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Tilburg University

Protection of women victim of rape

Azari, Hajar

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Faculteit Rechten

Recht en Ontwikkeling

Protection of women victim of rape;

Islamic and international

legal perspectives

Proefschrift voorgelegd tot het behalen van de graad van

Doctor in de Rechten aan de Universiteit Antwerpen te

verdedigen door

Hajar Azari

Promotor: Prof. Dr. Koen De Feyter

Promotor: Prof. Dr. Rianne Letschert

Tilburg - Antwerp: 2014

Protection of women victim of rape; Islamic and international

legal perspectives

Bescherming van vrouwen slachtoffer van verkrachting;

Islamitische en internationale juridische perspectieven

Proefschrift ter verkrijging van de graad van doctor aan

Tilburg University op gezag van de rector magnificus, prof.dr.

Ph. Eijlander, en Universiteit Antwerpen op gezag van de rector magnificus,

prof. A. Verschoren, in het openbaar te verdedigen ten overstaan van een door

het college voor promoties aangewezen commissie in de Ruth First zaal van

Tilburg University

op dinsdag 25 november 2014 om 16.15 uur

door

Hajar Azari

geboren op

21 september 1982 te Borojen, Iran

Promotores:

Prof.dr. R.M. Letschert

Prof.dr. K. De Feyter

Overige leden van de Promotiecommissie:

Prof.mr. W.J.M. van Genugten

Prof.mr. M.S. Groenhuijsen

Prof.dr. E. Brems

Prof.dr. W.J.A. Vandenhole

Dr. K. Cavanaugh

Dr. J. Rozie

Protection of women victim of rape; Islamic and international

legal perspectives

HAJAR AZARI

Supervisors:

Prof. Dr. Koen De Feyter

Prof. Dr. Rianne Letschert

Submitted for examination in order to obtain the degree of Doctor in Laws

Examination committee:

Professor Doctor Rianne Letschert, Tilburg University, Netherlands, supervisor

Professor Doctor Koen De Feyter, University of Antwerp, Belgium, supervisor

Professor Doctor Willem van Genugten, Tilburg University, Netherlands

Professor Doctor M.S. Groenhuijsen, Tilburg University, Netherlands

Professor Doctor Eva Brems, Ghent University, Belgium

Professor Doctor Wouter Vandenhole, University of Antwerp, Belgium

Doctor Kathleen Cavanaugh, National University of Ireland, Ireland

Doctor Joëlle Rozie, University of Antwerp, Belgium

Contents

Acknowledgements

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

i) Problem Statement .................................................................................... 1

ii) Methodology ........................................................................................... 10

iii) Research Limitations............................................................................... 13

