* How do we leave traces of ourselves everywhere we touch with hardly visible fingerprints?

* Methods used for fingerprint identification…

* The signature we always carry with us: Our fingerprints…

A little girl in the US was kidnapped in 1993. Finding an opportune moment to escape, the child fled to a nearby neighborhood. Based on the girl’s statement, the police arrested a suspect, who told them about the other perpetrators and the car used for the abduction.

Realizing that there was missing evidence, the defendants asked for evidence of the child’s fingerprints from the car, as she had testified that she was in the automobile for hours. Strangely enough, despite scanning the entire vehicle, the detectives only found the fingerprints of the defendants. The joy of the latter made the child and her parents afraid that they would be unable to prove her presence in the car.

Leaving the rest of the story to the end, we will now focus on the fingerprint screening process, which sheds light on the frustration of the criminal detectives who were unable to find the child’s fingerprints in the car.

Innately found in the DNA structure of each and every individual, fingerprints are actually formed in the early embryonic stage with the infinite knowledge and might of the Creator. No two fingerprints have ever been found to be identical in every detail, despite billions of comparisons. This miracle alludes to the omnipotence and omniscience of God. Fingerprints are never exactly alike, but unique for each individual, except identical twins. To achieve this requires the infinite knowledge of the One Who distinguishes the fingerprints of all the living and dead, as well as those who are to be born. The fingerprints of identical twins are identical because the same egg has been inseminated by the same sperm and has then split into two, and thus the two babies have exactly the same DNA structure.

As is well-known, fingerprint identification stands head and shoulders above all other human identification procedures as the most reliable means of identifying individuals worldwide. The Qur’an speaks of the revival of every human being in all their particularities down to their fingertips, thus drawing our attention to the uniqueness and distinctive features of the fingertips of each and every individual. Only if one perceives the Qur’an as being the Word of God can they avoid the great difficulty inherent in attempting to explain how the Qur’an is able to refer to this issue; at the time of the revelation, 14 centuries ago, this matter was not known, rather, it only became known in modern times:

Does the human think that We will never assemble his bones (to resurrect him)? Yes indeed, We are able to make complete his very fingertips. (Qiyamah 75:3-4)

Fingerprints are friction whirl formations on the skin of the fingertips that are perpendicular, circular, oval, or made up of patterns parallel to each other. To make impressions of the fingerprints, the fingertips are pressed first on an ink pad, and then on a card; the ink impressions on the card retain the shape of the whirls. The fingerprints collected from items of evidence from a crime are matched (or not) with the suspect’s fingerprints. The fingerprint database archived in this way is the most reliable way to conduct criminal record checks when needed.

But how are the impressions of the fingerprints retained on the objects that have been touched? Fingerprints are deposited by the natural secretions of the eccrine glands which are present in the skin of the fingertips. When we touch an object, natural sweat secretions are discharged from the glands at the fingertips and these secretions remain on the surface in the shape of the whirls.

Fingerprints of children

How is it, then, that the fingerprint impressions of the child in the story could not be found at the crime scene? 99% of the secretion produced from the glands is water. The remaining 1% is of fatty acids, ethers, amino acids, and salts. It has been found, in contrast to the fingerprints of adults, which include long carbon chains linked by ethers, that the fingerprints of children have mostly non-etherized, short chains of fatty acids. These short chains of fatty acids on the fingertips of children are volatile. Thus, the fingerprints of children evaporate in 24 hours, while those of adults remain for longer periods. For this reason, fingerprint detection should be done as soon as possible in crime scenes in which children are involved.

We normally cannot see the impression left by the whirls. Criminal detectives, however, use electronic, chemical, and physical processing techniques that permit the visualization of invisible or hidden latent print residue from natural secretions of the eccrine glands on the fingertips. They then take the photographs of the impression to compare with fingerprint impressions of suspects and those on the database.

Amazingly enough, something as simple as sweat-which we mistakenly think is composed of pure water-can be used to solve serious issues as needed, because our fingerprints, which are hardly visible, leave clear signs of our presence everywhere we touch. It is not difficult to understand, then, that nothing has been created to vanish for ever; just as we leave our fingerprints everywhere, at every moment we also leave our own images in different forms of action in the minds of others and they are recorded on the heavenly plates. By the way, if you think that the suspects in the child abduction case were able to get away with it, you are wrong! Though her fingerprints could not be found in the car, the relief of the suspects did not last long. A small fiber from her clothing was found in the car, thus proving them to be guilty.

