-old Australian had suffered a grisly death. She had been stabbed four times, beaten with a hammer and suffocated in her bed.

In a country that by world standards is almost crime-free, some wondered if a maniac was on the loose. Or was the murder politically motivated, akin to the bombing of the U.S. military housing complex in nearby Khobar that killed 19 Americans in June?

Few were prepared for the news that Saudi investigators announced 13 days later. They accused two British nurses, saying the pair had confessed after being photographed on a spending spree with the victim’s credit cards.

Moreover, the two female colleagues of Gilford would be tried in Saudi Arabia’s Islamic courts and could face the punishment routinely meted out to convicted murderers, drug smugglers and other serious offenders: death by public beheading.

Now, Saudi Arabian officials sense that, rather than the suspect nurses, it is their system of law that will be on trial. That system--Sharia, God’s divine law--is core to the Islamic faith, which has more than 1 billion adherents around the world.

Radical groups from Afghanistan to Egypt to Algeria demand the Sharia, waging violent campaigns with the stated aim of reforming decadent societies by imposing Islamic law. Saudi Arabia, Iran and Sudan already use the Sharia as the pillar of their legal systems.

Yet Western perceptions remain largely limited to lurid accounts of its punishments: the beheadings, amputations and stonings. It conjures images of hell-hole jails, cruel torture, barbaric retribution--all in all, a medieval system unfit for modern society.

It is not easy to get any other picture. Many Muslims see no need to explain or justify what to them is so self-evidently correct. Few Western scholars and writers have tried, and fewer have succeeded, in crossing the many divides--cultural, religious, linguistic, philosophical--that must be bridged in order to understand Islamic law.

But learned Muslim jurists, people who have given their lives to understanding, practicing and applying the Sharia, say that many humane and lofty aspects of the system are discounted or ignored in the Western view.

“Islamic Sharia is a system of justice, mercy and tolerance,” insists Sheik Muhammad Jubair, for decades one of Saudi Arabia’s highest judges and now speaker of the Consultative Council, the appointed parliament. “We have nothing to hide and nothing for which to feel ashamed.”

“What the Saudis might consider obedience to God’s direct command, the Westerner often calls arbitrary, capricious and cruel,” agrees Frank Vogel, an expert on the Saudi legal system who directs the Islamic Legal Studies Program at Harvard Law School. “Talk about a dire conflict of perceptions.”

The upcoming trial in Dhahran of nurses Lucille McLauchlan and Deborah Kim Parry, and the furor their case has generated in the British media, provide an apt example--”a lovely case of cultural misunderstanding,” Vogel says.

Although Sharia is based on the Koran--the sacred book of Islam--only about 500 of the 6,236 Koran verses have instructions that could be taken as moral or legal injunctions. But over the past 1,300 years, a complex body of law and custom has developed from those verses and from other roots, particularly the sayings and deeds of the prophet Muhammad.

Especially here, in the birthplace of Islam and the heartland of Arabian history, culture and language, Muslims take enormous pride in the resultant legal system.

Besides their belief that the Sharia was revealed by God to his prophet Muhammad as a guide for all time--making it superior to mere man-made laws--Saudis say it has proved to be fair and effective in practice, giving them social harmony and one of the lowest crime rates anywhere.

Judges are, by definition, religious scholars. In Saudi Arabia, religious leaders do not just talk about morality in the law, they apply it daily, as they think that God would want.

Human Rights Watch, a prominent international watchdog, thinks they err.

“Throughout 1996, the conduct of trials fell far short of international norms,” the group says in a new annual report. “Saudi law did not guarantee . . . the right to counsel, made no provision for notifying families of arrests and imposed no maximum time limit on . . . pretrial detention.

“There were reports that judges often accepted uncorroborated, forced confessions as the sole basis for conviction.”

But what makes most strangers to Sharia shudder are the beheadings.

In Riyadh, the Saudi capital, executions are carried out on a broad brick-and-marble plaza, bordered by the main mosque and shops, fringed with palm trees and benches and kept meticulously clean. Foreigners have dubbed it Chop-Chop Square.