PART I: ISLAMIC LEGAL PERSPECTIVES ON RAPE ......................... 15

1 Chapter 1: Islamic legal framework and mediation in Islamic law ..... 17

1.1 Introductory Notes .................................................................................. 17

1.2 Clarification on the divine nature of the Islamic law .............................. 18

1.3 Sources of Islamic Law ........................................................................... 21

1.4 Mediation and human interface with the past ......................................... 24

1.5 Contemporary methods of formulation of Islamic law ........................... 37

1.6 Different Interpretation of Islamic law and its global effects ................. 42

2 Chapter 2: Rape in Islamic law ............................................................... 48

2.1 Introduction ............................................................................................. 48

2.2 The category of crimes in Islamic criminal law ...................................... 49

2.3 Different types of rights and crimes under Islamic criminal law ........... 51

2.4 Definition and punishment of rape in Islamic criminal law ................... 52

2.4.1 Introduction .................................................................................... 52

2.4.2 Origins of rape law in the Quran .................................................... 53

2.4.3 The origins of rape and Zina law in legal reports (Hadith) ............ 57

2.4.4 Rape, different Islamic schools and contemporary thoughts ......... 66

2.5 Islamic criminal procedure ..................................................................... 72

2.5.1 Assessment of capabilities and inadequacies of evidence in rape . 73

2.5.2 Right to compensation of women victims of rape .......................... 91

2.6 Conclusion .............................................................................................. 99

3 Chapter 3: Iranian interpretation of Islamic law regarding rape ..... 102

3.1 Introduction .......................................................................................... 102

3.2 The legal framework and Constitution ................................................. 103

3.3 Sovereignty of Islamic law in Iranian legal system ............................. 106

3.4 Situation of women victims of rape in Iran .......................................... 108

3.4.1 Protection in light of criminal law ................................................ 108

3.4.2 Protection in light of procedural law ............................................ 112

3.5 Conclusion ............................................................................................ 121

PART II: INTERNATIONAL LEGAL PERSPECTIVES ON RAPE .... 123

4 Chapter 4: International legal framework ........................................... 125

4.1 Introduction .......................................................................................... 125

4.2 A brief history of international law ...................................................... 126

4.3 The subjects of international law ......................................................... 130

4.3.1 States in international law ............................................................ 130

4.3.2 Other actors in international law .................................................. 131

4.3.3 Current trends and transformation of international law ............... 136

4.4 The sources of international law .......................................................... 144

4.4.1 The formal sources of international law ....................................... 144

4.4.2 The concepts of hard law and soft law ......................................... 162

5 Chapter 5: Rape in international law ................................................... 166

5.1 Introduction .......................................................................................... 166

5.2 The Definition of Rape in International Law ........................................ 169

5.2.1 A quick glance at the Mens rea of rape: non-consent or coercion? ....

....................................................................................................... 175

5.3 Victims and the right to provide evidence in international law ............ 183

5.3.1 Different types of evidence ........................................................... 184

5.3.2 The right of victims to participate in the proceedings .................. 189

5.3.3 Right to protection ........................................................................ 192

5.3.4 Right to a remedy .......................................................................... 196

5.4 Victims and the right to compensation in international law ................. 201

5.5 Conclusion ............................................................................................ 210

6 Chapter 6: Implementation of international law within Iranian law 213

6.1 Introduction ........................................................................................... 213

6.2 Application of international law at the domestic level ......................... 214

6.3 The status of International law in Iranian legal system ........................ 224

6.3.1 International Treaty Law ............................................................... 224

6.3.2 Legal effect of international treaties in domestic law ................... 230

6.3.3 Hierarchy between international and domestic law ...................... 235

6.3.4 International customary law .......................................................... 236

6.4 The conflict between the Iranian legal system and international law

(International perspective) .................................................................... 237

6.5 The United Nations human rights systems and Iran ............................. 244

6.5.1 United Nations Mechanisms for the Protection of Human rights and Iran .

....................................................................................................... 246

6.6 The effectiveness of the efforts of United Nations Human rights bodies

............................................................................................................... 269

6.7 Conclusions ........................................................................................... 272

PART III: DISCUSSION AND CONCLUSION......................................... 275

7 Chapter 7: Protection of victims: Challenges and opportunities ....... 277

7.1 Introduction ........................................................................................... 277

7.2 Divergencies between Islamic and International legal perspective on the

rape issue ............................................................................................... 277

7.2.1 Capital punishment ....................................................................... 281

7.2.2 Equality between women and men (regarding blood-money) ..... 288

7.2.3 Defining rape; marital rape and sexual penetration ..................... 292

7.3 Protecting victims of rape; where do Islamic law and human rights

instruments meet? ................................................................................. 293

7.4 Conclusion ............................................................................................ 301

8 Chapter 8: Conclusions and recommendations: Current practices and

future directions ..................................................................................... 302

8.1 Islamic legal perspective on rape ......................................................... 303

8.2 International legal perspective on rape ................................................. 310

8.3 Application of Islamic law and International law at the domestic level

.............................................................................................................. 314

Bibliography ................................................................................................... 320

Glossary of technical terms ........................................................................... 356

Acknowledgements

Being a researcher at law and development group of Antwerp University has

been a great privilege for me and its members will always remain dear to me.

My first debt of gratitude must go to my supervisor, Prof. Dr. Koen De Feyter.

This thesis would not have been possible without his help, support and patience.

He has been supportive and has given me the freedom to pursue various ideas

and independent work. He has also provided many opportunities for me to

attend a great number of conferences in different countries during my PhD.

