By Rudolph Peters
On May 16 jihadist insurgents of the Ansar al-Din group, who are occupying parts of Northern Mali and thought to be linked to al-Qaeda in the Maghreb, had stoned to death a couple for having had extra-conjugal sexual relations (zinā) and produced children. The condemned were buried in the sand to their necks and then stoned to death in public. This took place in the village of Taghlik close to the Algerian border. The report identifies the male victim as the son of Lt. Iyad ag Ghali, a high-ranking officer of the Ansar al-Din. Iyad ag Ghali’s son was instrumental for this sentence in order for his father to prove his commitment to Ansar al-Din.
This incident deserves comments from at least two angles: politics and law. I will not go deeply into politics and the struggle for power within the Ansar al-Din or the Tuareg movements. What is relevant is that Iyad ag Ghali is not just a high-ranking officer, but had been for a long time one of the leaders of the Tuareg rebellion (1990-1995) and the Tuareg movement. In 1996 a ceasefire was concluded with the Malian government and Ghali normalized his relations with the government. From 2005 to 2008 he was a Malian diplomat in Saudi Arabia, where he is thought to have been converted to Islamist persuasions. In 2012 he founded the Ansar al-Din organization in the North of Mali, with the objective of establishing an Islamic state in Mali. This created a rift in the Tuareg movement, in which the main organization, Mouvement National pour la Libération de l’Azawad (MNLA), is essentially secular. When the Ansar al-Din, together with the MLNLA conquered Timbuktu in 2012, Ghali was one of the commanders enthusiastically enforcing sharīʿa on its inhabitants. In early 2017 Iyad ag Ghali gave a pledge of loyalty (bay`a) to al-Qaeda leader al-Zawahiri. It is possible that Ghali’s position in the Ansar al-Din was undermined and that the sentence was part of a power play within the Ansar al-Din. However, I have no further information and any explanation from me would be speculation. The only thing that we can readily assume is that this sentence of stoning clearly also had a personal political motive.
This sentence, however, also illustrates the general sharīʿa policy of the Ansar al-Din. During the last few decades jihadist movements have succeeded in conquering inhabited regions, which required them to govern not as successors of previously functioning states, but as new polities. They legitimated their rule by pointing out that they were establishing a genuine Islamic state, fully enforcing sharīʿa law in all walks of life. Penal law, as well as the rules connected with jihad, are prominent in the legal systems introduced by these regimes. The Islamic State in Iraq and Syria is one of the most telling examples and also the best documented one. The Islamic State and their likes enforce what I would like to typify as “fossilized sharīʿa” in contrast to living sharīʿa. “Fossilized sharīʿa” has not developed by being applied in practice, but consists of chunks of legal doctrine dug up from the classical texts and selected because they encourage violent suppression of opposition and are most opposed to notions of human rights standards. Think of the rules of slavery, of the position of non-Muslims and, last but not least, penal law, and especially the hadd penalties of amputation and cruel forms of capital punishment.
Enforcing this type of sharīʿa has two dimensions: it can be used as a legitimation by pointing out that the state is enforcing sharīʿa as it was applied by the Salafs, the first generations of Muslims. But in addition it can be used as a legal tool of violent suppression of opposition. The main parts of the law used here are the law of warfare (such as the justification of attacking and killing Muslims, and the treatment of prisoners of war) and penal law, especially the law of hadd (sharīʿa-based crimes) crimes. Now the application of hadd law is juridically problematic: sentences of the harsh hadd penalties are difficult to pronounce because of the procedural restrictions. In pre-modern Muslim states, such as the Ottoman empire, harsh hadd punishments were only exceptionally imposed and in order to maintain law and order and to fight crime, the authorities would have recourse to siyasa law, which allowed the state to punish criminals without strict formalities and complicated procedures. Modern jihadist states might have used siyasa criminal law, but do not do so because this type of law is not, as hadd criminal law is, directly anchored in the Koran. Enforcing hadd criminal law is thought to better legitimate these jihadist states than applying siyasa law. However, imposing hadd penalties on a large scale, as the Islamic State and their likes do, can only be achieved by overriding the rules of adjective law, such as not recognizing pleas of shubha or relaxing the standards of proof.
How problematic it can be to sentence a person under sharīʿa penal law is illustrated by two cases that were tried, some fifteen years ago, in Northern Nigeria, where a sharīʿa penal code was introduced around 2000. Two women, Safiyyatu Hussaini and Amina Lawal, were charged, on the strength of having given birth out of wedlock, with having had unlawful sex. Under Maliki law, this may be considered as full evidence for having committed zinā. The women were both sentenced to be stoned to death in the lower courts, but on appeal they were acquitted. The appellate courts quashed the sentences of the lower courts on a host of grounds. Among these were purely procedural grounds, including claims that the accused were not given a lawful hearing, and the courts did not inform them of the implications of their statements. Additionally, there were grounds based on material law, such as on the strength of having been married before, the child might be attributed to her previous husband according to the Maliki sleeping fetus doctrine: the sleeping fetus could be born five years after impregnation. Second of these material grounds was that the courts did not examine whether the accused were muhsana, i.e. engaging in lawful sex in a lawful marriage. This question is important because persons who have committed unlawful sex but are not muhsan can only be sentenced to hundred lashes, whereas a muhsan can be sentenced to death by stoning.
It is possible that the trial was carried out by an ad hoc group of Ansar al-Din followers, with little knowledge in how to apply sharīʿa. For this reason there are many doubts about the sharīʿa lawfulness of this sentence. The first is related to proof: with regard to the woman unlawful sexual intercourse was established by her having given birth. However, if the woman had been legally married before and was divorced, the child could be a sleeping fetus, begotten by her previous husband but delivered five years later. This would be a shubha preventing the sentence of stoning. But if she had not been married before, she was not a muhsana, in which case her penalty would not be death but a hundred lashes.
With regard to the man similar questions must be answered. Was he a muhsan or not? And how was it established that he had committed unlawful intercourse? The birth of a child is no proof against him: a fourfold confession or the testimony of four Muslim, male eyewitnesses of good reputation are required. Moreover, the couple might have or thought to have concluded some type of a marriage contract. This does not establish a valid Islamic marriage, but would be regarded as shubha, averting the hadd penalty.
The way Ansar al-Din in Mali and similar jihadist organizations enforce sharīʿa criminal law seems to concentrate mainly on imposing cruel hadd penalties, thereby disregarding the procedural and other legal restrictions limiting the application of hadd sentences. The motivation for these regimes is twofold: to create a violent and hard tool of oppression and a simple way of Islamic legitimation.
 Codilla III, Felix N., “Unmarried, Co-Habitating Couple Killed By Stoning for Violating Islamic Law,” https://www.christianpost.com/news/unmarried-co-habitating-couple-killed-by-stoning-for-violating-islamic-law-184187/ (accessed 1 Aug 2017).
 See Rudolph Peters, “The re-islamization of criminal law in Northern Nigeria: the Safiyyatu Husssaini case,” in Dispensing justice in Islamic courts: qadis, procedures and evidence, eds. Muhammad Khalid Masud, Rudolph Peters and David S. Powers (Leiden: Brill, 2006), 219-243; Philip Ostien, Sharīʿa Implementation in Northern Nigeria 1999-2006: A Sourcebook. 5 vols (Ibadan, Nigeria: Spectrum Books, 2007), Vol. 5: Two famous cases.