Right to Life in the Islamic Republic of Iran

The possibility of abolition of the death penalty in the

Iranian laws and practice

Peyman Majidzadeh

Master of Arts in Human Rights and Conflict Management 2010/2011

Scuola Superiore Sant'Anna, Pisa

September 2012

Supervisor: Dr. Annalisa Creta

Scuola Superiore Sant'Anna

Master of Arts in Human Rights and Conflict Management

  ii  

Wherever men and women are persecuted because of their race, religion, or political views, that place must — at that moment — become the center of the universe.

We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.

The opposite of love is not hate; it’s indifference. The opposite of art is not ugliness; it’s indifference. The opposite of faith is not heresy; it’s indifference. And the opposite of life is not death; it’s indifference.

Elie Wiesel

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I certify that all materials presented here are of my own creation and it

incorporates my own ideas and judgments. I also certify that any work

adopted from other sources is duly cited and referenced as such. To the

best of my knowledge and belief, all the information herein contained is

true, correct and accurate.

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ABSTRACT

In contrast with the global trend on diminishing number of executions, the

Islamic Republic of Iran executes more persons, in proportion to its

population, than any other country in the world, at an increasing alarming

rate. The theocratic regime in power with religious mechanisms in hand

deals with the social problems like addiction through punishing individuals

via brutal death sentences. The vagueness of crimes punishable by death

and giving the judge the freehand to issue capital punishment sentences

justified by sharia, are the contributing factors to this trend. While there is

an emerging movement on abolition of the death penalty among the civil

society, it is still a highly sensitive issue to touch upon as one may face

the death penalty on the ground of apostasy for initiating such claims. Iran

does not meet international standards on protection and promotion of the

right to life and frequently violates its obligations under such instruments.

In this study I have tried to provide an analysis of crimes punishable by

death under Iranian and the sharia laws, and come up with

recommendations for abolition or suspension of the death penalty with due

consideration to Koranic verses and Islamic jurisprudence. I have

discussed and proved that the scope of the death penalty can be limited

and confined to qesas only, which is a private and forgivable right.

However, my aim is to sensitize the reader on differences between the

death penalty and qesas, which its implementation can be limited.

Evidences and reasoning are provided in the third chapter to prove that

the philosophy of qesas is reviving life rather than taking it, and Koran has

already paved the way for it by emphasizing on pardon and blood money,

instead of retribution.

In the end I have argued that human rights and Islam do not contradict

each other in respect of the death penalty and prescription of the death

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penalty can be limited to “the most serious crimes” as referred to by the

international standards. This obviously requires legal reforms and social

mobilization, both entailing state’s responsibility to initiate and support it.

In an idealistic situation, in order for the justice to be restored, those who

committed human rights violations and offered falsehoods to cover them

up must be held accountable and punished.

 

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Table of Contents

ABSTRACT ..................................................................................... iv

Introduction .................................................................................. 1

CHAPTER 1: Right to Life Under International Standards ............... 4 International and Regional Legal Instruments for Protection and Promotion of Right to Life .............................................................................................. 4 Iran and International Obligations .............................................................. 10 Case Study: 1980s Mass Executions ........................................................... 12

CHAPTER 2: Rules of the Game .................................................... 18 Ruling the State ....................................................................................... 18 Judiciary and Islamic Jurisprudence ............................................................ 22 Islamic Punishments ................................................................................. 23 List of Crimes Punishable by the Death Penalty ............................................ 25

CHAPTER 3: Abolition Is Possible ................................................. 29 Iran, Sharia and Abolition of the Death Penalty ............................................ 30 Crimes Concerning Tazir Punishments ......................................................... 32 Drug Related Offences .............................................................................. 36 Crimes Concerning Hodud and Qesas Punishments ....................................... 39 Qesas for Life .......................................................................................... 45

Conclusion ................................................................................... 52

Bibliography ................................................................................ 55

Appendices .................................................................................. 59 A History of UN Special Representatives and Rapporteurs in Iran .................... 59 Power Structure in the Islamic Republic of Iran ............................................ 66  

  1  

Introduction

"The French Declaration of Human and Citizens Rights" in 1789 (year of

the French Revolution) is deemed to be the beginning of the defence of

human rights paradigm on the international level. It was enshrined in the

prelude to the French Constitution and spread to other countries in waves.

After World War II, in 1945, the United Nations was established and "the

Universal Declaration of Human Rights was adopted on 10 December 1948

with 48 votes in favor of the 56 member states of the United Nations;

there were no votes against but eight governments abstained. 1 This

paradigm calls on all countries to respect, protect and fulfill the right to life

and abolish all types of death penalty in their laws. Although a lot of

Islamic countries, including Iran, have acceded to the Universal

Declaration of Human Rights, they have stated provisions on some of its

articles, among which death penalty is one of the most important ones.

One of the challenges the Islamic world has been facing with the West on

respecting human rights is qesas or “retribution”. It is frequently

mentioned in Koran and the Muslims cannot withhold it whereas the West

calls it a violation of human rights.2 Amnesty International in its annual

report of 2011 released the figure of executions worldwide:

“At least 1,923 people were known to have been sentenced to death in 63 countries in 2011. This is the minimum figure that can be safely inferred from Amnesty International’s research and represents a decrease from the 2010 figure of at least 2,024 death sentences worldwide. At least 18,750 people were under sentence of death worldwide at the end of 2011, which is the minimum figure based on numbers Amnesty International obtained by country.”3

                                                                                                               1 Hossein Mehrpour, Nezam Beinolmelali Hoquq Bashar (International Human Rights System), Tehran, 1998, p. 43 2 Emadaddin Baghi, Haq-e Hayat (Right to Life), vol. 1, 2007, p. 14 3 Amnesty International, Death Sentences and Executions in 2011, March 2012, p. 8

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Execution is one of the most symbolic behaviors of human being. Being at

the beginning of the third millennium, to this date, 155 out of 198

countries and territories worldwide have abolished the death penalty (99

of them have abolished it for all crimes, 7 retained it for crimes committed

in exceptional circumstances, 5 have a moratorium on executions in place,

and 44 countries have suspended it) and yet 43 countries maintained the

death penalty both in law and practice.4

With its glorious historical background, culture and civilization among

which the Cyrus cylinder5 as the first human rights charter in the world can

be mentioned6, Iran could have been in the forefront of abolishing death

penalty. It is so unfortunate that not only Iran is still practicing the death

penalty, but also is among the four countries with the highest execution

rate, and makes it to the top of the list in execution rate in proportion to

its population7.

The first chapter of this analysis provides the reader with available

international and regional instruments and mechanisms to ensue the

enjoyment of the right to life. It then highlights Iran’s obligations to

respect, protect and fulfill the right to life under the international human

rights and the international customary laws it is abided to. Through a case

study in this chapter, I have tried to mention the violations of the Islamic

Republic of Iran in breach of its ratified treaties and discuss the

possibilities of being hold accountable for those violations.

                                                                                                               4 This information is valid until 5 July 2012 when Benin acceded the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. For more information, see: http://www.handsoffcain.info/news/index.php?iddocumento=16307938 5 Paul Gordon Lauren, The evolution of international human rights, 2003, p. 11 6 Talbott, W.J. Which Rights Should be Universal?,, Oxford University Press US, 2005, p. 40 7 Amnesty International, Death Sentences and Executions in 2011, March 2012, p. 55

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Due to the space limit, the scope of this thesis is on the Iran of 1979

onwards, where the Islamic Revolution set out its new rules and

regulations and revised the constitution. In order to better understand the

context and make more feasible recommendations, I have given a brief

history of the Islamic Republic of Iran and its political formation and

governing laws, in the second chapter. I have then given a comprehensive

review on the situation of the right to life in the Islamic Republic of Iran

since its establishment in 1979, and the definition of crimes punishable by

death penalty under Iranian and sharia law.

My third chapter, while reiterating the fight against the death penalty over

the course of the Iranian history, studies the crimes punishable by death

penalty in Iran in more depth, and recommends possibilities of abolishing

the death penalty in Iran penal code and in sharia law, which are the

pillars of Iran’s judiciary system.

 

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CHAPTER 1: Right to Life Under International Standards

International and Regional Legal Instruments for Protection and Promotion of Right to Life

Although the death penalty appears to constitute a violation of right to life,

human rights law does not strongly support that and still leaves the states

with the option of imposing the death penalty. However, it urges them

towards abolition of it and imposes certain limits on the way the death

penalty can be prescribed. The non-binding “Universal Declaration of

Human Rights” backed with legally binding “International Covenant of Civil

and Political Rights” 8 call on the member states to avoid the capital

punishment. Article 3 of the UDHR9 grants everyone with the right to life,

liberty and security of person. Article 6 (paragraph 2) of the Covenant

provides: "In countries which have not abolished the death penalty,

sentence of death may be imposed only for the most serious crimes in

accordance with the law in force at the time of the commission of the

crime."10 Article 2 in its paragraph 5 stipulates: "Sentence of death shall

not be imposed for crimes committed by persons below eighteen years of

age and shall not be carried out on pregnant women."11 Article 1412 of the

same also highlights the need for formal and regular proceedings, state’s

responsibility to inform defendants of specific accusations against them

and provide them with legal counsel, and the chance to appeal to ensure

the fair trial.

                                                                                                               8 There was no guarantee for the implementation of the Declaration. Therefore, the International Covenant for Economic, Social and Cultural Rights and the International Covenant for Civil and Political Rights were approved by the UN General Assembly on 16 December 1966 to make the Declaration binding on the member states. The second Covenant came into force on 23 March 1976. Under the ICCPR human rights principle, the death penalty should be avoided. 9 UDHR, Article 3 10 ICCPR, Article 6 (2) 11 ICCPR, Article 6 (5) 12 ICCPR, Article 14

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The “Convention on the Prevention of the Punishment of the Crime of

Genocide” in 1948, prohibits the killing of members of a national, ethnic,

racial or religious group with the intent to destroy the group in whole or in

part.13

The Geneva Conventions of 1949, known as international humanitarian law

governing the laws of war uphold the right to life of civilians, and

combatants who are injured or have laid down their arms at times of war.

Such rights are stipulated in Article 3 (paragraph 1) of Geneva Convention

relative to the Protection of Civilian Persons in Time of War14; and Articles

51, 57,75 and 85 of the Additional Protocol I to the Geneva Convention

(1949)15

The 1951 Geneva Convention on Refugees also protects right to life and in

its Article 33, prohibits forced return (the principle of non-refoulement) of

persons facing a threat to their lives in their home country16.

Violations vis-à-vis the discriminatory and disproportionate use of the

death penalty concerning ethnic and racial minorities have been raised

with the “Committee on the Elimination of Racial Discrimination”, which

oversees the implementation of the 1965 “International Convention on the

Elimination of All Forms of Racial Discrimination”. This Convention came

into force in January 196917.