While it is true that crimes committed against an individual usually affect society as well, in many cases it is the victims whose rights are directly violated (Udeh 1990, p.l94). Since they suffer directly from the crime, they should have a role in the process of ‘punishment’ or ‘pardoning’, a process which concerns them, both physically and emotionally, at least as much as it concerns society. In modern Western legal systems, consideration of victims’ rights is a separate procedure from the punishment process. But a legal system that aims to compensate victims needs to consider ‘emotional’ as well as ‘material’ suffering.

Involvement of the victims in the punishment process should not be regarded simply as a means of giving them access to retaliation or retribution; it is also a highly effective means of emotional release for victims. Whatever punishment is decreed by the court, if the victims are not consulted, they may feel ‘let down’ by the system. Involving them can help restore credibility to the legal system, as well as having, in certain cultures, an extra deterrent affect on potential criminals.

2. Offender and victim

The concept of victim involvement is well established in the Islamic system, but is relatively new in the West and has not yet been systematically worked out. Until the 1990s, Western legal systems were primarily concerned with the rights of suspects and offenders. Since then, attention has increasingly been drawn to direct involvement of victims. A revised and strengthened Victim’s Charter was published in 1996 along with Guidance to Services from the Association of Chief Officers of Probation (ACOP, 1996). It envisages consultation of the victims before decisions are made about release conditions of offenders serving long sentences (see Nettleton et al., 1976, p.3). Some argued that providing information to victims about release plans for offenders could open the latter to (possibly violent) reprisal, (Kosh and Williams 1995, p.15) and in any case, had the offender not been punished already? On the victims’ side, Nettleton et al. (1997a) noted that: ‘… it was not uncommon for victims of serious offences to move house, even moving to a completely new area, on hearing that an offender was likely to be allowed to resettle in their mutual home area.’ In such a case the law effectively allows an offender to once more offend against the same victim.

3. Crimes committed against individuals and society

Every crime which harms an individual may also harm the society. Depending on the level of injury to the individual or society, the punishment in the Islamic legal system is classified under three broad categories as hadd, ta’zir and qisas or diyya.

3. 1. Hadd, (‘limit’, ‘restrictive ordinance’) refers to the five offences of zina (‘fornication’ or ‘adultery’), ‘false accusation, ‘wine-drinking’, ‘theft’ and ‘highway robbery’ for which fixed penalties are laid down in the Shari‘a. Such acts are essentially regarded as crimes against God (Heyd, 1973, p.340). The punishment prescribed by the Law cannot be reduced or increased even in response to the promptings of compassion (Siddiqi 1979, p.8).

3. 2. Ta’zir is a discretionary punishment aimed at deterrence and, where that is appropriate, reform of the offender.

3. 3. Qisas is a divine ordinance restricting retribution to parity with the crime (life for life, injury for injury, etc.). Right of retribution may be waived in favour of blood-money or diyya (Heyd 1973, p.339); further, even this compensation may be waived by the victim in favour of outright forgiveness.. Yusuf Ali (1989, p.71) states that the translation ‘retaliation’ for qisas is incorrect. Retaliation carries the sense of returning evil for evil, which is what happened in the blood-feuds of the pre-Islamic period: the crime and its consequences were kept going by the feuds, not resolved and put an end to. Qisas means that one who has committed a particular crime may be lawfully punished in the same way and to the same degree as his crime, unless the victim (or representative of the victim) accepts compensation, or chooses outright forgiveness. Whether retribution or forgiveness is chosen, the aim is to close the circle on the crime, and not to let it persist.

4. The involvement of the victim in the punishment process

Of the three choices open to the victim, retribution, compensation, outright forgiveness, the Qur’an commends the Muslims to agree a settlement or to forgive the offender. The injured party (plaintiff or victim’s next of kin) is permitted to pardon the culprit altogether or to make a ‘settlement’ (sulh) with him (Heyd 1973, p.339), but retribution remains a legal right.

Western discussions of qisas translate it as retaliation, which connotes vindictiveness or revenge rather than redress of a wrong by equalizing the harm (Bassiouni 1982, p.203).

The Qur’an in this matter continues the tradition of the Judaeo-Christian teachings concerning law of eye for an eye, tooth for a tooth. As we noted, this law forbids the victim or victim’s family to demand more in punishment than was suffered. This practice proved its effectiveness in preserving social order in the early period of Islam when there was no organized system of criminal justice and penalties were carried out by the victim or victim’s family rather than by institutions and their official personnel (Bassiouni 1982, p.204).