Koen, I am also very grateful for your insightful discussions to proceed through

the doctoral program and complete my dissertation, thank you.

I want to thank Prof. Dr. Rianne Letschert at the International Victimology

Institute Tilburg. Her good advice, financial support and friendship has been

invaluable on both an academic and a personal level, for which I am extremely

grateful. Rianne, I feel proud that I could be a member of your research group. I

learnt many nice things from you.

I would also like to express my deep respect and great appreciation to Prof. Dr.

Kathleen Cavanaugh at National University of Ireland. I would like to thank her

specially for giving me the opportunity to do this PhD, for giving critical

remarks when necessary and for helping to choose which paths to follow in the

research. I would also like to thank her for always making the time to help me in

sometimes very busy schedules.

I specially thank Prof. Dr. Wouter Vandenhole for his comments, feedbacks,

valuable advice and discussions which helped me a lot to improve my PhD. My

thanks and respects to Prof. Dr. Joëlle Rozie for her comments, guidance and

friendly assistance.

It is with immense gratitude that I acknowledge the support and help of prof.

Kadivar, professor of Islamic studies at the department of Religion, Duke

University, for his valuable advice, comments and discussions which helped me

a lot to improve my PhD.

I would also like to express my great appreciation to Dr Baghi and Dr

Habibollahi for their help and support during my research.

Some of my colleagues deserve my special thanks: In particular, I would like to

thank Vicky for helping me really a lot with my PhD in various ways. Vicky,

you are one of the most helpful persons I know. I wish you good luck in your

future career! Special thanks also go to Claire with whom I always had

very nice conversations and could solve many of my practical problems.

Special thanks should be given to Luk Van Eygen and Terry Amssoms for

administrative and technical support. They have been always available around

whenever I need them, thanks. I again specially thank Luk for his willingness

to solve all kinds of practical problems and for having really everything

you can imagine in his drawer.

During my PhD, most of my time was spent at Antwerp University; I would

therefore like to thank all my colleagues, now my friends, for uncountable

interesting discussions and for creating a nice atmosphere at work. So, Aida,

Paula, Dominique, Katrine, Claire, Tria, Amanda, Vicky, Arne and all the others

I forgot to mention… I had lots of fun at work thanks to you!

Besides people from work, some people from my personal life have

encouraged or helped me in one way or another and also deserve my

utmost gratitude: I would like to thank my best friends for bringing so much joy

to my life Maryam and Nasrin whom I always had very nice and helpful (non)

work related conversations. Thanks Maryam for bringing so much joy to my life

and for your support and encourage specially during my PhD. I love you all!

Most importantly, I am forever indebted to my beloved parents, for their

blessings, support and encouragements in every step of my life. I appreciate

them to give me wings to fly, I owe them everything and wish I could show

them just how much I love and appreciate them. I do appreciate my brothers for

providing emotional support that I needed, for encouraging me and their

assistance not only in my personal life but also in my research and job. I am

very much indebted to my family, my husband for his understanding, endless

patience and encouragement when it was most required.

1

Introduction

i) Problem Statement

The frequency of sexual offences, particularly of rape against women,

has become an issue of major concern for the police, the courts, the government

and non-governmental organizations. Addressing the issue of rape and violence

of any nature against women lies at the heart of any attempt at promoting gender

equality. In this way, ensuring justice for women victims of rape has a symbolic

significance in the struggle for gender equality. Women of every age group,

vocation, ethnicity and religious background may be victims of rape. The

culpability for rape as a crime always lies with the attacker, and there should be

no discussion of whether someone deserves to be raped because of where they

happen to be, what they are doing, what they are wearing, what they are saying

or if they are intoxicated or under the influence of drugs.