                                                                                                               13 UN Doc. A/RES/260, Articles 2 and 3 14 Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article 3 (1) 15 Additional Protocol I to 1949 Geneva Convention relating to the Protection of Victims of International Armed Conflicts, Articles 51, 57, 75, 85 16 UN Doc. Treaty Series, vol. 189, p. 137, Article 33 17 CERD is a body of independent experts. State parties are obliged to submit regular reports to the Committee and the Committee’s recommendations and concerns are reflected in the form of Concluding Observations to the states. The Committee’s monitoring functions is performed through: early-warning procedure, the examination of inter-state complaints and the examination of individual complaints.

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The Special Rapporteur on Extrajudicial, Summary or Arbitrary

Executions of the Commission on Human Rights was appointed in March

1982. This was the first appointment of a person to study a particular type

of human rights violation on a worldwide basis. The rapporteur is able to

issue an urgent appeal to prevent imminent violations of the right to life.

The mandate has been renewed several times. The Commission on Human

Rights, in its resolution 1992/72, renewed the mandate of the Special

Rapporteur and widened the title of the mandate to include "extrajudicial"

as well as "summary or arbitrary" executions; indicating that the members

of the Commission have adopted a broader approach to the mandate on

executions to include all violations of the right to life as guaranteed by a

large number of international human rights instruments. This mandate

covers all countries, irrespective of whether a state has ratified relevant

international Conventions.18

The Siracusa Principles on the Limitation and Derogation Provisions in the

ICCPR developed by the UN Commission on Human Rights on the

prevention of discrimination and protection of minorities in 1984 assert

that no state party shall even in time of emergency threatening the life of

the nation, derogate from a number of key guarantees which include the

right to life.19

The UN Economic and Social Council in 1984 set safeguards guaranteeing

protection of the rights of those facing the death penalty 20 which

elaborates further on the circumstances under which the death penalty can

be imposed and the procedures to be followed.

                                                                                                               18 http://www.ohchr.org/EN/Issues/Executions/Pages/SRExecutionsIndex.aspx 19 UN Doc. E/CN.4/1985/4 20 Adopted by Economic and Social Council resolution 1984/50 of 25 May 1984

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On 15 December 1989, the UN General Assembly approved the second

optional protocol to ICCPR, aiming at the abolition of the death penalty,

which entered into force on 11 January 1991. So far, 75 states have joined

the protocol. It urges states to take all necessary measures to abolish the

death penalty and stipulates that no reservation is allowed except for the

application of the death penalty for “most serious crimes” of a military

nature committed during wartime. 21

Children are not left out of this protection and the 1989 Convention on the

Rights of the Child in its Article 3722 reiterates the prohibition of the use of

the death penalty for persons under 18 at the time of the crime. The CRC

came into force in September 1990.

There are some other instruments at the regional levels too that protect

and promote the right to life:

In Arica, the 1981 African Charter on Human and Peoples’ Rights protects

the right to life in its Article 423. In addition to that, Article 5 of the African

Charter on the Rights and Welfare of the Child24 (1990) protects the right

of the child to survival and development, which means both the right not

to be sentenced to death but also the right to be provided with adequate

resources to survive.

In America, Article 4 of the American Convention on the Human Rights

(1978) protects the right to life and restricts the situations in which the

death penalty can be used. It goes on to say that in countries that have

not abolished the death penalty it may be imposed only for "the most

serious crimes and pursuant to a final judgment rendered by a competent

                                                                                                               21 UN Doc. A/RES/44/128 22 UN Doc. Treaty Series, vol. 1577, p. 3, Article 37 23 Organization of African Unity, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, Article 4 24 Organization of African Unity, CAB/LEG/24.9/49 (1990), Article 5

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court and in accordance with a law establishing such punishment, enacted

prior to the commission of the crime. The application of such punishment

shall not be extended to crimes to which it does not presently apply." It

also stipulated that the death penalty shall not be reestablished in states

that have abolished it; it shall not be administered for political offenses nor

imposed on persons who, at the time the crime, were under 18 years of

age or over 70 years of age, nor shall it be applied to pregnant women.25

The second additional protocol to the American Convention on Human

Rights to Abolish the Death Penalty adopted in 1990 reiterates the

restrictions set in Article 4 of the American Convention on the Human

Rights on imposing the death penalty, and abides signatory states to

refrain from using capital punishment in any peacetime circumstance.26

The strongest position in support of abolition of the death penalty can be

found in European instruments. The 1949 European Convention on Human

Rights protects the right to life and stipulates circumstances under which

deprivation of life shall not be regarded as contravening this article where

it results from the use of force which is no more than absolutely necessary

in Article 2: a) in defence of any person from unlawful violence; b) in order

to effect a lawful arrest or to prevent the escape of a person lawfully

detained; c) in action lawfully taken for the purpose of quelling a riot or

insurrection. Article 15 of the ECHR does not allow derogation from this

principle even in times of emergency except for deaths resulting from

lawful acts of war.27 In the next step, Protocol No. 6 to the ECHR (1983)

stipulates that state parties to the protocol shall abolish the death penalty

and allows them to retain this penalty for certain situations in war time.28

Another development in abolition of the death penalty was through the

                                                                                                               25 American Convention on Human Rights, Article 4 26 Protocol to the American Convention on Human Rights to Abolish the Death Penalty, OAS Treaty Series, N°.73 27 ECHR, Article 2 and 15 28 Protocol 6 to ECHR

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Charter of Fundamental Rights of the European Union in 200029 where in

its Article 2, defends the right to life and prohibits the use of the death

penalty.

Finally, Protocol No. 13 to the ECHR provides for the total abolition of the

death penalty for its members on 3 May 2002.30 One of the preconditions

for Turkey to be admitted to the European Union was to abolish the death

penalty. Hence, Turkey was the first Islamic state to consider the abolition

of the death penalty. The Turkish parliament finally abolished the death

sentence except under war conditions with 256 votes for and 162 votes

against on 2 August 2002. 31

As can be seen in the brief summary above, the human rights instruments

are consistently evolving though history. As a result the existing challenge

between the West and Islamic states over human rights concerning death

penalty (qesas) and women’s rights would inevitably grow deeper. The

question here is that are there any grounds in Islamic jurisprudence

and sharia supporting the suspension and abolition of death penalty in

countries following Islamic law like Iran or not. To further investigate the

possibilities, obviously in Iran, which is my country of focus in this study, I

first need to have a look at the international treaties Iran is abided by and

the interaction between Iran and the international community over the

course of right to life and the death penalty.

                                                                                                               29 Official Journal of the European Communities, 18 December 2000 (2000/C 364/01), Article 2

30 Protocol 13 to ECHR 31 http://www.telegraph.co.uk/news/1403379/Turkey-votes-to-abolish-death-penalty.html#

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Iran and International Obligations

Islamic Republic of Iran (IRI) is a party to a number of international

instruments described above. IRI has adhered to 1949 Geneva

Conventions with the reservation of “use the Red Crescent as the

distinctive emblem and sign instead of the red lion and sun”, on 20

February 195732. It is a signatory member to Additional Protocol I and II,

but has not signed Additional Protocol III.33

Iran has adhered to The Convention on the Prevention of the Punishment

of the Crime of Genocide on 14 August 1956 with no reservation. It has

also ratified the International Covenant on Civil and Political Rights on 24

June 1975 with no reservation but has not ratified its Optional Protocols.

IRI has also ratified the Convention on the Rights of the Child, on 13 July

1994 with the following general reservation upon ratification: “The

Government of the Islamic Republic of Iran reserves the right not to apply

any provisions or articles of the Convention that are incompatible with

Islamic Laws and the international legislation in effect."34

In the area of refugees and asylum seekers, Iran has adhered to 1951

Geneva Convention on Refugees and 1967 Protocol, on 28 July 1976

Subject to the following reservations:

1. In all cases where, under the provisions of this Convention, refugees enjoy the most favorable treatment accorded to nationals of a foreign State, the Government of Iran reserves the right not to accord refugees the most favorable treatment accorded to nationals of States with which Iran has concluded regional establishment, customs, economic or political agreements.

                                                                                                               32 http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P 33 http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=S 34 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en

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2. The Government of Iran considers the stipulations contained in articles 17, 23, 24 and 26 as being recommendations only.35

Islamic Republic of Iran has been under the spotlight of the UN and the

international community several times, for the breach of its international

commitments and obligations to protect and promote the right to life.

Although the constitution of Iran was changed after the 1979 revolution,

Iran did not make any formal objection or reservation to the United

Nations on the treaties and conventions ratified prior to the revolution. Dr.

Mehrpour, who was deputy head of Iran’s judiciary for legal affairs for a

long time, repeatedly reminds that the government of the Islamic Republic

of Iran has obligation or absolute obligation to the ICCPR. He also adds

"the government of the Islamic Republic of Iran has inherited this

unconditional obligation but is facing difficulties and possibly contradictions

owing to the fundamental transformation in the system of the

government." 36 Another piece of evidence on the awareness of the

authorities about their international obligations is the spokesperson of the

judiciary and its research director, Dr. Mir Mohammad Sadeqi’s interview

with the state TV in April 2001 where he said: "The International Covenant

for Civil and Political Rights is now part of our domestic laws".37

The Iranian authorities are well aware of their obligations and concerned

with their international image but their record shows how difficult it is to

have their cooperation with the UN mechanisms when it comes to

monitoring the situation of human rights in Iran. The IRI has been among

the few states for which the UN Commission on Human Rights has

appointed Special Representatives. Since 1979, 14 UN Special Rapporteurs

                                                                                                               35 http://www.unhcr.org/cgi-bin/texis/vtx/search?page=search&docid=3d9abe177&query=1951%20Refugee%20Convention 36 Hossein Mehrpour, Hoquq Bashar dar Asnad e Binalmelali and Muze’ Jomhuri Islami Iran (Human Rights in International Instruments and the Position of the Islamic Republic of Iran), Tehran, 1995, pp. 67, 85, 94, 77 37 Baghi, p. 25

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and Representatives have been appointed to monitor and report on the

situation of human rights in Iran; 5 have visited Iran at the invitation of

the government, 5 were granted a permit to visit Iran and 4 were barred

by the government to visit the country despite their frequent attempts. 56

significant reports have been developed and presented to the UN on the

situation of human rights in Iran by the 14 Special

Rapporteurs/Representatives to date. 5 out of 14 SRs have clearly

highlighted their concerns over situation of the right to life in their reports

to the UN. “Over years, it has responded to the allegations of abuses.