One of the aims of qisas is to limit the consequences of certain categories of wrongdoing. Furthermore, some provisions in the Qur’an indicate that the retributive punishment must be inflicted in the manner least likely to aggravate the situation. The principle satisfies the general human need to have justice done on the perpetrator of crime while precluding unnecessary harm. That general human need can also be satisfied by the state or community acting for and on behalf of the victim, as most contemporary systems of criminal justice aspire to do.

The alternative penalty called diyya (or compensation) to be paid by the wrong-doer or his family to the victim or his/her family. Diyya is payable in certain cases of homicide and bodily harm upon a scale proportionate to the degree of incapacity or injury caused (Heyd, 1973: 338). The principle of diyya finds analogous expression in the contemporary science of victimology, whereby compensation emphasizes decriminalization of the act and compensation of the victim as an alternative to the traditional punishment of incarceration. As

between qisas and diyya, the Qur’an clearly commends the latter and forgiveness (2.178). The preference illustrates the bond of continuity between temporal law and religion since the forgiver will be rewarded in heaven, which, for a Muslim, is a much greater reward than any other. Thus, the combination of diyya and forgiveness produces a powerful material and spiritual inducement to forgo retribution (Bassiouni 1982, p.205). When the victim has the right and the choice to demand punishment or pardon the offender, in many cases, the victim chooses to forgive. One of the reasons behind this preference is that the victim believes that he will be rewarded by the God for his forgiveness.

Finally, critics of Islam wrongly imagine that punishments must be inflicted every day and on a mass scale. They also fancy that Islamic societies daily witness flogging, hand-cutting and stoning to death. The fact is that such deterrent punishments have been executed very rarely. For example, the punishment for theft was carried out only six times over a period of four hundred years-clear proof that such punishment was primarily meant to prevent crime (Siddiqi 1979, p.40).

5. The effects of the involvement of the victim

The systematic involvement of the victim in the punishment process is unique to Islam. It makes two important contributions in the criminal justice field. Firstly, involvement of the victim appeases the victim who otherwise feels shunned or ignored by the legal system. It is the victim who suffers from the crime first, and therefore must have a say in the punishment or pardoning of the offender.

Secondly, the involvement of the victim in the punishment process may also have a deterrent effect on likely offenders. Some offenders may be happy to commit certain acts and face the legal punishment which sometimes, for them, may be a very short imprisonment. But if they believe that their victim(s) might have a say in the punishment which they face, this may deter them. We may also add, here, the spiritual and moral force of forgiveness, if that option is chosen by the victim or victim’s party, in inwardly reforming the offender through practical demonstration of unselfishness.

6. Forgiveness as an option

There are many verses in the New Testament which urge, if not quite require, the victim to forgive the offender (Matthew 18. 21-35; Acts 13. 26- 39; Ephesians 4.32-32; Luke 6.27-31): ‘But I tell you who hear me: Love your enemies, do good to those who hate you, bless those who curse you, pray for those who ill-treat you. If someone strikes you on one cheek, turn him the other also. If someone takes your cloak, do not stop him taking your tunic’ (Luke 6. 27-29).

By contrast, the Qur’an commends but does not require the victim to forgive the aggressor: ‘O you who believe! The law of equality is prescribed to you in cases of murder; the free for the free, the slave for the slave, the women for the women, but if a remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude. This is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be in grave chastisement.’ (2.178)

The option to forgive is a right that belongs to the victim, not to the court. Most legal systems, if not all, do countenance, for particular reasons and in different ways, a reduction or even suspension of punishment. My argument, based upon the Qur’an, is that, just as victims may not demand a punishment greater than is prescribed by law, so too the court may not deny their right to either reduce the punishment prescribed or forgive the crime outright.

The New Testament, as we saw, requires Christians to forgive; no other option is sanctioned by the religion-not retribution, nor compensation-only forgiveness. In a famous text the ancient lex talionis is almost explicitly abrogated: ‘You have heard that it was said, “An eye for an eye and tooth for a tooth.” But now I tell you: do not take revenge on someone who wrongs you. If anyone slaps you on the right cheek, let him slap your left cheek too. And if someone takes you to court to sue for your shirt let him have your coat as well.’ (New Testament, 1976, p.14).

