Would an Islamic court convict or acquit Bin Laden of murder?

In the days leading up to the U.S. strikes against Afghanistan, the Taliban repeatedly offered to try Osama Bin Laden in its own courts, "If America provides solid evidence of Osama Bin Laden's involvement in attacks in New York and Washington," said Afghan Ambassador to Pakistan Mullah Abdul Salam Zaeef last Friday.

What sort of case could be made against Osama Bin Laden in a Taliban court? The evidence presented to the Western public is mostly circumstantial. There are the taped celebratory phone calls between known members of al-Qaida, including one in which a suspect declares, "We've hit the targets." There is motive and opportunity, as well as incriminating statements, including a Bin Laden edict from 1998 that "Muslims everywhere should kill Americans wherever they found them, soldiers and civilians alike, in accordance with the words of almighty God," as well as his video statement of this week in which he all but takes credit for the Sept. 11 suicide hijackings. And there are numerous links, financial and professional, between Bin Laden's confederates and the hijackers. There is a pattern of prior attacks.

But would it be enough for a court operating under sharia—the Islamic holy law—to convict Bin Laden? Sharia law derives its main principles from several sources: primarily the Quran, and then the Sunna—teachings of Mohammed not found in the Quran. Ijma is the third source of sharia law, consisting of the decisions of religious scholars, and the Qiyas are essentially sharia common law.

The best indicator of the Taliban's approach to the rules of evidence lies in their current prosecution of eight Christian aid workers, jailed in Afghanistan since Aug. 3 for allegedly attempting to convert 65 Afghan boys to Christianity.

Under traditional Islamic holy law, the standard of proof for the most serious, or had, crimes is extremely high, even analogous to the West's "guilt beyond a reasonable doubt" standard. For had crimes—those expressly laid out in the Quran—the burden of proof is substantially higher than it is for lesser, ta'zir (non-Quranic) crimes. Judges cannot modify the sentence for a had crime as they can a ta'zir crime because the Quran prohibits them.

Since the alleged offense of the Christian missionaries, apostasy, is a had crime, under sharia a judge can find guilt only if the accused confesses or if there are enough witnesses—usually two—to the crime itself. Traditionally, circumstantial evidence carries almost no weight under sharia. Confessions and witness testimony will usually be the only evidence that supports a conviction. American law does not require confessions to convict, although they are certainly probative of guilt. By the letter of sharia law, then, if there is any doubt that the evidence against the Christian aid workers supports conviction for a had crime, the judge must treat the crime as a ta'zir crime.

Is the Taliban court proceeding by the letter of the law— sharia or otherwise? As best we know—and we don't know much, since the Taliban court has been scrutinizing the evidence in secret—the totality of the evidence relied on by the Taliban to arrest, hold, and try the eight Shelter Now workers consists of:

• computer disks containing the story of Christ written in Dari (one of Afghanistan's two main languages);
  
• copies of the Bible, in English and Dari, as well as another book on Christianity;
  
• a timetable for Shelter Now's international radio broadcasts; and
  
• what the Taliban is calling the "confession" of a female staff member, although all eight Westerners have denied the charges, and none has confessed.

The seizure by the police of these materials was not only deemed sufficient to arrest the two Americans, four Germans, two Australians, and 16 Afghans. It was also considered sufficient evidence to hold them, without charges or access to an attorney, for almost a month until the accused were finally told, in late August, of the charges against them. They were provided an attorney two weeks after that. This case, only the second criminal prosecution of a foreign national by the Taliban, was deemed so important that the Taliban supreme court is hearing it directly. The court consists of a chief justice, several judges, and other religious leaders. Last week, the supreme court delayed the trial again to allow a Pakistani attorney 15 days to review the evidence and prepare a collective defense against the charge of proselytizing.

If the court chooses to impose a death sentence, it must still be approved by the supreme Taliban leader—the reclusive Mullah Mohammad Omar—who, while not a judge, is the highest legal authority under the Taliban legal system. Under Islamic law, the missionaries could face execution by hanging if convicted, although two conflicting decrees issued last summer by Mullah Mohammad Omar raise the question of whether they will be punished by execution or expulsion. The Taliban's foreign minister, Wakil Ahmad Mutawakil, issued a statement last month indicating that even the foreigners could be eligible for the death penalty because "they were 'caught red handed.' "