Sometimes denunciatory and evasive, often in denial, and seldom helpful

in providing accurate information, the government responses were

designed to effect the lifting of Iran from the UN special procedures of

public scrutiny.”38 A more detailed list of SRs, their mandates and reports

is attached to this study under annex 1.39

Before I move on to the next chapter and discuss the domestic law of Iran,

I want to have a closer look at the following case study on mass execution

of the political prisoners in 1980s in Iran, through which Iran’s breach of

its obligations is highlighted.

Case Study: 1980s Mass Executions

The large number of executions of military officers and high-ranking civil

servants in the early days of the revolution revealed the emerging

governance of a new state and its behavior and tolerance against the

oppositions. The violent suppression continued over fundamental human

rights as it reached to its unthinkable level. For the period of 1979-85, the

UN Special Representative for Iran, Reynaldo Galindo Pohl estimated that

                                                                                                               38 Reza Afshari, Human Rights in Iran: The Abuse of Cultural Relativism, University of Pennsylvania Press, 2011, p. xvi 39 Iran Human Rights Documentation Center has compiled a comprehensive list on the history: http://iranhrdc.org/files/pdf_en/UN_Reports/Table-of-UN-Special-Rapporteurs-and-Representative-involvement-in-Iran.pdf

  13  

the regime executed some 7,000 men and women. Some other

independent studies provided the figure of 12,500 executions to June

1985. 40 In the early 1980s Amnesty International provided detailed

information about mass executions and recorded a number of cases in

which minors were executed in the IRI for political offences.41

“In January 2009 Iranian authorities undertook to destroy hundreds of

unmarked graves in Khavaran cemetery, south Tehran. The attempt to

destroy evidence was the latest episode of a political drama which began

in the summer of 1988, with the secret killing of thousands of Iranian

political prisoners.”42

“Late in July 1988, as the war with Iraq was ending in a truculent truce,

prisons in Iran crammed with government opponents suddenly went into

lockdown… The only permitted visitation was from a delegation…: a

religious judge, a public persecutor, and an intelligence chief. Before them

were paraded, briefly and individually, almost every prisoner (and there

were thousands of them) who had been jailed for adherence to the

“Mojahedin Khalq Organization”43 – the MKO. “44

Most of these prisoners were detained since 1981 simply for taking part in

the street protests or possession of political reading materials. The arrests

and the executions continued ceaselessly throughout the 1980s. According

to Professor Ervand Abrahamian, the victims came from a variety of

groups: Mojahedin, Marxist, Maoist, socialist and liberal. Abrahamian’s

                                                                                                               40 Afshari, p.38 41 Amnesty International, Iran: Violation of Human Rights, 1987-1990, New York, 1990. 42 Geoffrey Robertson QC, The Massacre of Political Prisoners in Iran, 1988, Abdorrahman Boroumand Foundation, 2011, Publisher’s Note 43 A movement which had taken its politics from Karl Marx, its ideology from Islam, and its guerilla tactics from Che Guevara. It fought the Shah and supported the revolution that brought Ayatollah Khomeini to power, but later broke with his theocratic state and took up arms against it, in support of democracy. 44 Robertson, p.1

  14  

thorough research reveals that the overwhelming majority of those

executed in the 1980s were high school and university students or recent

graduates. Women constituted some 12 percent of the victims.45

On 20 July 1988 Ayatollah Khomeini, the Supreme Leader of IRI, in his

own words reluctantly "drunk the cup of poison"46 and accepted the UN

ceasefire in the war with Iraq 47 . One week later a small force

of Mojahedin with Iraqi air cover mounted an attack over the border. After

an initial success, they were routed on 29 July 1988. The previous day,

Khomeini had issued a fatwa ordering a death sentence for all

imprisoned Mojahedin, and this was put into immediate operation through

three-man "Death Committees" 48 who confirmed the identity and

"steadfastness" of Mojahedin prisoners prior to sending them for

execution. 49 Their bodies were doused with disinfectant, packed in

refrigerated trucks and buried by night in mass graves. Their families were

refused of any information about the location of the graves and ordered

not to mourn them in public. This prohibition is still enforced today. “By

mid-August 1988, thousands of prisoners had been killed in this manner

by the state – without trial, without appeal and utterly without mercy.”50

On 26 August a second wave broke, entailing brief trials of all "leftist"

prisoners for the religious crime of apostasy. The face of death smiled at

those young men and women as clerical judges declared them to have

engaged in “war against God”.

The first reaction to the mass murder of 1988 in Iran, amid the news

blackout over the prisoners was through Amnesty International’s Urgent                                                                                                                45 Nasrin Alavi, We are Iran, Portobello, London, 2005, p. 62 46 Farhang Rajaee, Islamism and Modernism: The Changing Discourse in Iran, University of Texas Press, 1 December 2007, p.153 47 UN Doc. S/RES/598 (1987) 48 A delegation of a religious judge, a public persecutor, and an intelligence chief, later called by the survived prisoners the “Death Committee” 49 Robertson, p. 111 50 Ibid, p. 1

  15  

Action51 showing its deep concern over execution of hundreds of political

prisoners in Iran. The scale of the executions was not known to anyone at

the time. In September 1988 the Human Rights Commission's Special

Representative for Iran, Reynaldo Galindo Pohl, was overwhelmed with

complaints about a "wave of executions" and raised the issue with Iran's

permanent delegation at the UN52. Iran’s position however was complete

denial on the grounds that the source of information is MKO and it is

propaganda. Although Iran’s stance at the UN was to deny the allegations,

there are frequent referrals and speeches by the Iranian authorities53 at

the time, which can be interpreted as a justification to the mass murders.

Mr. Galindo Pohl called on the Iranian government to set up a human

rights commission to reply to what he described as "allegations" of

mistreatment and summary executions, and to allow his visit the country.

The government declined to address any of the allegations and instead

diverted him by raising academic questions about the compatibility of

sharia law with international human rights law, and historical quibbles

about whether there had been sufficient input from Islamic jurists in the

drafting of the Universal Declaration of Human Rights.54 In his interim

report to the General Assembly on 14 October 1988, Mr. Pohl clearly

mentioned, "a large number of prisoners, members of opposition groups

were executed” and alarmed the member states of the execution threat of

other members of the MKO and other opposition groups. The Iranian

Ministry of Foreign Affairs was also contacted by the UN Special

Rapporteur on extrajudicial, summary or arbitrary executions on the

                                                                                                               51 Amnesty International; UA235/88, 02/09/1988. 52 See Reynaldo Galindo Pohl, Interim Report annexed to Note by the Secretary General, ECOSOC Report, Situation of Human Rights in the Islamic Republic of Iran, A/43/705, 13 October 1988, 43rd Session, Agenda Item 12 ("Interim 1988 Report"), Section II. 53 In February 1989 Khomeini delivered an "historical message" about his former left-wing supporters and warned against feeling pity for "enemies of God and opponents of the regime". (Kayhan, 25 February 1989, 16) 54 Robertson, p.3

  16  

ground of Iran’s breach of Article 14 of the ICCPR, for its "extremely

summary, informal and irregular proceedings, failure to inform defendants

of specific accusations against them, lack of legal counsel, absence of any

instance of appeal and with irregularities that contravene international

standards of fair trial."55 Mr. Pohl was finally granted a 6 day visit to Iran,

but denied access to the prisoners he requested to see.

The issue was not given enough attention or concern in Mr. Pohl’s later

reports on the situation of human rights in Iran. 56 This of course

encouraged the Islamic Republic of Iran to get away with its breach of

international human rights law and avoid accountability at the UN for

respecting the right to life for its citizens, among other rights. It should

however be noted that Iran has not ratified the second optional protocol to

ICCPR, aiming at abolition of the death penalty, but nevertheless, in a

general comment on Article 6 of the ICCPR, the UN Human Rights

Committee has stated that Article 6 "refers generally to abolition [of the

death penalty] in terms which strongly suggest... that abolition is desirable.

The Committee concludes that all measures of abolition should be

considered as progress in the enjoyment of the right to life... "57

The right to life, guaranteed by customary international law and treaties to

which Iran is a party was quite deliberately and barbarically breached. The

second wave of apostate killings was also a breach of the right to life.

Apostasy in any event is not a crime for which the death penalty is

permissible in international law. Iran was also in breach of Article 6 (2) of

the ICCPR, where capital punishment must be reserved for serious crimes

with lethal or exceptionally serious consequences. The Human Rights                                                                                                                55 Amos Wako Report of 6 February 1989 (E/CN.4/1989/25) at paras 15, 142, 145-148. 56 His report on 13 February 1991 makes no reference to this. In his Final Report on the Situation of Human Rights in the Islamic Republic of Iran, 28 January 1993, E/CN.4/1993/41, para 281, he mentions that only 164 executions of political prisoners have taken place in 1992 57 UN Human Rights Committee (HRC), CCPR General Comment No. 6: Article 6 (Right to Life), 30 April 1982, para. 6.

  17  

Commission has consistently reiterated that capital punishment cannot be

imposed merely for political or religious allegiance58, nor can be imposed

for crimes committed when the individual was aged under 18, on the basis

of Article 37 of the CRC and Article 6 of the ICCPR. It is worth mentioning

that most of the victims of 1980s in Iran had been arrested for offences

committed when they were under 18.

                                                                                                               58 Robertson, p. 134

  18  

CHAPTER 2: Rules of the Game

Ruling the State

Before I talk about the jurisprudence in Iran and list the crimes punishable

by death sentence, I should provide you with a brief background on the

Government formation and politics in the Islamic Republic of Iran. My

focus is more on the judiciary system and its structure and the power

relations imposing on it.

Islamization came over Iran on the trail of a populist revolution that

gathered momentums in 1978-79 and overthrew the secular, authoritarian

regime of the Shah, Muhammad Reza Pahlavi. To sympathetic scholars the

rise of Islamism was indicative of the failure of secularization; that

assumed failure lent a new credence to Islamic cultural relativism. We

often heard that the sharia (Islamic law) and its principles provided

solidarity and sociopolitical motivation to Muslims who demanded “the

immediate application” of the sharia.