Rape has a devastating impact on women, their families, their friends

and the wider society. The impact is likely to affect women’s mental, physical

and sexual health. Interpretations of this crime in the legislative system and

practical procedures of judicial institutions indicate a particular gender discourse

Introduction

2

in this field.1 The root of victimization in this discourse results from putting the

blame on the female victims themselves. The relationship between the victim

and offender is used to create an excuse to escape culpability for rape, e.g. when

the victim and the rapist have had a previous sexual liaison or if the woman

victim has had a previous conviction for a sex crime. Often, the current crime

itself is not investigated without prejudice. Through this discourse, women

victims are considered as a partner in crime instead of a victim, and this attitude

has been the main reason for not recognizing the mass complaints of rape

victims by the police and judicial system.2

Public opinion about rape is

inevitably taken into account in the courtroom and often victims of rape do not

see justice.3 Often we see that the cases resulting in a conviction are those cases

in which rape was committed in a way that leaves no evidentiary doubts (e.g.,

when the victim has been abducted, beaten and tortured) but these only make up

a minority of rape offences. As a result, often, incidents of rape remain

unreported, both in developed and in developing countries.4

1 Although the victims of rape are not limited to female and men also can be a victim of rape, the

PhD will focus on female victimization because at the domestic level and within the Islamic context,

women are at greater risk than men, both influenced by the cultural and the legal system. 2 Within victimology this perception stems from the victim precipitation theories which

primarily involve an explanation of how an individual's behavior normally contributes to his or

her own victimization. This theory proposes that behavior of a victim initiates subsequent

behavior of a victimizer and this whole process is known as victim precipitation. Perhaps the

first theory to explain victimization was developed by Wolfgang in his study of murders in

Philadelphia. Victim precipitation theory argues that there are victims who actually initiated the

confrontation that led to their injuries and deaths. Amir, Menachem, Victim precipitated forcible

rape,J. Crim. L. Criminology & Police Sci., 58, 1967 , Curtis, Lynn A, Victim precipitation and

violent crime,Soc. Probs., 21, 1973 , Meier, Robert F and Miethe, Terance D, Understanding

theories of criminal victimization,Crime and justice, 1993 , Timmer, Doug A and Norman,

William H, Ideology of victim precipitation,Crim. Just. Rev., 9, 1984 , Wolfgang, Martin F,

Victim precipitated criminal homicide,J. Crim. L. Criminology & Police Sci., 48, 1957. 3 Rape culture is a concept which links rape and sexual violence to the culture of a society, and

in which prevalent attitudes and practices normalize, excuse, tolerate, and even condone rape.

Acock, Alan C and Ireland, Nancy K, Attribution of blame in rape cases: The impact of norm

violation, gender, and sex-role attitude,Sex Roles, 9, 1983 , Ritzer, George and Ryan, J

Michael,The concise encyclopedia of sociology, John Wiley & Sons, 2010. p. 493, Nicoletti,

John, Spencer-Thomas, Sally and Bollinger, Christopher M,Violence goes to college: The

authoritative guide to prevention and intervention, Charles C Thomas Publisher, 2009.p. 134. 4 Underreporting is also linked with the high attrition rate. An attrition rate is the amount of

convictions resulting from reports of a crime compared with the acquittal rate. For more

information please see, Artz, Lillian and Smythe, Dee, Case attrition in rape cases: A

3

This is also the case in Islamic countries, where the situation is

sometimes worse because of a particular interpretation of Islamic law in

conjunction with cultural or political attitudes towards rape. This can sometimes

result not only in a lack of justice, but even in the actual punishment of the

victim. In this legal and cultural context, in some cases, victims’ statements are

looked upon with suspicion. Sometimes victims have been brought before courts

and they have been punished for ‘intimacy’ because in Islamic law having

sexual relationship out of the marriage is forbidden. Therefore, not only has the

injustice exacted upon the victims by this crime not been repaired, but the

criminal justice system has also exposed these victims to the risk of secondary

victimization.5 Consequently, few rapes are reported, while the cases that are

brought forward result in, sometimes at best, minimal punishment for offenders,

and at worst, severe punishment for victims. In addition, many victims are also

subject to persecution from their families or communities as a result of cultural

responses to rape that many justify through association with Islam.

