THE PARADOX OF PUNISHMENT: A COMPARATIVE STUDY OF CAPITAL PUNISHMENT IN INTERNATIONAL LAW AND ISLAMIC JURISPRUDENCE

THE PARADOX OF PUNISHMENT: A COMPARATIVE STUDY OF CAPITAL PUNISHMENT IN INTERNATIONAL LAW AND ISLAMIC JURISPRUDENCE The tension between the global movement toward the abolition of capital punishment and the retention of the death penalty within Islamic legal frameworks is examined in this research article. By synthesizing international human rights standards—primarily the International Covenant on Civil and Political Rights (ICCPR)—with the specific classifications of punishment in Sharīʿah (Islamic Law), the study explores the multifaceted interaction between these systems. The article incorporates a rigorous
contextual analysis of the legal landscape in Pakistan, where international pressure for reform meets entrenched religious mandates. It is argued that while a fundamental disagreement regarding the existence of the death penalty persists, both frameworks emphasize rigorous due process, the necessity of absolute certainty in convictions, and the overarching protection of human dignity. The study concludes that through the mechanisms of ʿAfw (forgiveness) and Shubha (doubt), a functional, if not ideological, convergence is achievable. The sanctity of human life is recognized as the foundational principle of modern civilization, yet the state-sanctioned taking of life remains one of the most polarizing issues in global legal discourse. For the majority of human history, the death penalty is treated as a standard societal response to the most serious crimes; however, in recent decades, it has been rejected in law and practice at an accelerated pace. This rejection is fueled by a growing consensus that the right to life is absolute and that the fallibility of judicial systems makes irrevocable punishment inherently dangerous. Despite this global shift, approximately two-thirds of the world’s population resides in nations that retain capital punishment, illustrating a significant divide in political and legal philosophy. These “retentionist” states often justify their stance through religious or cultural frameworks that view the death penalty as an indispensable instrument of justice and social order. To understand this divide, a comparative investigation of the legal architecture under international law and Sharīʿah is required, particularly regarding how both systems manage the risk of error through concepts such as ʿAfw (Forgiveness) and Shubha (Doubt). II. Philosophical Underpinnings and Universal Rights The move toward abolition in the international sphere is rooted in the philosophical evolution of human rights, specifically the belief that state power must be limited to protect the inherent dignity of the individual. It is maintained by human rights organizations that the death penalty “brutalizes those involved” and conveys a societal message that killing is an acceptable solution to social problems1. This
perspective holds that once a prisoner is rendered defenseless, their execution constitutes a violation of the most fundamental human rights rather than an act of justice.
However, the application of these universal rights is complicated when they intersect with religious legal systems that view justice through a different lens. In Sharīʿah, the death penalty is not viewed as a violation of dignity but as a means to uphold it by ensuring that the most heinous transgressions are met with a proportionate response. This divergent view of dignity leads directly into the formal legal structures established by international treaties, which attempt to bridge the gap between absolute abolition and restricted retention. III. The International Legal Framework and its Restrictions The primary instrument governing this global standard is the ICCPR, which serves as the benchmark for the “right to life” while acknowledging that some states are not yet ready for total abolition. Under Article 6 of the ICCPR, it is stipulated that the death penalty may only be imposed for the “most serious crimes,” a term that is narrowingly interpreted to include only crimes of “intentional killing”.2 This restriction is designed to ensure that the death penalty does not become an instrument of political suppression or a response to non-violent offenses. Building upon these substantive restrictions, international law also imposes strict procedural safeguards to prevent the arbitrary deprivation of life. It is required that capital punishment only be carried out pursuant to a final judgment rendered by a competent, independent, and impartial court. These standards necessitate that the defendant be granted all judicial guarantees recognized as indispensable, including adequate legal counsel and the right to appeal to a higher tribunal.3 This emphasis on procedural