Human rights scholar Rhoda Howard has identified five theoretical

challenges in the 1990s to the universality of human rights: radical

capitalism, traditionalism, reactionary conservatism, Third World

nationalism (left collectivism), and status radicalism. The Islamic republic

of Iran has presented perhaps the strongest case of a combination of two

of these challenges, that of traditionalism and Third World nationalism.59

The central institution of the republic, after Ayatollah Khomeini’s

emergence as the leader of the Islamic movement with his own version of

Islamic rule, was to be velayat-e faqih (the vice-regency of the Islamic

Jurist). “In the absence of the Twelfth Imam, the faqih (Islamic Jurist, i.e.,

a Grand Ayatollah) was supposed to conduct the state’s affairs in                                                                                                                59 Afshari, pp.1-3

  19  

accordance with God’s laws. Khomeini assumed this role and became the

Supreme Leader, as Islamic Jurist. Velayat-e faqih, as envisaged by

Khomeini, was alien to democracy.”60

The Twelver Shiites have erected a hierarchy of Imams, who as the direct twelve descendants of the Prophet had theoretically inherited a touch of prophetic charisma, if not divine attributes, leaving behind ponderous legacies of sacrosanct words. In theory the clerics consider these twelve superhuman beings as the eternal, rightful leaders, spiritually as well as politically, of the Shiite community. Some three centuries after the death of the Prophet, the Last Imam went into an indefinite period of occultation, to return one day as the Savior. In the past few centuries, an obscure clerical theory maintained that until the return of the Last Imam, the Shiite ulema would be the de facto leaders of the community. [Over time,] an informal hierarchy of Shiite clerics emerged, at the top of which stood a few senior mojtaheds (Islamic jurists). In the twentieth century, they assumed the title Grand Ayatollah. Mojtahed is a cleric who, after a lifetime of religious learning, is capable of rendering ejtehad, an opinion on Islamic law, based on a set of traditionally recognized sources. Each practicing Shiite is supposed to choose and follow one mojtahed as the marja-e taqlid, source of emulation. Each marja-e taqlid (marja, for short) is supposed to be an autonomous authority, whose teachings and judgments are voluntarily accepted by his followers. No more than a few clerics could achieve that august status at any given time. However, from time to time, an especially distinguished mojtahed, on of the Grand Ayatollahs, received general acceptance by the others as the sole marja and his fatwas were universally accepted. The central institution of the Islamic Republic rested on that tradition and distorted it as well.61

Before clerics took total control over Iran in 1980, the provisional

government was to prepare a preliminary draft of the Constitution, taking

into consideration the provision of the UDHR. “The clerics in the Assembly

of Experts altered this document beyond recognition and submitted for

                                                                                                               60 Ibid, p. 15 61 Ibid, p. 14

  20  

ratification another draft in which all the rights provisions were burdened

by Islamic qualifications that purposefully remained undefined. The

constitutional provisions for the protection of civil and political rights

became limited and conditional.”62 This left the clerics with the opportunity

to define these unspecified Islamic qualifications according to their own

political requirements at any given period. The Islamic rulers enunciated

their own standards of rights in a lengthy Constitution and then flouted the

law when the interest of the clerical faction in power required it. The

facilely prevented any state accountability, even to their own Islamic

human rights organizations.63 They also got lucky with the ratification

process of the Constitution, which coincided with the taking of Americans

hostages amidst intense political situation and got approved through a

referendum. This was the beginning of the emerging theocracy and a

powerful tool to get rid of secular oppositions. Khomeini got the title of

Imam by his followers and became a marja. In no time he “envisaged

velayat-e faqih as the rule of the marja, and surely he saw himself

eminently qualified to assume the position. The Constitution defined the

position as befitting the one who possessed all the traditional qualifications

and seniority of a Grand Ayatollah plus political and personal leadership

abilities. Khomeini’s associates had tailored it for him. “64

Article 57 of the Constitution, divides the state powers into three:

legislative, executive and judiciary with independent functionalities from

each other. The Supreme Leader, velayat-e faqih, which has the highest

authority, however will supervise the three of them.65 Soon after, a new

body of the Guardian Council was established. The idea of establishing the

Guardian Council was to have a body composed of senior clerics

                                                                                                               62 Ibid, p. 16 63 Ibid, p. 11 64 Ibid, p. 17 65 Iran’s Constitution, Article 57

  21  

overseeing legislations passed in the Majlis to make sure they adhere to

the Islamic code. The Council convened for the first time after the 1979

revolution. The Guardian Council is composed of six qualified clerics, well

versed in Islamic jurisprudence, directly appointed by the Supreme Leader,

and six Muslim jurists experts in different areas of law, nominated by the

head of Judiciary, himself an appointee of the Leader and elected by the

majority vote in the Majlis. The Council could reject parliamentary bills

that it deemed contradictory to the sharia.66 As can be seen in the annex,

the Supreme Leader has the sole supervision through all power factions in

Iran, in one way or another. To further highlight the role of the Supreme

Leader at both levels of religious and state-related powers, I want to take

the example of Khomeini’s infamous fatwa (religious edict) in which he

reiterates the existence of the Islamic state supersedes all Islamic

ordinances. The fatwa goes further and says: “if a measure was in the

interest of the state and Islam, it could annul all other Islamic ordinances,

even prayer, fasting and the pilgrimage to Mecca.”67

Later on in February 1988 Khomeini created the Expediency Council,

whose member he appointed, and was given the authority to have the

final say on the legislative disputes between the Majlis and the Guardian

Council. This arrangement was accommodated by the amended

Constitution in 1989. 68 It should be noted that at present the Expediency

Council has no legislative power, nor it can interfere in all the Majlis

decisions, but it only has the last word in cases where there is a dispute

between the Majlis and the Guardian Council. As such, the nature of its

function is arbitration and not legislation. 69

                                                                                                               66 Ibid, Articles 91 to 99 67 Afshari, p. 20 68 Iran’s Constitution, Article 112 69 Adineh Abghari, Introduction to the Iranian Legal System and the Protection of Human Rights in Iran, British Institute of International and Comparative Law, 2008, p. 15

  22  

Judiciary and Islamic Jurisprudence

After the Sassanids period, Islam became the official religion of Iran and

as a result, all political, social and cultural affairs of the state, including the

judiciary, were transformed under the influence of Islam. “Islamic

jurisprudence (sharia) become the main source of legal rules and

regulations, the clerics got in charge of the judiciary posts during all this

period, and alongside secular (state) courts, Islamic courts are set up

whose jurisdiction varied in the course of history.”70

The Iranian legal system is based on the Romano-Germanic law and the

Islamic law, which is the sole criterion for legislation.71 Article 167 of the

Constitution bounds the judges to judge each case on the basis of the

codified law. In cases of ambiguity, the judges are required to primarily

look into credible sharia principles. The sources of Iran’s codified

legislation are the law (mainly the Constitution), the jurisprudence (judicial

procedure of courts), the custom and the doctrine. The Islamic sources on

the other hand consist of the Koran (first and most important source),

Sunna, consensus and reason.72

In 1979, the founders of the IRI labeled the previous regime and all its

institutions secular and had the ‘Islamization’ of the judiciary as one of its

objectives, called the ‘purification’ of the judiciary’s administrative and

judicial organization.73 In doing so, the clerics whom Khomeini appointed

as Islamic judges conducted “Revolutionary Courts” in a rather haphazard

way in applying what they understood to be Shiite penal law.74

                                                                                                               70 Ibid, p. 36 71 Iran’s Constitution, Article 4 72 Abghari, pp. 63-69 73 Ibid, p. 51 74 Ibid, p. 68

  23  

Islamic Punishments

Article 12 of the Islamic Penal Code lists five types of punishments:

The hodud category defines punishment for crimes against divine will, such

as rebellion against the Islamic state, apostasy, various sexual crimes, and

consumption of alcohol. It includes stoning, execution, lashing and shaving

the head.

The next is the qesas laws (retribution). Until 1991, when the clerics

bowed to the reality of the contemporary state and modified the qesas

laws, they in effect privatized punishments, by allowing the victim or

his/her family the prerogative of deciding the punishment for homicide and

aggravated assault. Accordingly, private parties could demand punishment

equal to the harm the victim had suffered. In a homicide, the victim’s

family could demand the death penalty or accept financial compensation

based on a specific “Islamic” formula, diyat, according to which the worth

of a male or female Muslim was determined (blood money). The 1991

modification of the qesas laws stipulated prison terms when the private

plaintiff chose to forgive. Qesas includes limb for limb and life for life.

The third category of laws, tazir, (discretionary punishments) covers

crimes not included in the first two categories, and their punishments are

left to the discretion of clerical judges. As it turned out, this category

covers many of “minor” crimes that are commonly committed in urban

societies.

The fourth category of the diyat laws provides a rather primitive chart for

compensation to victims of homicide, assault, and battery.

The fifth category is deterrent punishments, which are not different in

nature from the tazir laws. Tazir includes imprisonment, fine, lashing,

  24  

reprimand and rejection, execution, ban on social rights for a certain

period, banishment or enforced domicile. 75

Islamic Penal Code provides the following legal definitions for qesas,

hodud, and tazir:

Hodud: "Hadd are punishments the type, quantity and quality of which

have been determined by the sharia."76

Qesas: Article 14 the Islamic Penal Code defines qesas as: "a punishment

to which the offender is sentenced and it must equal their crime."77 Article

269 of states: "Severing of a limb or injury to it, if intentional, deserves

qesas."78 Article 205 states: "Intentional murder leads to qesas." The

quality, type and quantity of this punishment have been determined by the

sharia.79

Tazir: "Tazir is a correctional measure or a penalty the type and quantity

of which has not been determined by the sharia and it has been assigned

to the opinion of the judge, e.g. imprisonment, fine and lashing, where the

number of lashes should be less than hadd."80

By the consensus of Shiite clerics, tazir is some kind of disciplinary

measure and its goal should solely be correction, not beating or causing

pain. However, the Islamic Penal Code has included punishments such as

execution as part of the tazir,81 which is in contravention of the sharia. In

some instances, the tazir punishments have been assumed as hodud,

                                                                                                               75 Afshari, p. 66 76 Islamic Penal Code, Article 13 77 Ibid, Article 14 78 Ibid, Article 269 79 Ibid, Article 205 80 Ibid, Article 16 81 e.g. the death penalty in the Law for Disruption in the Economic System

  25  

which eventually increased the frequency of the death penalty in Iranian

laws.

List of Crimes Punishable by the Death Penalty

The Iranian laws have provided for the death penalty in the case of the

following offences. Taking into consideration the three categories of

Islamic punishments, the first 10 listed crimes leading to the death penalty

in Iranian laws, fall under the tazir laws.

1. Repetition of fornication (zena):"If a woman or a man commits

adultery several times, and the punishment is implemented every time,

they shall be killed on the fourth time."82

2. Repetition of tafkhiz (Sexual conduct without penetration): "If

tafkhiz and similar acts are repeated three times and the punishment is

implemented every time, the punishment for the fourth time is death."83

3. Repetition of lesbian acts: "If lesbian acts are repeated three times

and the punishment is implemented every time, the punishment for the

fourth time is death."84

4. Repetition of qadhf (false accusation of another of fornication or

sodomy):"If somebody accuses others of having committed fornication or

having been sodomised, and the punishment is implemented every time,

they shall be killed on the fourth time."85

                                                                                                               82 Ibid, Article 90 83 Ibid, Article 122 84 Ibid, Article 131 85 Ibid, Article 157

  26  

5. Repetition of drinking alcohol: "If a person drinks alcohol several

times and receives punishment every time, they shall be killed on the third

time."86

6. Repetition of theft: "The punishment for the fourth time shall be

death even if theft takes place in a prison."87

7. Economic terrorist: Articles 1 and 2 of the Law for Punishment of

Disruptors of the Economic System   stipulate the death penalty for

disruption of the economic system, which is regarded as economic

terrorism.

