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Journalism of Courage
Indian citizen Nimisha Priya was living a normal life in Yemen, working as a nurse, while her family returned to Kerala in 2014. But she had bigger dreams. Nimisha hoped to open a clinic in the capital city of Sanaa, aiming to make life easier. For this, she entered into a business arrangement with Yemeni national Talal Abdo Mahdi. However, the situation soon turned grim. Mahdi allegedly took all of the clinic’s revenue, physically and mentally assaulted Nimisha Priya, forged her documents, and even falsely showed her to be his wife.
In an attempt to regain her documents and escape his torture, Nimisha tried to sedate Mahdi with the help of a co-worker. However, he died of an overdose.
In 2020, a Yemeni trial court sentenced Nimisha to death for Mahdi’s murder. Last week, it was announced that she will be executed on July 16. With time running out, her last possible resort may be the payment of blood money. But what is blood money? What is the historical origin of this law and what does it mean in Islam?
Punishments for crimes against life and bodily integrity have existed since the pre-Islamic period. The Arabs, for instance, would penalise a murder with killing. “The difference was that their retaliation had no limits depending on the strength or weakness of their tribe,” says researcher Tahir Wasti in The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (2009).
According to legal professional Silvia Tellenbach in The Oxford Handbook of Criminal Law (2014) the family of the victim in pre-Islamic times could kill every member of the perpetrator’s family who was of equal value to his family as the victim had been to his. “In Islam, the family of the victim can only kill the perpetrator himself,” she notes. In pre-Islamic times it was of no importance whether the victim had been killed intentionally. In Islam, on the other hand, retaliation is only possible in cases of intentional homicide; “unintentional homicide can only be sanctioned with blood money.”
The principles of qisas (retaliation) and diyat (blood money) were thus formed to stop the endless human killing from tribal animosity. The aim of these punishments, Tellenbach argues, is retribution.
However, the principles are only accessible by victims who are ‘protected persons.’ By this, Tellenbach means a victim who is a member of a protected religion — namely, Islam, Christianity, Judaism, or in Iran, Zoroastrianism. “Atheists are not protected nor is a victim who is an apostate or an enemy soldier in war,” says Tellenbach.
The Arabic term qisas, as used in the Quran, is translated as retaliation. It is derived from its root verb qassa, which means “he followed”. Wasti explains that in Islamic law, the expression of ‘retaliation’ is termed qisas because it follows the footsteps of the offender, perpetrating on him an injury, as a punishment, exactly equal to the injury which he inflicted upon his victim, “but no more.”
Qisas is divided into two categories: retaliation of life for a life, and retaliation of organs. The crimes against the life of a person falls in the first category, while others that do not affect life but may injure the organs of a person belong to the latter. Diyat, on the other hand, means compensation or blood money.
The law of Qisas and Diyat was ordained in the Quran, as cited by Wasti, in the following words:
O ye 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 woman for the woman.
But if any 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.
On diyat, or blood money, Wasti quotes the Quran:
We ordained therein for them: “Life for life, eye for eye, nose for nose, Ear for ear,
tooth for tooth and wounds equal for equal.”
But if anyone remits the retaliation by way of charity it is an act of atonement for himself.
Diyat (blood money) was also known among the Arab tribesmen as a peaceful substitute for revenge, but it varied according to the position of the murderer and his tribe. Traditionally, diyat was set at 100 camels for the death of a person and proportionally for lesser injuries. Today, monetary equivalents are calculated by courts. In Iran, for instance, it is adjusted every year to take account of inflation.
“We see in the Quran,” writes Wasti, “that only two kinds of homicide are mentioned.” He elaborates — deliberate and accidental. In the case of deliberate homicide, the punishment prescribed in the Quran is the killing of the offender or payment of blood money, if the legal heirs of the victim do not ask for qisas (retaliation).
In the case of accidental killing, however, the murderer should pay blood money unless the heirs of the victim remit it freely.
In cases where the crime was committed intentionally, the victim’s family can decide whether to execute the perpetrator, to take blood money, or to pardon them. “In modern times,” notes Tellenbach, “it has become widely accepted that the decision regarding punishment for such a severe crime cannot be left solely in the hands of private individuals. Therefore, modern Islamic criminal codes generally provide for punishment by the state if the blood-avenger waives the qisas punishment and the crime is a violation of public order and security, for example in Iran (art 612 IPC of 1996).”
Yet, loopholes exist. In Against White Feminism (2021), attorney and activist Rafia Zakaria gives the example of Pakistan’s 1990 Qisas and Diyat Ordinance, which allows family members of the deceased to pardon a murderer from their sentence after the payment of blood money. She remarks, “When spousal homicide occurs, for example, members of the perpetrator’s own family (since perpetrator and victim often belong to the same family) are usually able to step in and ‘forgive’ the killer.”
Zakaria suggests that ‘discretionary pardon’ would work in a situation where courts are able to consider the relevance of financial reparations for a crime on a case-by-case basis. “Such a system,” she asserts, “could also allow the rejection of it when it is clearly being misused, such as in cases which involve an honour killing or suspected honour killing.”
The legal repercussion of applying the law indiscriminately, according to Zakaria, is that it “opens up a loophole to be exploited by the perpetrators of honour killings.”