Is this a sustainable way for society to deal with crime, or to restore the moral and emotional order which crime violates? Legal punishment has its root in the natural impulse to revenge a wrong suffered. The impulse is gratified through retaliation by or on behalf of the victim. Later, this retaliation is taken on by the state on behalf of society in general and the victim in particular. Indeed, it has been argued that the state’s assumption of the function of revenge is what constituted the beginning of criminal law (Dakkak 1994:88).

Requiring the victim to forgive the aggressor outright without the option of a measured, legally defined, retribution, goes against human nature. It denies a vital need, individual and collective, for redress which has a deterrent function as well as a role in restoring a violated moral and emotional equilibrium. In sum, the human need for redress should not be left out any more than the human desire to forgive should be left out.

Conclusion

Modern Western legal systems are adapted to a philosophy that regards the individual’s life in this world as the be-all and end-all. Very often criminals are treated very leniently because, it is argued, they are victims of circumstances, psychological complexes, nervous disorders, beyond their control. This attitude is contrary to natural justice insofar as it denies to the victims of crime their need to forgive if they choose and are able, or to agree to a compensatory settlement, or to demand the prescribed punishment. Giving the victims a say in the punishment process, according to the Islamic pattern described above, returns to victims their rights and duties in a matter that directly concerns them, and concerns them most. It constitutes a major contribution to the field of victimology and is, characteristically of Islam, a supremely well-balanced approach. It is high time Western legal philosophy and procedures took note of it and learnt from it.

References

• A. John Simmons, Marshall Cohen, Joshua Cohen, Charles R. Beitz (eds) (1995) Punishment: A Philosophy and Public Affairs Reader, Princeton University Press, New Jersey.
• Abdul Qader Oudah Shaheed (1987) Criminal Law of Islam, vol.1, International Islamic Publishers, Karachi.
• Abdulkadir Qdeh (1990) Mukayeseli Islam Hukuku ve Beseri Hukuk, Rehber Yayinlari, Ankara.
• Abdullah Yusuf Ali (1989) The Holy Qur’an: Text, Translation and Commentary, Amana Corporation, Maryland.
• Association of Chief Officers of Probation (1996) Probation Services and Victims of Crime, ACOP, Wakefield.
• Hilary Nettleton, Sandra Walklate & Brian Williams (1997a) Probation Training with the
• Victim in Mind: Partnership, Values and Organizations, Keele University Press, Keele.
• Hilary Nettleton, Sandra Walklate & Brian Williams (1997b) ‘Three models of probation
• involvement with victims of crime’, paper presented to the British Criminology Conference, Queen’s University of Belfast, 15-18 July 1997.
• Kosh, M. and Wiliams, B. (1995) The Probation Service and Victims of Crime: A Pilot Study, Keele University Press, Keele.
• M. Chertif Bassiouni, (ed.) (1982) The Islamic Criminal Justice System, Oceana Publications, Inc., New York.
• M. Shakry El-Dakkak (1994) Repentance as a Defence: Comparative Study under Islamic
• Law, Common Law and Continental Law, A. S. Noordeen, Kuala Lumpur.
• New Testament (1976) Good News Edition, The Bible Society Collins/Fount, Swindon.
• Uriel Heyd (1979) Studies in Old Ottoman Criminal Law, (ed. by V. L. Menage), Clarendon Press, Oxford.

My aim here is to describe the legal instruments under international laws and conventions, to see how far they do secure protection of individuals’ rights, and to compare them with corresponding Islamic notions which have been around for 14 centuries. I will focus mainly on the rights and protection available in Europe. Finally, I will compare the different perspectives of an Islamic approach and of modern international law on protecting individuals’ rights from abuse’ by police authorities and agencies. Some of the legal instruments mentioned are non-binding in character -they are nonetheless relevant in establishing the perspective of modern international law.

The Declaration on the Police affirms the necessity of rules of conduct for the police (Preamble para. 2) and condemns any police officers who have violated human rights as unfit to be police officers (Preamble para. 3). The commentary accompanying Article 2 of The Code of Conduct for Law Enforcement Officials (adopted by the United Nations General Assembly in 1979) clarifies the phrase ‘human rights’ as meaning those rights protected by national and international law. Article 3 provides that: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’ Article 5 prohibits the use of torture or other cruel, inhuman or degrading treatment. Another instrument, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the 7th Congress on the Prevention of Crime and the Treatment of Offenders) recognizes that ‘law enforcement officials’ must include all officials, whether appointed or elected, who exercise police powers (specially powers of arrest and detention), and regardless of whether a country is under civil or military rule. It is obvious from all of these declarations that effective limitations must be placed on arbitrary, lawless behaviour by the police, and that appropriate rules and training procedures be adopted to ensure that police behave professionally and protect individual rights and liberties. They are more likely to do so if the police are themselves well-versed in those basic rights and liberties.