However, many progressive Muslim scholars suggest that such policies

and attitudes contradict the origin of Islam and even the original text of Islamic

comparative analysis,South African Journal of Criminal Justice, 20, 2007 , Berger, Vivian,

Man's trial, woman's tribulation: Rape cases in the courtroom,Colum. L. Rev., 77, 1977 ,

Brown, Jennifer M, Hamilton, Carys and O'neill, Darragh, Characteristics associated with rape

attrition and the role played by scepticism or legal rationality by investigators and

prosecutors,Psychology, Crime & Law, 13, 2007 , Brownmiller, Susan,Against our will: Men,

women and rape (1975), Pearson Education New Zealand, 2005 , Daly, Kathleen and Bouhours,

Brigitte, Rape and attrition in the legal process: A comparative analysis of five

countries’(2010),Crime and Justice: A Review of Research, 39. 5 Secondary victimization is defined as “the victim-blaming attitudes, behaviors, and practices

engaged in by community service providers, which results in additional trauma for sexual assault

survivors.” Victims may also experience secondary victimisation by every formal or informal

institution that a victims interacts with after the incidentm For example, victim blaming,

inappropriate post-assault behaviour or language by medical personnel or other organisations

with which the victim has contact may further add to the victim's suffering. Campbell, Rebecca

and Raja, Sheela, The sexual assault and secondary victimization of female veterans: Help‐seeking experiences with military and civilian social systems,Psychology of Women Quarterly,

29, 2005. Campbell, Rebecca and Raja, Sheela, Secondary victimization of rape victims: Insights

from mental health professionals who treat survivors of violence,Violence and victims, 14, 1999 ,

Martin, Patricia Yancey,Rape work: Victims, gender, and emotions in organization and

community context, Psychology Press, 2005 , Orth, Uli, Secondary victimization of crime victims

by criminal proceedings,Social Justice Research, 15, 2002.

Introduction

4

law.6 It shows that if one wants to examine how Islamic law deals with

particular crimes, at first, one has to be aware of what Islamic law really means

and how it works in Islamic countries or which school of Islamic law we refer to

when we talk about Islamic law. “Islamic law” is sometimes contested and

always subject to various interpretations, depending on different States and

various schools of thought.

Since there is no single “Islamic law” and every Islamic country has its

own rules and interpretation, I will first analyse the different meanings and

schools of thought within Islamic criminal law in particular with regard to the

crime of rape. Next, the study will focus on one country in particular, namely

Iran. Iran has been selected because it is widely known among the Islamic

countries for its particular or idiosyncratic interpretation of Islamic law.

However, the recommendations that will follow from this study will be relevant

for other Islamic law systems as well since there are also some commonalities

amongst different schools of Islamic law. The innovative approach of this

research is the focus on the relation between Islamic (Iranian) law and

international law, more specifically human rights law. The following questions

are central in this thesis:

1- How do different interpretations of Islamic texts impact on rights of

women victims of rape in different schools of Islamic law?

2- How does the Iranian legal system -selected case study- address the

crime of rape in order to protect women victims of this crime? How does the

Iranian legal system interpret Islamic sources of law-making regarding rape?

3- How does international law (in particular international human rights law)

protect women victims of rape? What are the international documents that

preserve the rights of these victims?

4- How could international human rights instruments be effective in

offering protection to victims of rape in the context of a legal system based on

Islamic law (e.g. Iran)? How is international human rights law implemented in

the Iranian legal system?

6 Norman, Julie Rape law in islamic societies: Theory, application and the potential for reform,

CSID Sixth Annual Conference, “Democracy and Development: Challenges for the Islamic

World”, ( April 22 - 23, 2005).CSID Sixth Annual Conference, “Democracy and Development:

Challenges for the Islamic World”.

5

Following from these questions, the thesis will be divided into three

main parts. The first part examines Islamic legal perspectives on rape and the

interpretation of Islamic law in Iran (regarding rape) as an example of Islamic

courtiers. The second part considers the protection of victims of rape at the

international level and the implementation of international law in domestic law

that focuses on Iran as a case study. The third and last part examines the

differences between Islamic law (Iranian version) and international law

regarding rape. It discusses the challenge and opportunities of protection of

victims (of rape) under Islamic law and international law. All these parts aim at

clarifying how rape is dealt with in Islamic law and what difficulties victims

face that originate from different Islamic perspectives on rape. The chapters on

the international legal framework will enable us to determine how the protection

offered by international law can be used domestically and how possible

divergencies between both systems can be reconciled.