perfection in international law finds an unexpected but profound echo in the evidentiary requirements of Islamic jurisprudence. IV. The Architecture of Sharīʿah: A Multi-Layered Justice System 1Amnesty International, 2007. 2Professor William A. Schabas, Director of the Irish Centre for Human Rights, has noted that these “two important references to abolition” were added to the draft text of the International Covenant on Civil and Political Rights when it was under consideration at the Third Committee of the UN General Assembly. The reference in Article 6(2) “indicated not only the existence of abolitionist countries but also the direction which the evolution of criminal law should take”, while the reference in Article 6(6) “set a goal for parties to the covenant. The travaux préparatoires indicate that these changes were the direct result of efforts to include a fully abolitionist stance in the covenant. They represented an intention… to express a desire to abolish the death penalty, and an undertaking by States to develop domestic criminal law progressively towards abolition of the death penalty”. (William A. Schabas, The Abolition of the Death Penalty in International Law, second edition, Cambridge University Press, Cambridge, United Kingdom, 1997, p. 73) 3Death Penalty Debate in Pakistan, 2025. In Islamic jurisprudence, the death penalty is not a monolithic concept but is categorized based on the nature of the crime and the specific rights involved. This system differentiates between crimes against the state, crimes against individuals, and crimes against the divine order. 4.1 Qisās4: Restorative Retribution Qisās, or the law of retaliation, is applied in cases of intentional homicide and is established by the Quranic mandate: “retaliation is prescribed for you in the matter of the slain” (2:178). Unlike secular criminal law where the state is the sole prosecutor, Sharīʿah empowers the victim’s heirs (Wali al-Dam) to decide the outcome. They are granted the legal right to choose between execution, financial compensation known as Diyyah (Blood Money), or ʿAfw (Absolute Forgiveness). Because ʿAfw is described in religious
texts as the most meritorious path, the system inherently encourages mercy over execution, thereby functioning as a restorative justice mechanism.
4.2 Hudūd: Fixed Penalties and Social Integrity While Qisās deals with individual rights, Hudūd punishments involve crimes considered to be against the “Rights of God” (Huquq Allah). These include offenses such as Sariqa5 (theft), Zinā al-Muhsan6 (adultery by a married person), Hirābah7 (Armed Robbery/Terrorism) and Riddah (apostasy), etc., which are seen as threats to the moral and social fabric of the community. The penalty for Riddah, for instance, is justified as
a protection against the destabilization of the Islamic social order. However, the severity of these penalties is balanced by the almost impossible burden of proof required for conviction.
4.3 The Doctrine of Shubha: The Ultimate Safeguard 4Surah Al-Baqarah (2:178) This is the central verse establishing the law. It clarifies that retribution must be proportional and limited to the guilty party, rather than punishing entire families or tribes based on status.
“O you who have believed, prescribed for you is legal retribution for those murdered – the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy…” Surah Al-Baqarah (2:179) This verse explains the social purpose of Qisas—that by establishing a clear, fair consequence, it deters future violence and ultimately saves lives. “And there is [a saving of] life for you in legal retribution, O people of understanding, that you may become righteous.” Surah Al-Ma’idah (5:45) This verse references the laws given in previous scriptures and reaffirms the principle of equal retaliation while highlighting that forgoing it is an act of expiation for one’s own sins.