The European Convention on Human Rights (ECHR) seeks to balance individual rights and the public interest. In their case law, the Commission and the Court have sought to define the public interest and indicate the limits which authorities such as the police should not transgress even when obliged to restrict the individual’s rights and liberties. ECHR Article 2 addresses the question of what circumstances justify the use of force, and how much, by law enforcement officials.

In the Stewart case, the Commission stated that the principle that ‘everyone’s right to life shall be protected by law’ obliges governments not merely to refrain from taking life intentionally but also to safeguard life. The Commission further stated that ‘the use of force must be shown to have been absolutely necessary’ and to be ‘reasonable’ in the circumstances. But what is ‘reasonable’? The Commission, though avoiding any statement on the meaning of ‘reasonable’ force in the Stewart case, made it clear that the standard is to be rigorous: an assessment must be made as to whether the interference with the right is proportionate to the legitimate aim pursued.

The Camargo and De Guerrero case is a clear cut instance of disproportionate force. The case was decided under the International Covenant on Civil and Political Rights (ICCPR) by the Human Rights Committee. The Committee found no evidence that the action of the police was necessary in their own defence or that of others, nor that it was necessary in order to effect the arrest or prevent the escape of the persons concerned.

The doctrine of necessity (which can be likened to the concept of the ‘public interest’ in Islamic Law) is of central importance. It sees the restriction of individuals liberties as exceptional, as only justifiable in the wider interest: ‘If the necessity of uncovering the truth and of doing justice requires limiting some or all of these rights, an exception will be recognized to the principle but only if it does not go beyond the dictates of necessity’ (Bassiouni, 1982, p.100). Restriction of individual liberties is checked by restrictions on the authority of those investigating a particular case. Islamic Law does not set out a specific list of rights that may be restricted if necessary nor how far and under what conditions. It delegates the decision to those in government who may decide according to their perception of the public interest (Bassiouni, 1982, p.100).

The United Nations Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment of 1984 is binding on the signatories to it. The Convention provides that the signatories shall outlaw torture in their internal laws and explicitly prohibits using ‘higher orders’ or ‘exceptional circumstances’ as excuses for acts of torture (Article 2(2) and 2(3)). The Convention has two new elements. Firstly, it provides for extradition of alleged torturers for trial in any of the signatory states. Secondly, it provides for an international investigation in the state concerned of reports of alleged torture by a Committee against Torture to be established under the Convention. However, the fact that the signatories may withdraw from this latter provision is a weakness.

The Convention requires prohibition of torture to be part of the training of all personnel involved in law enforcement, detention, interrogation or general handling of prisoners or detainees (Article 10(1)). It also provides that the signatories shall ensure legal measures for protection and compensation of torture victims. Individuals are further protected against other forms of cruel, inhuman or degrading treatment, as defined under the Convention.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is, by contrast, an instrument of a more preventive nature. It supplements the protection already given by Article 3 of the ECHR, by providing a non-judicial mechanism to investigate the treatment of persons deprived of their liberty in order to secure or reinforce the proper protection of their rights. A committee is established under the Convention for this purpose (Article 1).

Articles 3 and 5 of the ECHR impose particularly rigorous restrictions. Article 3 puts an absolute prohibition on torture, inhuman or degrading treatment or punishment by the police forces, terms defined in the judgement in the Ireland v UK case. Also, the conduct of the victim is not accepted as a justification for derogating from Article 3, however heinous it may be alleged to be.

Islamic Law explicitly outlaws torture, beating, and other cruel and inhumane treatment. The Prophet, upon him be peace, said: ‘God shall torture on the Day of Recompense those who inflict torture on people in this life’. The prohibition can be deduced also from practice of the early Caliphs and other Muslim rulers. Most jurists agree that no prisoner should be insulted, humiliated, beaten, tortured or chained, regardless of the offence. Islamic Law affirms that any confession obtained by coercion, torture or unlawful detention cannot be used to sustain a conviction. The Prophet set a practical example for treating the accused humanely and so enabling him to speak freely, when he addressed a defendant in these gentle words: ‘I do not think you stole. Did you?’