Part I, First Chapter: To start with, it is crucial to know that often, when

we read or hear about what “Islamic law” says about a particular topic, one

assumes that “Islamic law” is applied in a consistent way in which legal

definitions are similar and crimes are equally punished. When we read about the

implementation of “Sharia” in various countries, most of the time there is no

reference to the particular school of law that is actually referred to. In other

words, it is important to realize that “Islamic law” is not a hegemonic and

monolithic system. Islamic countries are divided into different divisions based

on different interpretations of the faith, and of religious, and often political

associations. Although the sources of law making in Islamic law is somehow

clear, the interpretation of these rules are not the same. In other words, Islam is

manifested in a different way in different Islamic countries. Each State has a

different vision of a proper Islamic way of legalizing different crimes and

punishment. They even are different in diverse groups of Muslims and

consequently from one Islamic country to another one. Some are more flexible

and others are stricter. These points demonstrate that although law in Islam has a

divine nature, we cannot ignore the extent to which Islamic law was and is a

human product and how jurists are and can be creative within accepted rules.7

7 The first chapter on the Islamic legal system will explain the role of jurists in the Islamic legal

system.

Introduction

6

Therefore, understanding the various ways in which jurists deal with legal

questions supports to find new ways of thinking about Islamic law.8 Thus, as

one of the goals of this research is to demonstrate how rape is dealt with in

Islamic law, the first chapter will help to understand the legal framework of

Islamic law and will explain the background needed to understand the Islamic

legal system and the political use of Islam. It will provide a clarification on what

the word of Islam and its different manifestation means, why different

interpretations of Islamic law are possible and what motivates States in adopting

one or another interpretation as official law of the State.

Second Chapter: To understand both the punishments and protections

assigned to rape offenders and victims today, and to consider possible reforms

for the future, the second chapter of the research will explore the development

of responses to rape in Islamic law and its different schools and whether they

categorize rape as Zina9 or as entirely different acts and how each of them

classified it.

For this purpose, the sources of law-making in the Islamic legal system

including Quranic texts, reports or Hadith of legal decisions and opinions

attributed to religious authorities from old to contemporary jurists will be

examined. These decisions and opinions most probably functioned as the

grounds for what later became the doctrines of the classical schools of Islamic

law (Madhahib). Reports or Hadith narrating these early legal positions enable

to interpret the initial framing of the crime of rape. Attention will be paid to

challenging ways in which Muslim jurists of different schools of Islamic thought

approach what we typically understand as “rape”, noting how the coercive

nature of rape was gradually minimized, with increased emphasis placed on the

criminality of rape as related to Zina, or sexual intercourse outside marriage.

In addition, this chapter will demonstrate how different interpretations of

Islamic law with regard to rape can influence the rights of these victims in

Islamic countries and how cultural and political interpretations of these reports

can undermine the situation of victims in the process of criminal investigation.

8 Hina, Azam, Competing approaches to rape in islamic law,University of Texas at Austin,

Forthcoming in Feminism, Law and Religion Ashgate Publishing Ltd. 2013. 9 Having consensual sexual relationship outside of marriage that is forbidden in Islamic law.

7

Since the PhD thesis aims to illustrate the type of difficulties victims

face in the judicial system in order to enforce their rights, only the most

challengeable and controversial rights of victims in the Islamic context have

been selected: the right to provide evidence and the right to compensation.

Although the research acknowledges that there are more victim rights,10

this

study exclusively focuses on these two rights. This is mainly because the

misinterpretation of Islamic rules has most directly and explicitly affected the

right to provide evidence and the right to compensation. While for other

procedural rights, such as the right to privacy, the right to be safe and secure, the

right to information and translation etc., there are less controversial or in some

cases there is support in the primary sources of law-making in Islam and no

challenge if we compare them with rights prescribed under international law.