“And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him…” Surah Al-Isra (17:33) This verse gives the heir or “guardian” of the victim the legal right to seek justice but strictly forbids “excess” in retaliation (such as killing someone other than the murderer or using excessive cruelty). “And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly—We have given
his heir authority, but let him not exceed limits in [the matter of] taking life…”. 5″As for the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah…” (Surah Al-Ma’idah, 5:38). 6″The [unmarried] woman or [unmarried] man found guilty of sexual intercourse—flog each one of them with a hundred lashes…” (Surah An Nur, 24:2). 7 “Indeed, the penalty for those who wage war against Allah and His Messenger and spread mischief in the land is death, crucifixion, cutting off their hands and feet on opposite sides, or exile from the land…” (Surah Al-Ma’idah, 5:33).The most critical intersection between Sharīʿah and international fair trial standards is the principle of Shubha (Doubt)8. It is a foundational maxim in Islamic law that “Hudūd are averted by doubts.” If any
uncertainty—legal, factual, or evidentiary—is identified, the capital sentence must be vacated or commuted. This requirement for absolute certainty ensures that the death penalty remains an exceptional measure, mirroring the “beyond reasonable doubt” standard found in the ICCPR and the Conventionb Against Torture (CAT). V. Pakistan as a Focal Point of Legal Synthesis
The theoretical interplay between international standards and Islamic law is most visible in the
contemporary legal landscape of Pakistan. As a retentionist state with one of the world’s largest death row populations, Pakistan operates under 11 distinct pieces of legislation that identify 32 capital offenses.9 Historically, Pakistan has utilized the death penalty as a tool for national security. however, a significant shift is observed in recent data: from August 2019 to August 2022, death sentences dropped from 2,454 to 657, and no executions were recorded during the 2020-2022 period.10 This de facto moratorium is attributed to several factors, including the cessation of military court jurisdictions and an increased rate of acquittals by the Supreme Court, which has become increasingly skeptical of the quality of evidence produced in lower courts. Despite these positive trends, structural challenges persist. The absence of Judiciary Discretion in mandatory death penalty cases is frequently cited as a major hurdle, as it prevents judges from considering Mitigating Factors such as the defendant’s mental health or socio-economic background. Furthermore, the reliance on confessions that may be obtained through coercion remains a point of contention betweenPakistani domestic practice and its obligations under the CAT. VI. Comparative Analysis: Reconciling the Conflict When these two systems are compared, a clear conflict of scope is identified, yet a convergence of process is also discovered. The conflict is primarily found in the list of capital crimes; international law
seeks to restrict the death penalty solely to murder, while certain interpretations of Sharīʿah maintain it for offenses such as blasphemy or apostasy. However, a functional convergence is found in the shared commitment to avoiding the execution of the innocent. The Islamic emphasis on ʿAfw (Forgiveness) provides a culturally and religiously legitimate 8The Prophet ﷺ said: “Ward off the Hudood punishments from the Muslims as much as you can. If there is any way out for a person, let him go. (Tirmidhi). 9FIDH & HRCP (2022). Pakistan: Briefing note on the death penalty. 10 FIDH & HRCP (2022). Pakistan: Briefing note on the death penalty. pathway for reducing executions. By revitalizing the internal mechanisms of Sharīʿah, such as the strict application of Shubha and the promotion of Diyyah, Islamic states can significantly reduce their execution rates while maintaining their religious legal identity. VII. Conclusion The research concludes that the gap between international human rights standards and Islamic legal frameworks is not as wide as it appears on the surface. While a fundamental ideological tension persists regarding the existence of the death penalty, both systems converge on the necessity of protecting the individual from judicial error. It is argued that the path toward reform lies in the integration of these “restorative” religious principles with international “due process” standards. By prioritizing the Islamic values of mercy and doubt, states like Pakistan can uphold the inherent right to life without abandoning their religious heritage. Other References Khalid, J., Rehman, T. U., & Khan, A. (2025). Death Penalty Debate in Pakistan: Historical Context, Legal Implications, and Reform Prospects. Law Research Journal. Scheinin, M. (2021). Death Penalty. Max Planck Encyclopedias of International Law. Amnesty International (2007). The Death Penalty v. Human Rights. Dieter, R. C. Introduction: International Perspectives on the Death Penalty. UN General Assembly. International Standards on the death penalty. Al-Munajjid, M. S. Reasons for the Penalty of Death in Islam. Al-Munajjid, M. S. Why the Apostate is Killed in Islam.

Writer:( Mohsin Khan ) Student of Law and Shariah, University of Swat