Article 5 of the ECHR, designed to protect individuals against arbitrary treatment, has generated a substantial body of case law. Anyone apprehending or arresting another person must respect due process of law. Not only compliance with national law, but also compliance with the principles of the Convention, as defined in the case law of the Commission and the Court, must be observed. Under Article 5(l), Suspicion must be reasonable to permit an arrest (Article 5(1)); the arrested persons must be told why they have been arrested (5(2)); detention should be of strictly fixed duration (5(3)) and, the detainee brought before a judge or other officer promptly and without having to ask. These provisions obviously have to do with police powers exercised under legal authority. In the Bozana case, the Court concluded that the expulsion of Bozana had turned into a ‘disguised extradition’ measure, designed to circumvent an appeal, and was therefore unlawful within the meaning of Article 5(1).

In the Brogan case, the Commission took the view that the struggle against terrorism may require some sacrifice of individual liberty for collective security ad so justify a flexible approach to the period of detention. The Court did not agree with this line of reasoning. It allowed that bringing to trial ‘promptly’ might be flexibly construed but insisted that there is a maximum period of detention compatible with the Convention. Tanca commented: ‘admitting longer police custody for those suspected of terrorist offences would alter the balance in favour of the police authorities, conferring on them more sweeping powers and the authority to decide when to use them’. The Convention also clearly requires that any officials with power to hold someone in remand must have judicial authority to do so. This position was further clarified in the Schiesser case in which the Court held that those officials must be independent of government and political parties.

Under Islamic Law, preventive detention is considered a serious restrictionof personal liberty and an exception to the general rule that no-one shall be deprived of their liberty except for the enforcement of a lawful sentence. Some Islamic jurists including Abu Yusuf opposed preventive detention on the grounds that neither the Prophet nor his immediate successors maintained a prison. One school of Islamic jurists, however, is of the opinion that it is permissible, under the proper conditions and with safeguards to balance the interests of the defendants and law enforcement authorities. (These jurists base their position on the teaching of the Prophet who detained a man accused of a crime.) But in any case, Islamic jurists were very cautious in its application and laid down very strict conditions as to duration, those authorized to impose detention and in what circumstances (Al-Saleh, 1982, pp.74-5).

Another police activity which infringes fundamental human rights is the search of private premises. Article 8 of the Convention guarantees the right to privacy of family life, of home and of correspondence. Any interference with this right must be ‘in accordance with the law’ and ‘necessary in a democratic society’. In an emergency, additional measures derogating from Article 8 may be taken, provided these are strictly required and respect the other procedural and substantive requirements of Article 15.

An individual’s home and private life are regarded as inviolable in Islamic Law, in accordance with the Qur’an (24.27-8) and the instruction of the Prophet, upon him be peace, in his ‘Farewell Sermon’. But that right is conditional on the absence of reasons requiring its restriction or suspension. It is significant that Islamic Law prohibits the search of person or home, and the invasion of privacy for the purpose of verifying the occurrence of a crime unless there is independent corroboration thereof. Any restriction of the right to privacy may not exceed the limits as determined by the purpose for which the exception is being permitted, namely to uncover the truth.

The Islamic perspective

The Qur’anic verse O mankind, worship your Lord who created you from a single soul … (4.1) is the ground rule which determines the Islamic perspective on this issue. It gives ‘Muslims a consciousness of their belonging to a broader, larger and all-encompassing universe, rather than to consider themselves a parochial subdivision of a greater part with which no intercourse is invited’. However, the development of international law remained totally alien to the Islamic Law of nations which preserved the ethical basis and moral source of its norms and statutes. In Europe, as a result of religious wars and distrust of the clergy, religion and morality were replaced by more pragmatic powers and necessities of state, though Christian concepts remained influential. The Treaty of Westphalia of 1648 was based on the concept of cuius regio, eius religio, which sealed the separation further. The Western view is that mechanical conformity to the pattern of conduct, prescribed by the law of the state or by international law, is sufficient to secure public order and universal peace. Western law aims ‘to proceed to influence from outside the inner condition of man and somehow it believes that institutions, social, economic, political etc., have a way of influencing the individual character… Islam, on the other hand, begins by inviting man to accept the paramountcy of the power of the Lord, his own servitude and bondage to the will of his Master who is the Sovereign Ruler of the universe; in the last resort it redeems him by prescribing upon him norms of behaviour by which he is to regulate his life’. The only real sanction for the moral law is, in the last resort, the authority of religion. Morality cannot be effective without religion. Morality tells us what is right and proper to do, while the law enforces those moral principles as have a direct bearing on the regulation of the individual vis A vis his fellow human beings. If the law is secular the enforcement of it can only be on the secular plane, whereas, if the law is religious, its enforcement takes note of deleterious consequences of criminal acts not only in this life but also in the life to come. International law may have come a considerable way towards urging the protection of individual human rights against abuse general. But the reality is that these instruments and mechanisms have not been successful on their own. Therefore, we tend to argue that any attempt or any solution on the protection of the individual against such abuses will only be successful, if there is a religious dimension to it. That is the function of the morality.