8. Espionage: Article 12 of the Law for Punishment of the Offences of the

Armed Forces has recognized the military personnel who provide

information to the enemy as mohareb88, which may lead to death penalty.

The law, however, in different cases, e.g. articles 501, 502 and 505 of the

Islamic Penal Code, mentions the offence of espionage.

9. Treason. The Law for Punishment of the Offences of the Armed Forces

of 1992 has in numerous cases explained the offences and has added in

every case that the offenders are "regarded as mohareb". In addition to

that, Article 504 of the Islamic Penal Code has deemed as moharebeh89

the effective inciting of other persons who are somehow serving the Armed

Forces to rebel, escape, and surrender with intent to topple the

government or to bring about the defeat of national forces against the

enemy forces.

10. Drugs: Planting poppies or coca, or cannabis with intention to produce

drugs, on the fourth conviction; smuggling more than 5 kilograms of                                                                                                                86 Ibid, Article 179 87 Ibid, Article 201 88 Moharebeh is the action of a mohareb 89 Raging war against God; a person who is considered to fight God is mohareb

  27  

opium, cannabis or grass etc into Iran; buying, keeping, carrying or hiding

more than 5 kilos of opium and the other aforementioned drugs, on the

third conviction; smuggling into Iran, dealing, producing, distributing and

exporting more than 30 grams of heroin, morphine, cocaine or their

derivatives are punishable by death.90

11. Fornication. Article 82 of the Islamic Penal Code has provided for the

punishment of the death penalty for fornication for the first time in the

following cases: incest, fornication with stepmother (the man shall be

killed), fornication of a non-Moslem with a Moslem woman (the man shall

be killed), and rape (the rapist shall be killed).91

12. Sodomy: The punishment for sodomy involving penetration is death

provided that the two parties are adults, sane and consenting.92

13. Apostasy (insulting sanctities): Facing with provisions set in the

international human rights instruments, the legislator in Iran has backed

away on the issue of apostasy but has stated it in a different form under

the title of insulting the sanctities. Article 513 of the Islamic Penal Code

states: “Anybody who insults the sanctities of Islam and/or any of the

grand prophets or the infallible imams or Her Excellency Sadiqa Tahereh93

shall be executed if they are deemed to curse the prophet; otherwise they

shall be sentenced to imprisonment from one to 5 years."94

14. Moharebeh: “The punishment for moharebeh and ‘corruption on

earth’ is one of the following four: 1) killing; 2) hanging from the gallows;

3) first amputation of the right-hand and then of the right foot; 4)

                                                                                                               90 The Law for Amendment of the Anti-Narcotics Law and Annexation of Other Articles to it,” of 25 November 1988 of the Expediency Council 91 Islamic Penal Code, Article 82 92 Ibid, Articles 110 and 111 93 Prophet Mohammad’s daughter 94 Baghi, p. 32

  28  

banishment". 95 The judge is empowered to choose any of the four,

whether the mohareb has killed or wounded anybody or captured their

property or has not committed any of these actions.96 Articles 183, 185,

186, 187, 188 and 504 have specified the characteristics of a mohareb.

15. Intentional murder. Article 205 of the Islamic Penal Code states:

“Intentional murder is punishable by qesas under the articles of this

chapter…" Killing by means of distribution of decayed food or feeding

decayed foodstuff (article 176 of the Islamic Penal Code) and killing by

throwing acid are also instances of intentional murder.

In the resolutions issued against Iran and criticisms of the human rights situation in the last 20 years, they have stated that execution for fornication/adultery, drugs and rape is in contravention of Article 6 of the International Covenant for Civil and Political Rights. The answer has been that Article 6 of the Covenant has not defined ‘serious crimes’ and there is no criterion and authority to discern ‘serious crimes’. Therefore, the understanding of this notion may be different in different societies. For example, adultery may not be considered among the ‘most serious crimes’, but it may be considered one of the ‘most serious crimes’ in the Islamic states.97

In the following chapter, I am going to show that some of the punishments

listed above are in direct contravention of the international standards and

the death penalty for them lacks legal foundation.

                                                                                                               95 Islamic Penal Code, Articles 190 96 Islamic Penal Code, Articles 191 97 Baghi, p. 33

  29  

CHAPTER 3: Abolition Is Possible

Death penalty can be opposed from three standpoints. The first is the

standpoint of human rights and human dignity arguing that such

punishments institutionalize brutality in the society through normalizing

the killing of humans by humans under the pretext of punishment of

criminals.

The second standpoint argues the possibility of taking wrong decisions.

There are examples of having a man imprisoned for years and after a

while a new piece of evidence is found which leads to his freedom. As

death penalty is irreversible once implemented, there is no way to bring

the man to life even if he is found innocent after years.

The third standpoint, which is a bit controversial, says that it is not fair to

execute such criminals, as the pain they will go through once executed is

not comparable to the pain and suffering they have caused to their victims

and their families. Therefore, it is argued that death penalty is considered

to be a reward for them rather than a punishment.

Although all three arguments are meant to refute the death penalty, the

first one strongly examines the inability of the death penalty in preventing

crimes. In other words, death penalty is just wiping out the problem

instead of solving it. The second one is absolutely logical and probable.

Several mechanisms can be put in place to avoid such mistakes or reduce

their prevalence, which I have somehow discussed them later in this

chapter. However, the third standpoint is where justice faces dilemma; as

the viewpoint to refute the death penalty here is to make the criminal

suffer more over years of his harsh imprisonment rather than just a

moment of execution. The question here would be what remedy should be

  30  

in place to restore justice under such circumstances. That of course is a

very interesting point which requires more research, attention and studies.

Iran, Sharia and Abolition of the Death Penalty

Given what was described in the last two chapters about Iran, its position

towards the international commitments, and the conditions under which it

is governed, a demand on such a drastic change, i.e. abolition of the death

penalty, in the current legal system can only be successful if justified

accordingly within the religious culture and the support of local tools and

endorsement of Islamic principals. Ignoring the role of Islamic

jurisprudence in proposed recommendations can be easily overruled and

backfire. It is evident that capital punishment is prescribed for some

crimes in Islam, however implementation of death penalty can be

postponed or suspended under certain circumstances.

The death penalty was common 1,400 years ago. Under the Jewish religion

and the traditions of Arabs, the murderer would be punished solely by

qesas, but the Islamic sharia took a more advanced step, revoked the

exclusiveness of punishment to qesas, added the emphasis on pardon to it

and ruled out the death penalty in many cases. At the time, Islam

endorsed a few applicable laws that were not in the interest of humans or

were contradictory to human dignity, but it adopted the "gradual" and

"restraining" method and moved in the direction of undermining and finally

abolishing them. This group of decrees has up to now been viewed from

the angle of gradual forbidding of an action. The death penalty was so

widespread at the outset of Islam the abolition of which would prompt the

risk of denial of the sharia as a whole. Any new faith aiming to advance

the society should be presented in an acceptable way. There is another

side to the death penalty, which is the creation of the private right that

could not be denied its owner in the context of qesas. The compensational

  31  

viewpoint and rehabilitation of the offender, forgiving and pardon and

forgoing the punishment represent the growth of human intellect. That is

why, on the one hand, the Koran prescribes qesas, which is a mild

approach to the strong prevailing norms because, according to the

exegetes, this punishment intimidates and deters the offenders and,

consequently, guarantees life; furthermore qesas does not violate private

right. On the other hand, the Koran emphasizes pardon, which points to an

ideal and optimal orientation. Therefore, some kind of restraining method

appears to be necessary for transition from the present to the optimal

situation.

Before I go further in discussing the “gradual” and "restraining" methods

of the Islamic jurisprudence with the aim of reducing the scope of an

action by posing numerous regulations and restrictions and conditions to

lead to its final stoppage, I am going to analyze the crimes punishable by

death in the previous chapter and argue whether they are even being

practiced in the Iranian judicial system. A quick review over the conditions

set forth for some of the said crimes for them to be punishable by death,

make it extremely difficult to happen. The question is, why should we even

have them stipulated in the regulations and produce this horrible image of

sharia and Iran’s death machine. A brief analysis reduces the items and

takes us to the core of the problem for which I will come up with a set of

recommendations.

With due consideration to various types of Islamic punishment, explained

in depth in the previous chapter, it should be noted that the death penalty

in Iranian laws for the first 10 offences concern tazir, whereas the

  32  

evidence for such a penalty for offences number 1 through 6 is the

consensus of the Shiite and their beliefs, rather than Koran98.

Crimes Concerning Tazir Punishments

I am going to start with the offences punishable by death due to repetition

of them. The example I am elaborating in this category is repetition of

drinking alcohol. The act itself, i.e. alcohol consumption, is prohibited in

Islam and has been stated in the Koran in three verses. The first verse

shows that Allah dislikes alcohol99. Even though this verse was not a

command to stop drinking alcohol, many people stopped drinking it as

soon as this verse was revealed, in order to abstain from something

disliked by Allah. The second verse prohibited people from praying when

drunk100, and soon after, the third verse prohibited alcohol completely101,

but nowhere in Koran is mentioned the death penalty as the punishment

for drinking alcohol and this does not have a Koranic foundation. Another

point that needs to be raised here is that the death penalty for repetition

of drinking alcohol is only permitted if the hadd is implemented in the first

and second instances.

Similarly general prescription of the death penalty for repetition of

fornication, sodomy, lesbianism, qadf and theft for the third and fourth

times not only lack a Koranic evidence but there does not exist a specific

hadith102 document specifying the type of such offences. They are only

based on general hadiths, which indicate that perpetrators of capital sins

                                                                                                               98 Baghi, p. 39 99 The Noble Koran - Al-Baqarah 2:219 100 The Noble Koran – An-Nissa 4:43 101 The Noble Koran - Al-Ma'idah 5:90 and 5:91 102 Hadith implies the narration of a saying, or of an act, or of an approval (Taswib) of the Prophet, irrespective of whether the matter is authenticated or still disputed. Taswib implies that while doing something in the presence of the Prophet, a Muslim acted in a particular manner and the Prophet observed it and did not disapprove it. In this way, that person received the tacit approval of the Prophet regarding that particular action.