In the harsh light, its most notable feature is a small metal grate over a drain in the very center. It is used to catch the blood.

A thousand people, mostly men, gathered around the grate one day last spring to witness a double execution. Two policemen led in the male prisoner, dressed in a white cotton robe, and two female officers led the condemned woman, her head and body covered with a black abaya, the traditional Islamic cloak. Both were manacled behind their backs. They moved slowly, as if drugged, and were moaning and grunting softly.

The executioner, a large man also robed in white, dealt with the man first. He was made to kneel down on the ground, his head over the grate. The executioner drew back the headdress from the man’s neck, exposing the skin.

Then he poked the man’s spine to force him to arch his back and with one swift motion swung the weighty 4-foot-long, crescent-shaped sword, severing the head. The body toppled forward.

The woman was brought forward, and the process was repeated. The mosque loudspeaker briefly described their crimes: He had killed his friend; she had killed her husband. The bodies were taken away in an ambulance. A worker hosed the blood into the drain. The crowd, witnesses in a circle of respectful silence, dispersed.

In all, the beheadings lasted no more than 15 minutes. Saudis regard them as simply a form of capital punishment that is quick and humane.

Saudi Arabia, with 18 million people, executed 71 in 1996. The United States, with 260 million, executed 45. Sharia says punishments should be public, as a lesson to the community.

One Westerner who believes that she very nearly ended up in Chop-Chop Square is Irishwoman Monica Hall. Having seen the Sharia applied in her case 10 years ago, she is terrified for the two nurses now accused.

The operating-room nurse from Dublin, like the nurses now arrested, is among tens of thousands of Western professionals who since the 1970s have combined lucrative jobs with foreign adventure by living in oil-rich Saudi Arabia.

Two years after Hall’s arrival, the supervisor who had hired her, Helen Feeney, was killed at their hospital in Taif. Weeks later, on July 12, 1986, Hall and her then-husband, Peter, were accused of the crime. So began what she recalls as 11 days of “intense psychological torture.”

“I was a woman alone, at the hands of ruthless experts,” she recounts, still bitter. She was deprived of sleep, given confusing information, interrogated at night and, she suspects, given drugged coffee to drink. “They kept telling me that Peter had confessed--why couldn’t I? They kept insisting I was lying.”

Finally, she broke down and signed a confession. She believed that, at that moment, she was signing her death warrant. “I was beyond caring,” she says. “Anything to stop the ruthless battery.”

Feeney’s family ultimately did not make a request for capital punishment--a requirement for beheading under Sharia--and Hall and her husband went to prison instead. Three years later, they were freed by the king during an amnesty, on the condition that they write letters of apology. “It has taken me 6 3/4 years to draw my breath fully,” she now says.

Hall believes that Saudi prosecutors have once more pressured two innocent people into confessing just to close a case. “Western nurses do not go to Saudi Arabia in order to kill other ‘expat’ nurses,” she says dryly.

Although foreigners from Asia and Africa have been executed for crimes in Saudi Arabia, officials recall no case of a European or American being put to death. Now that McLauchlan and Parry, who are in custody and could not be interviewed, have retracted their confessions with the aid of a Saudi lawyer, supporters are more hopeful that they will be found innocent.

Although many of the underlying principles are the same, such as the presumption of innocence and the requirement of proof beyond a reasonable doubt, much in the Islamic system seems foreign to those accustomed to Western justice.

At the Riyadh Sharia court, in the center of a capital transformed from mud adobe to glistening modernistic skyscrapers in 40 years, courtrooms are the size of large offices. Participants sit an arm’s length from the judge. Questions and answers flow, as at a conference rather than a formal trial.

Muslim participants are reminded that they are doing God’s work to reach the truth. Motivated by religion, individuals often freely confess, receiving with their punishments reconciliation with God and society, participants say.

The character of the judge dominates. “This is often a very impressive individual, someone who you would be afraid to lie to, or misbehave in front of,” says Vogel, one of the few Westerners who have been permitted to observe Sharia in practice.