Sources

• AL-SALEH, Osman Abd-eI-Malek (1982) ‘The rights of the individual to personal security in Islam’. in Bassioni. M. C. The Islamic Criminal Justice System. Edited by Bassioni, M. C. London: Ocean. Publication, London.
• AWAD, A. M. (1982) ‘The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System.
• BASSIOUNI, M. C. (1982) ’The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System. Edited by Bassioni, M.C. London: Ocean. Publication, London.
• BASSIOUNI, M. C. (1982) ‘The Sources of Islamic Law and the Protection of Human Rights’ in The Islamic Criminal Justice System.
• BROHI, A. K. (1982) ‘The Nature of Islamic Law and the concept human rights’, in Human Rights in Islam, International Commission of Justice, Geneva, pp. 55-56.
• ICJ (1982) Human Rights in Islam, International Commission of Justice, Geneva.
• TANCA, A. (1990) “Human rights, terrorism and police custody: the Brogan case”, European Journal of International Law, 1, pp.269-77

Western sociologists and criminologists have tried to explain away the gloomy statistics by claiming that the level of crime is much as it was–only the level of reporting of crime has gone up because, among other things, people have telephones! Or they have suggested that because people own more things (more goods in the house, more cars, etc), there is more opportunity to commit crime. And some have tried, without any objective proof, to accuse particular ethnic groups, especially blacks, of criminal tendencies. In the public imagination blacks are associated with mugging, violent theft, burglary, and all other sorts of crime. The implication of this view is that, somehow, non-black Westerners are, by nature, disinclined to commit crime!

Whatever the explanation for it, the crime figures are evidence of a problem that has to be tackled. The two main options address the problem preventatively or correctively. Preventive measures consist of increased security–better doors and windows, more locks and bolts, alarms, video surveillance, and the like. Such measures failed to address the crime figures because the crime was displaced to easier targets–to, for example, the houses of the poor who could neither afford the increased security nor move to ‘safe’ areas of town. On the corrective side, the policy (usually associated with ‘conservatives’)– tougher policing tactics, harsher sentencing, short, sharp shock treatment for young offenders–didn’t work either. Tough, military-style policing in certain urban areas provoked riots, looting, racial conflict and massively expensive disorder, and brought the police into disrepute. Neither longer sentences nor short, sharp shook treatments affected rates of recidivism: 60% of criminals still went back to a life of crime. New prison buildings had to be built at great cost, adding to the already considerable cost of keeping criminals locked up–an average of 2000 per individual per month.

Unable to resolve the problem, governments hastily adopted the ‘nothing works’ principle and handed over some of its responsibilities to local councils. Long sentencing and tough policing had to be abolished due to unpopularity and costs. New sentencing measures, probation and community policing were implemented. However, crime figures have continued to rise. The dilemma remains: long sentences mean unsustainable costs of running overcrowded prison services with a 60% recidivism rate; short or no custodial sentences mean letting the criminals onto the streets albeit with reduced opportunities–the poor being vulnerable whereas the rich buy security and/or insurance. 

The approaches so far tried are bound to fail because they do not attempt to identify the causes of criminality in a way commensurate with the complexity of the problem. They do not identify all the individual factors which, acting together, generate crime. The responses to crime have been simplistic: if the criminals were unemployed, try to get them work; if they were persistent offenders, lock them up; if some people were particularly vulnerable to crime, counsel them to get better security. But neither crime nor criminals act for motives as simple as that. If a criminal mind really wants to commit crime, giving the person a job or money may not be dissuasive. Consider the case of Robert Maxwell who was immensely wealthy but nevertheless stole his own employees’ pensions, or of the political dictators who have robbed their own people of millions each year. If poverty were the sufficient reason for crime, there would not be crimes like tax evasion, bribery, fraud, racketeering, price fixing, etc., which are usually done by the well-off. In fact none of the economic classes (nor any of the ethnic groups) in a society can be singled out as more liable to commit crime.