  33  

will be killed on the third or fourth time of implementation of hadd. In fact,

such crimes (listed as 1 through 6) concern cases that have not come to

court in the lifetime of Islamic judiciary and their implementation has been

improbable. They have mainly been a form of legislation and sharia decree

for subjective and unreal probabilities. Therefore, preserving them in the

laws has no consequence other than increasing the number of death

penalty titles. On the other hand, as previously stated, death penalty

cases under the tazir have been formulated by humans (especially if

considered that they should be less than the lowest level of hadd) and

they have nothing to do with the sharia. Absence of frequency of the

invoked verses, the need for caution regarding blood and the general

decree of the Koran, "whoever killed a human being for other than

manslaughter or corruption on the earth, it shall be as if he had killed all

mankind103“ (which authorizes qesas and corruption on earth as the only

reasons for killing) dismiss the death penalty in case of repetition of

offence for the third and four times. Therefore, death penalty for these

crimes may be abolished without any worries, controversies and

discussions.104

To further highlight the improbability of such crimes, below I will explain in

details the conditions set for implementation of punishment for theft in the

first three instances, which need to be implemented prior to execution of

the death penalty for its repetition in the forth time.

As mentioned before, prescription of death penalty for theft on the fourth

time, lack Koranic foundation and also occurrence (when hadd was

implemented three times and theft took place for the fourth time). In

addition to that, there are prerequisites in the law and sharia for

implementation of punishments for theft, even for the first time that make                                                                                                                103 The Noble Koran - Al-Ma'idah 5:32 104 Baghi, p. 40

  34  

unlikely the amputation of the thief's hand (fingers of the right hand

except the thumb) on the first time let alone the death penalty on fourth

time. Theologians have stated 10 or even more conditions required to

prove the occurrence of the theft offence.

1. The stolen amount to require the implementation of hadd should be in excess of one quarter of dinar, i.e. 864 g of gold or the equivalent of its price.

2. The item should be stolen from a guarded and closed or locked place.

3. The thief should be sane.

4. They should be mature.

5. They should be of free will.

6. It should not be the year of famine, starvation and hunger. Theologians have used the term 'year of famine' but Ayatollah Montazeri says: "They should not have been forced to steal out of urgency and desperation" and gives the year of famine, shortages and starvation as an example for it. Thus, the criterion is lack of compulsion and desperation.

7. They should have stolen the item or property for themselves not for others.

8. It should not be a case of a servant stealing from their master. [Considering the expiry of the topic i.e. the servant and master system and the possibility of revising and generalizing the topic, perhaps we can say a worker stealing from the employer (as some theologians have explicitly used "stealing by a hired person" which is the same as worker and wage laborer) is not eligible for hadd].

9. The stealing of a child from the properties of their father

10. The stealing of one partner from their partner

11. Stealing from the public property or war spoils equal to their own share

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12. The hired person steals something available to them

13. The guest steals something available to them

14. The item should be stolen from a visible pocket. The last seven instances (8 to 14) are not subject to hadd, although a thief is punished in some of those instances. Shiite theologians have mostly stated 10 prerequisites and most of the above-mentioned requisites are common among them. In fact, if all the above conditions are fulfilled except one, hadd shall not be implemented.105

Article 198 of the Islamic Penal Code has also listed 16 conditions for

implementation of hadd. It goes without saying that the probability of the

fulfillment of those conditions is very low.

More importantly the Shiite consensus on this matter is that a person in

need shall not be subjected to qesas if they kill somebody for refusing to

give them the food they have requested. Nevertheless, it should be noted

that the punishment of a thief on the first time depends on the

aforementioned conditions and a thief is sentenced to death on the fourth

time. As you can see there are so many conditions and stipulations for

implementation of the hadd on first-time theft that rule it out and make its

occurrence unlikely; let alone the implementation of the hadd concerning

death penalty on the fourth-time theft. Therefore, stipulating such a

penalty (death penalty) in law is useless and can be omitted; as such

peculiar conditions make even the amputation (hadd on the first instance)

unlikely let alone the requirements for the death penalty.106

                                                                                                               105 Ibid, p. 43 106 Ibid, p.45

  36  

Drug Related Offences

Amnesty International on its exclusive study on executions for drug

offences in Iran notes: 107

“Executions of alleged drugs offenders have rocketed in Iran since mid-2010. They have continued at a high rate, with the Judiciary announcing a crackdown on drug trafficking in October 2010 and following amendments to the Anti-Narcotics Law that came into force in January 2011. Many of those convicted have been killed in secret mass executions inside prisons, sometimes with their family and lawyer having little or no warning. Most, if not all, were condemned to death after grossly unfair trials, including being denied access to a lawyer and having no right to appeal.

The Iranian authorities routinely violate a wide range of international standards relating to the use of the death penalty, including that this ultimate punishment may only be imposed for the most serious of crimes after fair trials, and must not be a mandatory penalty.”

Death penalty for drug offences is among the most controversial issues,

which has lately been more investigated by Amnesty International and

Human Rights Watch. This was of particular interest and focus not only for

being the highest contributing factor to the rise in numbers of death

penalty, but also because some European states are funding Iran through

UNODC to support Iran’s anti trafficking initiatives. Amnesty International

reports108 that UNODC has worked with the Drug Control Headquarters

and the Iranian Judiciary over drafting the revised Anti-Narcotics Law,

which came into force in January 2011, and which extended the scope of

the death penalty, despite UNODC’s objectives over law reform. This issue

however was not given required attention or concerns by senior UNODC

officials which as a UN body not only is mandated to comply with the

                                                                                                               107 Amnesty International, Addicted to death: Executions for Drug Offences in Iran, London, December 2011 p. 5 108 Ibid, p. 11

  37  

international human rights standards but also required to promote

adherence to it within its framework in the countries operating.

The Iranian authorities have abused this offence to justify execution of

political prisoners in some instances as well. There have been instances

under which authorities have accused political activists of drug smuggling

to conceal the execution of political prisoners.109

In arguing for abolition of the death sentence for drug related offences I

should open a new chapter on the role of society in promotion, and not

prevention of this crime and the insight of the law makers in Iran to punish

individuals as a way to cure the society. In the Islamic legal system,

crime and punishment are personal. In other words, in attributing the

crime to its perpetrator, attention is paid only to the role of the individual

and its action without taking deep notice of the conditions and causes of

the offence, e.g. the role of the society, the environment and external

factors. Amnesty International highlights this fine point too:

“Arrests of suspected drug traffickers in Iran have soared in recent years, in part as a result of international assistance to try to stem the flow of narcotics from Afghanistan. Those most at risk of execution are from the most disadvantaged sectors of society: impoverished members of the majority Persian-speaking community; members of ethnic minorities that suffer discrimination in law and practice in Iran; and foreign nationals, particularly Afghans, who come from countries where economic opportunities are limited. Women are among those who have been sentenced to death, some of whom may have resorted to drug smuggling to feed their families or been lured or duped into carrying drugs for others while the drug barons often avoid arrest and prosecution.”110

                                                                                                               109 Ibid and Amnesty International, Iran: Political Prisoners Reportedly Executed as Drug Traffickers, 15 September 1989 110 Ibid, p. 5

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Therefore, phenomena such as drug offences, theft or embezzlement

(economic terrorism) are not issues that can be resolved solely by

punishing the perpetrators. Article 363 of the Islamic Penal Code indicates

that: ”In case of combination of perpetrator and cause in a crime, the

perpetrator is responsible unless the cause is stronger than the

perpetrator." The perpetrator is subjected to qesas if deemed stronger

than the cause; but in case the conditions and the social structure and

factors beyond the power of the individual were effective on their

commission of the crime and were stronger than the perpetrator, there

shall be a different situation. The important question comes to mind is

when problems like unemployment and inflation push the people into

unbearable situations that leave them no choice but to commit an offence

(e.g. theft, embezzlement, bribery etc) or to participate and assist in

them, will it still be possible to punish a person for a socially rooted

offence enforced on them, which is ultimately related to the national

administration system, even with the death penalty?

Narrowing down the death penalty for drug offences, it should be noted

that it is disproportionately prescribed for the poorest, most vulnerable

and least educated members of society. It takes the lives of offenders

whom were dragged to this upon necessity. Poverty and unemployment

play a very important role in providing individuals to commit drug

trafficking. The rationale for using the death penalty for drugs offences is

that it will deter traffickers more effectively than other punishments. But

despite the thousands of executions carried out in Iran there is no clear

evidence that the death penalty has had any identifiable effect in

alleviating drug trafficking and abuse. On the contrary, Iran has seen a

  39  

relentless rise in its addiction rates year by year.111 Therefore, death

penalty is not a cure for the social illness of addiction.

From another perspective, implementing ruthless death penalty for drug

offences entails other risks where traffickers faced with a possible death

penalty would more readily kill to avoid capture, increasing the danger to

law enforcement officials.

Having said all this, it should also not to be forgotten that in addition to

the specific and private pardons, there are 11 amnesty occasions available

in the Iranian laws112 the exceptions of which include espionage, security,

kidnapping offences and cases with private plaintiffs. One group of people

unconditionally eligible for such amnesties once a year is drug-related

convicts (not administrators of large drug gangs). Emadeddin Baghi in his

book, Right to Life argues that numerous examples of people exist whose

death sentence has been mitigated to life imprisonment on first pardon

and then to 15 years on the second pardon and then five years on the

third pardon and they have been freed. Now the question is: if the death

sentences of drug convicts are to be practically revoked by such ploys,

which is a desirable matter, why do they issue a death sentence in the first

place rather than a five-year imprisonment, then mitigate it to 5 years and

enshrine something which is practically not implemented in the national

laws? Is it not more proper to revise this case by amending the law and

abolishing the death sentence?

Crimes Concerning Hodud and Qesas Punishments

What I discussed so far concerned tazir punishments. In this section the

crimes listed 11 through 15 that are punishable by death and concern                                                                                                                111 Ibid, p. 38 112 Details of the occasional amnesties have been outlined in chapter 2 of the Rules of Procedure of the Amnesty and Pardon Commission by the head of the judiciary and have been ratified by the supreme leader, based on the powers bestowed under article 110 of the Constitution

  40  

hodud and qesas, the type, quantity and procedure for which have been

determined by the sharia will be further discussed. Fornication, sodomy

and apostasy appear only in fiqh based on the inference of theologians

invoking sunna (tradition) and hadith. They do not have Koranic

foundation. There is no decisive reason for it in the definitive tradition,

which has been given credibility on par with the Koran, or is difficult to find.

However, there is certainly no Koranic foundation to serve as definitive

and principal criterion. There are differences of opinion on the said penalty

among the Islamic schools and even among the Shiite theologians.

Fornication: The Islamic law describes this offence in different forms: 1)

fornication of a woman with a child; 2) fornication of a man with a child or

with a mad person; 3) fornication of a compelled person; 4) fornication of

married man and married woman113; 5) incest; 6) fornication of an infidel

with a Muslim woman; 7) rape (whether the woman is married or not); 8)

fornication with stepmother in which case the male fornicator shall be

killed.

