Piracy in the Criminal Law of Afghanistan with a Comparative Analysis of Iranian Law

Abstract

From a religious perspective, highway robbery (ḥirābah) is considered an unlawful act (ḥarām), and from a legal standpoint, it constitutes a crime. In this offense, the perpetrator, with deliberate intent and free will, blocks a public passage while armed, intimidating others and committing acts such as murder, robbery, or the unlawful seizure of property. The act of ḥirābah is not confined to a specific geographical location but may occur anywhere—on land, sea, or air—where public freedom and safety are violated. The significance of this crime lies in the disturbance of public order, the endangerment of lives and property, and the disruption of social security. Consequently, legislators have prescribed severe punishments to deter and prevent the occurrence of this offense. In Islamic jurisprudence, ḥirābah is regarded as one of the most serious crimes due to its destructive social consequences. Legislators, therefore, have adopted harsh and exemplary punishments for offenders. Depending on the gravity of the act and the extent of its harmful effects, the punishment varies according to the degree of the offense. If the offender kills during the commission of ḥirābah, they are sentenced to death; if they seize property without committing murder, their right hand and left foot are amputated. Should the offender merely create fear and intimidation without committing any additional offenses, they are sentenced to exile. However, when multiple crimes are committed simultaneously, the punishment corresponds to the most severe offense. The crime of ḥirābah carries both ḥadd (fixed) and taʿzīr (discretionary) penalties, depending on the presence or absence of aggravating conditions. The present study employs a descriptive–analytical method to examine and analyze the concept of ḥirābah in Islamic law and criminal law, with particular emphasis on its constitutive elements and corresponding punishments.