Defendants are entitled to have “agents” speak for them--traditionally family members, although increasingly now lawyers. The spirit of the Sharia discourages attorneys, however, because judges prefer to deal directly with the accused.

Contrary to the image, punishments often are mild by Western standards. Short prison sentences or a light physical punishment are the norm in most criminal cases.

There are, however, offenses for which the Koran and Sunna--a supplement to the Koran--lay down specific penalties. They include theft, adultery and fornication, wine drinking, highway banditry, apostasy from the faith and rebellion.

Punishments dictated by the Koran--stoning for a married adulterer, flogging for an adulterer’s unmarried sexual partner, amputation of a hand for a thief--strike many in the West as repugnant. But they are rarely carried out because of the narrow definitions of the crimes and the difficulty under Sharia rules of proving them.

For example, one could not suffer amputation for shoplifting. It is not considered theft, since the goods were not locked up. Nor would one face the punishment if one stole in order to eat.

Circumstantial evidence carries little weight toward conviction. Finding stolen goods on a person, for example, is not enough--there must be witnesses. For an adultery conviction, there must be four men who will testify that they saw the sexual act.

“The picture you get from the outside is that everybody’s head is being chopped off, everybody’s hand is being amputated,” says Vogel. In Saudi Arabia, during the 11 years that he studied the country, there were about four amputations a year and one case of stoning every three years.

There are few official crime statistics released in Saudi Arabia, but one comparative study from the 1980s that Vogel cites suggested that its level of crime on a per-capita basis is about 1/30th that in Ohio, a typical U.S. state. Anecdotal evidence indicates a crime rate that, by Western standards, is infinitesimal.

If the serious standard of proof for the crimes mentioned in the Koran is not met, people are often convicted on a lesser standard of tazir, or chastisement. Less evidence is needed, but the punishments are correspondingly lighter.

Two kinds of crime account for the bulk of executions in Saudi Arabia. The first is murder. The other is drug smuggling. It was made a capital offense in 1987, under a broad Sharia principle that the ruler may initiate laws to protect society from great dangers.

Any conviction that could result in execution or amputation must be tried by a three-judge panel, and appeal is mandatory, to the regular five-member Saudi appellate court and then to the seven-member Supreme Judicial Council. Then the Saudi king must personally review the case.

For murder, executions occur if all heirs demand it. If one dissents, the execution is canceled. Judges often encourage the bereaved families to be merciful and accept blood money--traditionally the price of 100 camels--from the offender instead. An execution may be postponed for years until a victim’s heirs reach adulthood, when they can decide whether their parent’s killer should live or die. Murderers spared by the family are normally jailed by the state for five years.

One striking aspect of Islamic justice in practice is the way judges anguish over their decisions, fearful lest they be judged in the next life by those they judged in this life. They may be thinking of a saying in Islam: “For every three judges, two will go to the Fire and only one to Paradise.”

Still, there are persistent reports by human rights organizations that in Saudi Arabia, confessions are forced from prisoners.

Because Islamic courts historically have not trusted physical evidence, Vogel suggests, there is a strong pressure to get confessions.

Three judges interviewed for this article, however, flatly denied that any prisoners are ever convicted for something said under torture. They emphasized that it was their role to ensure that each confession is voluntary.

There are some Saudis less sanguine about the system. One academic from Riyadh, who has spent long periods abroad, said protections for the accused are scant.

“In this country, there are no lawyers. If I am arrested, the only people I’ll see are my jailer and my judge, and God forbid, my executioner.”

Another professional, also from the capital, said he believes that the rights of the accused built into Sharia often are ignored in practice when the case is political, especially as the Saudi kingdom reacts to internal dissent.

In this respect, Sharia is not unlike other legal systems. Where it is implemented on the run--say in an unfolding revolution, or among the Taliban militia in Afghanistan, or as a basis for exercising power, not justice--it is open to abuse. Even in Saudi Arabia, where Sharia is long-standing and refined, its implementation may fall short of what the West’s watchdogs, and many Saudis, would wish. Could one expect differently? Even divine law is carried out by mortals.