The punishments stipulated for the first three instances are flogging,

banishment and shaving the head (only of the man). The punishment for

the fourth instance is stoning, which can usually lead to death. The

punishment for the last four cases (incest, fornication with stepmother,

fornication of an infidel with a Muslim and rape) is death. It should be

noted that the above punishments are specific to the Islamic law114. The

focus of this study is on instances punishable by death. Let us first find the

roots of these instances in the Koran. The first verses that were revealed

for the punishment of fornication were as follows:                                                                                                                113 The new Islamic Penal Code is discreet on the punishment of stoning for this and the stoning punishment can still be enforced at the discretion of the judge 114 Even the Iranian Public Penal Law, which had originated in Western laws, had foreseen negligible punishments for this offence. For instance, Article 212 of that law provided for imprisonment ranging from six months to 3 years for illicit relations between a married woman and a strange man, provided that the woman's husband complained, otherwise the case could not be prosecuted

  41  

“Those who commit prostitution of your women - bring against them four [Muslim witnesses] from among you. And if they testify, confine the guilty women to houses until death takes them or Allah ordains for them [another] way. And the two who commit it among you [Muslim men or women], dishonor them both. But if they repent and correct themselves, leave them alone. Indeed, Allah is ever Accepting of repentance and Merciful.”115

These verses were superseded by another verse that intensified the

punishment for fornication. The only verse in the Koran that has

determined the punishment of fornication for both parties provides: “The

woman or man found guilty of adultery or fornication - flog each one of

them with a hundred lashes”116. Baghi argues that the ‘al’ before zaniyeh

and zani117 indicates that various types are meant and other conditions

have been obtained from sources other than the Koran.   On punishment of

adult married adulterers, scholars view varies from flogging and stoning to

killing and some set the condition of implementing it only at the order of

the infallible imam.

Another important point is that this deed has been regarded as a right of

Allah and if a person repents their sin they shall be forgiven. Perhaps the

aspect concerning the right of Allah means that only God can understand

the real motives of the deed and humans cannot judge the issue except in

cases of rape and immature and insane persons.

In practice, numerous conditions should be fulfilled to prove the occurrence of this offence and hence to rule a punishment for it. If found guilty through confession, the confession should take place four times in four sessions at different times (some theologians have accepted four confessions in one session) and if the defendant withdraws the confessions later, the punishment of stoning and killing will not be valid. Furthermore,

                                                                                                               115 The Noble Koran – An-Nissa 4:15-16 116 The Noble Koran – An-Nur 24:2 117 Female and male fornicator respectively

  42  

pubescence, sanity, free will, intent and explicitness are five conditions for the correctness of confession. If proof is achieved by taking evidence, it is conditional upon 1) being married; 2) having access to their spouse; 3) being sane; 4) pubescence; 5) being of free will and having committed the deed without force and coercion; 6) having knowledge of the decree; 7) being aware of the subject; 8) claim of lack of awareness of the decree or the subject shall be accepted without witness with oath if it is deemed likely to be true (article 66 of the Islamic Penal Code); 9) testimony of four witnesses; 10) all the four witnesses must be just and the offence shall not be proved if any one of them is not just; 11) all the four witnesses must have simultaneously witnessed the act of fornication and not even one testimony should have time difference with the others; 12) all the aspects and details of the four testimonies must conform with each other and, for example, if one or two persons report from a different place or angle, the offence shall not be proved; 13) all the four persons must have well observed the action; 14) If there are gaps in conditions 4 to 8 and if any of the four persons give a different narration, the witness or witnesses shall be punished and receive the hadd punishment for qadf.; 15) The witnesses should have come forward with free will and choice without any coercion.118

Due consideration to the conditions stipulated in fiqh as mentioned above

shows that proving such a deed is almost impossible. In other words, the

intention has not meant to prove fornication and to implement the death

penalty but only to state the remarkable indecency and immensity of the

sin. Another evidence for this hypothesis is that adultery is usually

committed in secret and it is useless to impose punishments for it.

In the case of rape, under article 82 of the Islamic Penal Code, the

punishment of killing is implemented on the coercing party regardless of

age and marital status. There is no Koranic reason for it in the fiqh and it

is based only on the consensus of the theologians and hadiths.

                                                                                                               118 Baghi, p. 52

  43  

Sodomy: Sodomy, like fornication, has different forms and the death

penalty has been determined (for both parties) only for pubescent

perpetrators of sound mind and free will; even though some theologians

have adopted caution and prescribed the death penalty only for married

perpetrators who have access to their wife without difficulty. Ways of

proving sodomy are similar to ways of proving fornication except that,

according to some theologians, testimony of women is not accepted119.

Although there are verses in Koran prohibiting sodomy but there is no

Koranic evidence for prescribing death penalty for it and the harshest legal

position Koran takes can be found on: “And the two who commit it among

you, dishonor them both. But if they repent and correct themselves, leave

them alone. Indeed, Allah is ever Accepting of repentance and Merciful.”120

Apostasy: Apostasy and its condemnation has been mentioned in the

Koran, but the death penalty for an apostate has not been stated in any

verse and the evidence in hadiths do not point to the execution of the

apostates in tradition, because in cases that an apostate has been

executed, the principal reason has not been their change of belief but

other offences, e.g. murder and corruption on earth, which they had

committed subsequent to apostasy. Even though many Shiite and Sunni

theologians have deemed the decree for an apostate to be their death, the

Islamic Penal Code has avoided mentioning it. Only cursing the prophet,

which is one of the instances of apostasy, is punishable by death. Of

course the issue of descent is not confined only to innate and parental

apostates and it includes also non-Muslim persons. It should also be noted

that theologians have differentiated between cursing and insulting and

have determined this punishment only for cursing which is more specific

than insulting. However, the decision is left in the hand of the judge to

                                                                                                               119 Islamic Penal Code, Article 119 120 The Noble Koran – An-Nissa 4:16

  44  

decide on this vaguely defined crime. Some theologians argue the mere

reason of questioning the religion or having doubt about it does not make

a person apostate. Apostasy is referred to in Koran in 5 different verses

but not a single one of them prescribe a punishment for it, let alone the

death penalty. It can also be argued that taking somebody’s life for any

reason other than intentional killing of an innocent is in conflict with Koran.

On the other hand referring to: “There shall be no compulsion in

[acceptance of] the religion. The right course has become clear from the

wrong. So whoever disbelieves in Taghut and believes in Allah has grasped

the most trustworthy handhold with no break in it. And Allah is Hearing

and Knowing121” one may wonder how come when the Koran gives the

human a freewill to choose between religions, sharia can prescribe death

penalty for converting from Islam to any other sect or religion. There is no

reasoning in giving the people the option between Islam and the death

penalty. This has no Koranic evidence, nor logic.

Another fine point, which has been the case over the last couple of years

in Iran, is framing political activists and reformists of apostasy offences

and having them faced with the death penalty. As previously mentioned,

the judge has a free hand on the offence of apostasy and can rule that a

convict, for his beliefs and expressions, is an apostate, simply because he

has questioned ideological foundations of the Islamic Republic of Iran. A

very sensible example of it is the fight for abolition of the death penalty in

law and practice in Iran. It is not easy for activists inside Iran to campaign

on the abolition of the death penalty in general as they can be convicted of

apostasy for questioning and undermining the sharia on that matter.

Therefore, whatever campaign we have been witnessing in Iran has been

on abolition of the death penalty for individual cases to avoid such

accusations.                                                                                                                121 The Noble Koran – Al-Baqarah 2:256

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Qesas for Life

For all the crimes analyzed so far, my main source of argument has been

Koran, because that it the fundamental source of the sharia law and the

laws and regulations being practiced in Iran. On the other hand, as

mentioned earlier, denial of its decrees and verses might be interpreted as

apostasy and consequently my recommendations will not be effective and

practical within the Iranian context. Following the same pattern, we have

seen that there is no Koranic evidence for the punishing the previously

described crimes by the death penalty. However, the death penalty has

been decreed in the Koran only in two instances: 1) moharebeh and

corruption on earth; 2) qesas.

Mohareb: The clear evidence stipulated in Koran states: “The punishment

of those who wage war against Allah and His Messenger, and strive with

might and main for mischief through the land is: execution, or crucifixion,

or the cutting off of hands and feet from opposite sides, or exile from the

land: that is their disgrace in this world, and a heavy punishment is theirs

in the Hereafter122"

The first important point deserving attention here is that moharebeh and

‘corruption on earth’ are two vague terms frequently used for issuing

death penalties for oppositions and political dissidents. Anybody who

commits the following vaguely-worded offences on an ‘extensive level’

shall be found to be ‘corrupt on earth’ and receive the punishment for

moharebeh: actions against the internal or external security of the

country, disruption of the economy, arson, destruction and terror,

distribution of dangerous poisonous and microbiological matters, and

                                                                                                               122 The Noble Koran – Al-Ma’idah 5:33

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establishment of prostitution and corruption centers.123 Controversies exist

in the law where a mohareb shall receive the death penalty if he killed

somebody. In the meantime if it is not clear whether or not he has killed

anybody, he shall be sentenced to death if found guilty by the judge for

being a member to any group that wages armed insurrection based on

political theory against the Islamic Republic of Iran. In that case he will be

regarded as mohareb and sentenced to death.

Going back to the nature of the crime and its Koranic punishment

according to Sheikh Toosi, "all the theologians have said that this verse

refers to bandits, i.e. robbers who draw guns on the people and frighten

them on the roads, in the seas and deserts"124. In addition to that,

different interpretations of Koran read that moharebeh against God and his

prophet means “corruption on earth” through disrupting public security

and banditry not moharebeh in absolute terms against Muslims. A number

of theologians have linked the implementation of the death penalty for

mohareb to the occurrence of murder, which is why the decree for

moharebeh becomes part of the qesas and the general ruling of the Koran

prevails in this regard: ”Whosoever kills a human being for other than

manslaughter or corruption on the earth, it shall be as if he killed all

mankind”125. However, the death penalty on mohareb is issued for murder

and crime, has two important differences with qesas that make its

implementation less likely than the qesas. The first differences is that

there are three choices for qesas but four (perhaps even five) choices for

punishment of moharebeh, i.e. execution of a mohareb who committed

murder and was actively involved in corruption and banditry is not a

definitive matter but an optional matter. It is possible to change the death

                                                                                                               123 International Federation for Human Rights (FIDH), Iran/Death Penalty: A State Terror, April 2009, p. 17 124 Baghi, p. 56 125 The Noble Koran – Al-Ma’idah 5:32

  47  

penalty to banishment or even have them pardoned. We would face five

choices in the decree for moharebeh if we added the choice of pardon, and

to the four choices stated in the verse (killing, crucifixion, amputation and

banishment).