In addition, the Islamic part mainly focuses on monetary compensation

because the issue of inequality between men and women shows itself more in

the money awarded to women as compensation compared with men. Note,

however, that since women victims of rape often require a broader concept of

protection than purely a monetary one, the international chapter will also deal

with the concept of reparation.11

10

See for instance the 1985 UN Basic Principles and Guidelines on the Rights of Victims of Crime

and Abuse of Power, Fletcher, George P,With justice for some: Victims' rights in criminal trials,

Addison-Wesley Publishing Company, 1995 , Ford, Marijo A and Nembach, Paul A, Victims' right

to privacy: Imperfect protection from the criminal justice system, the,. John's J. Legal Comment., 8,

1992 , Mackinnon, Catharine A, Rape, genocide, and women's human rights,Harv. Women's LJ, 17,

1994 , Stark, James H and Goldstein, Howard W,The rights of crime victims, Bantam Books, 1985 ,

Weis, Kurt and Borges, Sandra S, Victimology and rape: The case of the legitimate victim,Issues in

Criminology, 1973. 11

Reparation is a principle of law that has existed for centuries, referring to the obligation of a

wrongdoing party to redress the damage caused to the injured party. Under international law,

“reparation must, as far as possible, wipe out all the consequences of the illegal act and re-

establish the situation which would, in all probability, have existed if that act had not been

committed”. See please: Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol,

Advisory Opinion, I.C.J. Reports 1949, p. 184 ; Interpretation des traites de paix conclus avec l.),

(1928) P.C.I.J., Sr. A, No.17, at 47 (September 13); International Court of Justice: Military and

Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits 1986 ICJ Report, 14,

114 (June 27); Corfu Channel Case; (UK v. Albania); Reparations for Injuries Suffered in the

Service of the United Nations a Bulgarie, la Hongrie et la Romanie, deuxieme phase, avis

consultatif, C.I.J., Recueil, 1950, p. 228. See also Article 1 of the draft Articles on State

Responsibility adopted by the International Law Commission in 2001: "Every internationally

Introduction

8

Third Chapter: In order to illustrate the effects of different interpretations,

the treatment of women as victims of rape in a specific national criminal justice

system will be discussed in depth by using Iranian criminal law as a case study,

and as an example of a country that chose Islam as formal source of law-

making. Referring to domestic law at this level will show how Islamic law has

been interpreted and applied at a domestic level. At the same time, the

interwoven element of legal culture will be examined noting how problems of

legal culture can still influence almost identical situations of injustice even

though the law appears to offer protection.

Part II, Fourth and Fifth Chapters: Following an evaluation of the legal

bases of rape and rights of victims in Islamic sources and within the Iranian

legal system, the protective strategies incorporated in international law, with a

particular focus on international human rights law, as well as different

definitions mentioned in various international documents will be described in

Chapter Four and Five. It will explain how international law has been affected

by both humanization and globalization and how these two factors transform

views on the traditional subjects and concepts of international law. Both hard

and soft law and international and regional (Europe) documents on rape are

reviewed. Together, they make up an international regime providing protection

to rape victims.

Therefore, these chapters will review all international documents that

could be of use for women victims of rape. Then, it particularly searches for

those international obligations relating to compensation and providing evidence.

It will evaluate and examine what they prescribe internationally with regard to

the definition and punishment of rape or procedural rights of victims or if there

are any specific obligations relating to women victims of rape.

Sixth chapter: Since this PhD has both Islamic and international legal

perspectives, along with the previous section, Chapter Six will demonstrate one

wrongful act of a State entails the international responsibility of that State. (UN Doc.

A/CN.4/L.602/Rev.1, 26 July 2001" (ILC draft Articles on State Responsibility).Basic Principles

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian Law,

Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.