Existing theories do not adequately address the key questions: why some people commit crime whereas others, in very similar situations, do not; why patterns of crime differ in similar areas; why in the same family one member becomes a criminal but the others do not, or the other way round; and, finally, why some individuals, households, or businesses are more likely to be victims than others.

Conventional approaches look for answers to these questions dissuasire separately but none has ever tried to address them all together. The discipline of criminology is in a severe crisis as regards any competence to explain the causes of the phenomena it offers to deal with. Sadly, since Western society finds it very difficult to question its fundamental structures, it is most unlikely that Western criminologists will be persuaded to ask the right questions in the right way. Success and happiness, in modern Western societies, are defined in terms of individual buying power. Material expectations are constantly being increased with the majority of people having very little opportunity to catch up with them. At the same time, the system lacks the authority of moral norms–normlesness is the norm, individuals being encouraged to define their own norms as they go along. Offenders often say, for example, that property is insured anyway so there is no harm in stealing it. Meanwhile, the sense of insecurity and isolation deepens: in some urban areas, people do not even feel safe in their own homes.

The motivations to crime are diverse and complex. Some individuals, ambitious for success, are nevertheless industrious and law-abiding, others seek illegal short-cuts. Some may find no legal route to change their economic condition and accept it, others do not. And still others may not be ambitious at all and simply conform to the circumstances in which they find themselves. The question, here, is what factors lead particular individuals into several different behavior patterns. The answer is bound to be no less complex than in the case of disease where the susceptibility of a particular individual has many possible causes, not one.

Many conventional crime theories focus on a single cause and generalize the explanation to crime as such. Biologists may identify genetic defects in some criminals then deduce that all criminals are genetically defective (e.g. Lombrosso). But if human actions were all determined by our genes we would be like robots–and we are not. Besides, the latest researches show that brain activities are not controlled by genes. Or psychologists may identify a psychological disturbance among some members of the criminal population and, instead of localizing the results, claim that all criminals must be psychologically disturbed (e.g. Freud). Or sociologists may observe that the children of broken or ‘problem’ families are over-represented amongst criminals and infer a causal connection between poor family background and crime.

As against these approaches, it is essential to acknowledge the multiplicity of causes of crime and to differentiate offender types. A more credible analysis of causes must try to explain differentials in crime rates in different areas and the process by which specific individuals acquire criminal attitudes and/or behavior. The explanation must combine more than one factor on the sociological or psychological side of the question. It must, first, put the person in the centre of the investigation and then ask: How do people become the kind of individuals who commit crimes? What is it about the structure of a social system that determines the kinds of criminal acts that occur in the system and their distribution? What deters people from crime?

The individual must be placed at the centre of the investigation because only individualist theories can explain different patterns of crime in similar conditions. Class or social group theories cannot explain the only criminals in a family, given that all family members are exposed to the same economic, social or environmental conditions. Burglars are statistically expected to be young, school drop-outs and unemployed, but it is evident that not all the unemployed nor all school drop-outs commit crimes. That does not mean that social conditions are irrelevant, only that they are not deterministic. Social conditions of course do affect people and may even predispose some individuals towards crime. However, it remains true that most individual offenders choose to do what they do.

Having accepted that crime is not a product of single causes like poverty or social deprivation but of a complex of causes, any solution we seek must not rely on either preventative locks and bolts or corrective sentences in prison, but take a long term view. The long term solution is to bring up individuals with clear values of what is good and evil, as concerned for others as for themselves; who do not measure happiness in terms of buying power. At the same time we need a social environment in which the have-nots are not alienated from the haves, but all feel as if they belong together and are all cared for and protected by all. Cooperativeness and solidarity must replace individualism and competitiveness at the expense of others. If not, we encourage the cynicism of ‘might is right’, of crime as the clever individuals way of punishing the fool for being foolish.

The intensity and extent of crime in Western societies is an indicator that something is seriously wrong with them. There ought, in conscience, to be no evasion of the responsibility to question the principles and directions on which they are run.