The second difference is that qesas is a private right, but the murder

carried out in the case of moharebeh is not a private right but a public

right at the power of the judge who may implement it as they wish or

pardon the mohareb, considering that some theologians have stated that a

death sentence on a mohareb may only be issued if their action, in

addition to corruption and causing fright, has led to murder; otherwise the

other four choices including banishment and pardon shall be made use of.

The emphasis is on pardon (not punishment) of the mohareb by the

judge.126 As the punishment for moharebeh leading to murder is a public

right and it is optional and the tradition of the prophet as well as the

opinions of theologians are based on preference for and emphasis on

pardon rather than the death penalty and amputation, there is a way for

ignoring the death penalty in this sense. Therefore abolition of the death

penalty for moharebs at least in practice does not contradict religion,

neither Koran.

Intentional Murder and qesas: The only instance where the death

penalty has been authorized and a moratorium on its implementation is

not within the power of the state and the judge is qesas for life. It is a

private right and the government cannot deny its owner of it. To further

understand the possibilities of coming up with recommendation on

restricting implementation of qesas, I analyzed the philosophy of qesas in

Islamic sharia. Here are some Koranic evidences for qesas:

                                                                                                               126 Baghi, p. 59

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1. And there is life for you in retaliation, O men of understanding, that you

may restrain yourselves127

2. We ordained therein for them: ‘Life for life, eye for eye, nose or 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. And if anyone fails to judge by what Allah has revealed, they are

wrong-doers 128

3. Because of that, We decreed upon the Children of Israel that whoever

kills a soul unless for a soul or for corruption [done] in the land - it is as if

he had slain mankind entirely. And whoever saves one - it is as if he had

saved mankind entirely.129

This list can go on and on but the fine line in pointing out these evidences

is to note the emphasis of Koran on the importance of life within the

philosophy of qesas. Although it is a private right of individuals to practice

qesas, Koran has frequently highlighted the alternatives of forgiveness and

the blood money (financial compensations):

“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 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. After this whoever exceeds the limits shall face grave penalty.”130

My understanding of the availability of qesas in Koran is the very fact of its

emphasis on the right to life itself, for which it has a high respect and

provided the punishment of death penalty for whoever violates it

                                                                                                               127 The Noble Koran – Al-Baqarah – 2:179 128 The Noble Koran – Al-Ma’idah – 4:45 129 The Noble Koran – Al-Ma’idah – 4:32 130 The Noble Koran – Al-Baqarah – 2:178

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intentionally. The aim here is not taking the life but maintaining peace and

protection in the society, by giving legal right to the next of kin to avoid

hidden revenge and terror. That is why immediately after providing

individuals with qesas Koran has emphasized on and recommended other

alternatives to pursue and avoid spreading brutality in the society. As its

best form, which is of ethical character, Koran recommends pardoning and

values it so much that it says: if you pardon, God will reward you. The

verse ”And your life in retribution” concerns intentional murder not

manslaughter, which is not punished by qesas. In regard to intentional

murder, where a person with prior decision and intention killed an innocent

person, if the heirs of the slain person forgive the perpetrator their action

is so honorable and excellent that nobody can reward it but God131.

Another important point to bear in mind is that the qesas punishment is

not mandatory. In other words, in the Koran’s view, qesas is permitted but

not imperative; qesas is a right but not an obligation.

Baghi argues that some affairs require purposeful reasoning and one of

these is qesas. Purposeful reasoning "means reasoning based on the

purposes of the sharia including the purposes of the sharia’s address and

its decrees." In purposeful reasoning, laws and their expressions are

instruments for arriving at the goal or the purpose. Qesas is one of the

meanings and ways of guaranteeing social life. The same verse that has

provided for the qesas decree has provided for other ways, too. Therefore,

considering that the philosophy and goal of qesas is prevention of murder

and experience has shown that the death penalty has not prevented the

occurrence of murder in various societies, that penalty shall be ruled out

and a different method should be sought to fulfill the philosophy of

punishment for intentional murder. The subject is protection of the

                                                                                                               131 Baghi, p.80

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individual and social life. Life is the ultimate goal and qesas is the

instrument.132

One might argue that if a next of kin insists on implementation of qesas,

the state cannot deny that right and has to proceed with the death penalty.

While reiterating their opinion is a necessary condition for implementation

of the qesas for murder but not sufficient, my response covers two main

aspects:

The social aspects: Once the concept of the right to life and

guaranteeing it is institutionalized, the state can do great range of

advocacy on alternative methods to qesas that is pardon and fine. In the

other hand, under current law, the murderer can go free in exchange for

payment of blood money or pardon unless the court imposes a restrictive

prison sentence in regard to the public aspect of the offence. To avoid such

concerns as an obstacle for advocating on abolition of the death penalty,

the state can urge the court to enforce their powers over imprisonment

sentences for such cases.

The legal aspect: As mentioned above, qesas can only be applicable in

the case of intentional murder. Otherwise according to Koran133, diyeh

(blood money) will be enforced instead. Therefore, only intentional murder

can be punished by the death penalty, for the following cases: 1)

intentional murder; 2) ill intention; 3) innocence of the victim; 4) the

victim is not a child; 5) it is not a case of benefaction; 6) the killer or the

victim are not mad; 7) it is not the case of legitimate defence of honor; 8)

not a case of self-defense; 9) not a case of defending property.134

                                                                                                               132 Ibid, p.85 133 The Noble Koran – An-Nisa – 4:92 134 Baghi, p. 64

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Reviewing Koran again where it says, “whosoever killed a human being for

other than manslaughter or corruption on the earth, it shall be as if he had

killed all mankind and if anyone saved a life, it would be as if he saved the

life of the whole people” 135, reveals that life and death are of social

matter, not individual. The same reasoning applies to when it comes to the

judgment over a human’s life. Evidently, a judge cannot decide on this

important social matter alone and requires a team of experts to help him

pass a fair judgment. Laws can and should change to include this

important aspect by urging the presence of jury in court where qesas is

implemented. Having a team of experts helping the judge will further

prevent irreversible mistakes in sentencing people to death. The

constitution has accepted the principle of jury as a matter of jurisprudence

and this can be applied in the case of murder, which deals with the life of

people, too. This will involve a third party in the judgement of qesas,

which is a private right between two parties, to take caution in regard to

blood. Ultimately this can lead to the reduction of the death penalty since

the case will also be faced with public opinion in addition to the state.

Baghi argues that the opinion of the experts group (in addition to the

opinion of the jury) can be regarded as a condition, too and provides a

theological foundation for it:

"It is worth and sometimes imperative that a judge consults a delegation of experts of judicial affairs and Islamic decrees before judging. It is permitted to judge in a council, hence there should be several judicial assessors in the court, besides the judge, who possess the qualification of judges and fully oversee the proceedings and the final sentence should be issued in accordance with the opinion of all or majority of members"136.

                                                                                                               135 The Noble Koran – Al-Ma’idah – 4:32 136 Baghi, p. 76

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Conclusion

The human rights paradigm is becoming more universal and pervasive

over time and abiding to human rights standards represents growth in

human dignity and behavior. The worldwide movement towards abolition

of the death penalty has gained remarkable successes recently. Countries

like Iran, where the death penalty is considered a punishment in its laws

and is being widely practiced in its administration of justice, have been a

block opposing this trend. Going through Iran’s behavior and position

towards international standards with respect to right to life and having a

deeper analysis on the reasons for such behaviors, I tried to show possible

ways of suspension, if not abolition of the death penalty in the Iranians’

law and practice. Of course due consideration was given to the important

role of sharia law and Koran as my main sources of evidence.

The rate of execution in Iran is increasing at an alarming speed. This

might be due to the attitude of authorities in punishing an individual for

the crimes caused and promoted by the society for variety of reasons. In

the other hand, vagueness of offences punishable by death and leaving the

decision at the discretion of the judge under tazir punishment, adds to the

scary increasing rate. Killing of a human being is a contributing factor to

culture of violence in the society and makes the society indifferent towards

this dangerous trend. This is in absolute contradiction with the nature of

Koran on preserving human’s life and promotion of peace on earth. As

shown throughout this study, Koran except for the case of intentional

murder does not prescribe the death penalty, which is a private and

forgivable right. Therefore, human rights and Islam do not contradict each

other in respect of the death penalty and prescription of the death penalty

can be limited to “the most serious crimes” as referred to by the

international standards. It was argued that even in the case of qesas, the

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emphasis is on pardon and blood money rather than taking somebody’s

life in revenge. The philosophy of qesas, emphasized several times in

Koran is a remarkable evidence for this cause and it paves the way in

resorting from this punishment. So, it is possible to set certain conditions

for qesas, presence of jury and a team of experts in the court are among

them. However, abolition of the death penalty in Iran by no means offers

letting go of intentional murders, but is meant to replace the death penalty

with other harsh punishments, which are not in the scope of this study.

In proposing reforms in laws and practice it is worth noting that Islamic

jurisprudence is also impacted by social conditions. Iran has witnessed the

suspension of a command of which its implementation has not been to the

interest or benefit of Islam 137 . Other recent examples are Ayatollah

Shahroodi’s138 circulars of 2003 and of 16 October 2008 inviting the courts

to stop condemning juvenile offenders to death, and his directive of

December 2002 inviting the courts to stop using death by stoning139.

Abolition of or moratorium on the death penalty can be treated the same

way and uphold the Islamic Republic of Iran’s position and image in the

international community now more than ever. Executions rate will not

decrease without agreeing to legal reforms by the state. This should not

seem as backing down from the position of power for it has Koranic

supports and evidences. This essential task falls under the state’s

responsibilities to best deal with the social problems and hence reduce the

rate of crimes and executions. Of course legal reforms are not enough and

a social mobilization, backed by the state is also required to institutionalize

the religious and legal concepts of right to life and refrain from the practice

of the death penalty. The crucial role of the media, civil society, and non-

                                                                                                               137 Ayatollah Khomeini, using the same principle, said that even prayer, which is one of the pillars of Islam, can be suspended because the main criterion is the interest of religion and not its commands, as discussed in the 2nd chapter of this study. 138 Former head of Judiciary of the Islamic Republic of Iran 139 Unfortunately there is no law in place to give binding force to the said directive and circulars yet

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governmental organizations in this social behavioral change should not be

neglected.

The scope of the death penalty can easily be limited in Iran and provisions

of the international human rights standards such as the CRC and ICCPR,

with respect to right to life, can and should be practiced by the state.

Idealistically, in order for the justice to be restored and end impunity,

“those state functionaries who committed human rights violations and the

diplomats who offered falsehoods to cover them up must be held

accountable in historical memory, if not in an international court of law”.140

                                                                                                               140 Afshari, p. xvii

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Appendices

A History of UN Special Representatives and Rapporteurs in Iran

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  1  

Power Structure in the Islamic Republic of Iran1

                                                                                                               1 http://www.united4iran.org/2012/02/organs-of-power-in-iran