9

of the most important problems or difficulties which international human rights

law is facing namely relating to the issues of enforcement, implementation and

respect of international human rights instruments at domestic level. Although,

for different reasons, some countries accept a variety of human rights

obligations, sometimes they are not able or willing to implement them at the

domestic level. Therefore, this chapter is the intersection of international law

and national law as it will evaluate the relation between Iran as domestic law

and international law. This part will explore the status of international law

within Iranian law by examining the legal structure of the Iranian legal system

and its Constitution, with particular focus on the position of Sharia in that

system. Iran's international obligations with regard to rape or sexual violence

will be elaborated on as well. This chapter will clarify why only a limited direct

use of international law (and human right law) in Islamic countries such as Iran

can be made and why Iranian law does not appear to be compatible with

international norms.

Part III, Seventh chapter: By comparing the two legal frameworks

(Islamic and international law), the gaps and differences between the two

systems are highlighted. Significant differences occur on issues such as the

inequality between men and women in compensation rights, capital punishment

for rape, marital rape etc. These differences can be explained by substantial and

philosophical differences or by misinterpretation of Islamic rules.

As conclusion, the Eighth chapter implies that although Islamic human

rights instruments in broad terms represent values similar to international human

rights law, practical difficulties prevent to apply an appropriate protective

system for victims in Iran. As a way forward, a plea will be made for a creative

interpretation of Islamic law that allows safeguarding the rights of women

victims of rape and providing an “effective” protection system for victims.

International law, on the other hand, will provide a framework to take into

account the expectations of the international community, indicating the direction

for legal reform.

Introduction

10

ii) Methodology

This research has been done in a descriptive and analytical way and

focuses on the definition and punishment of rape as well as the right to

compensation and the rights relating to providing evidence. It will also attempt

to provide some bases and suggestions in Islamic law to offer Islamic countries

ways to reform existing codes following an indication of protective strategies

employed by international law. The following methodology was used in the

subsequent parts.

a) At first, different interpretations of Islamic schools of law, the

legal bases of rape in Islamic sources, such as Quran, Ahadith (tradition of

prophet), consensus and intellect, analogy etc. the development of rape

treatment over time and the ideas of the religious leader and jurists will be

reviewed.12

Both Shiite and Sunni perspectives will be examined and sometimes

compared with each other to show what the differences are and how these

differences affect the rights of victims in criminal proceedings, in particular the

right to compensation and the rights relating to providing evidence. With regard

to Islamic sources, the sources that have been cited are mainly Hadith or reports.

However, it has to be mentioned that the texts that form the basis of the analysis

carried out in the thesis are not law books or legal papers. In fact, they are

Hadith or reports, which can be sometimes a short sentence, and encompass the

legal observations and judicial activities of authorized and official persons in

different generations of Islam. These reports or Ahadith were transferred

through individual records (both orally and in writing) and have been collected

by the end of the 2nd

/8th

century of Islam. A standard report or Hadith may be

attributed to the Prophet Muhammad or to later authorities such as companions

of Muhammad or to successors to the companions. Most reports that reached us

are mainly attributed to their sources through more or less comprehensive chains

of transmission. It is named “Isnads” in Islamic jurisprudence and serves as

citations, which can be compared with the way we use citations in academic

research today. Traditionally, students of the Ahadith differentiate between the

12

Sources were studied from the time of the prophet to three centuries after his passing where

possible.

11

transmission chains and the contents of reports13

in order to recognize whether

or not the content attributed to (un) reliable authorities, or whether fabricated

content attributed to respected authorities. They also consider any other

possibilities to evaluate or examine the validity of reports.

b) At the second stage, the treatment of women as victims of rape in

a specific national criminal justice system namely Iran, both in terms of the

normative provisions and in terms of effective protection offered in practice will

be evaluated. Therefore, both the substantive and procedural rules will be

discussed. In addition, the behavior of police, judges and the other relative

personnel of criminal justice system, which is, in somehow, the manifestation of

criminal rules, culture etc. will be evaluated.

c) At the third level, international law will be examined, particularly

focusing on international human right law. In doing so, almost all related

documents including soft law and hard law, which can help to provide proper

protective strategies for victims, have been considered. In some cases, European

law has been considered as well. In addition, the work of the United Nations

such as the Special Rapporteur on Violence against Women, including its causes

and consequences has been taken into account. The most important international

instruments on victims’ rights such as the United Nations Declaration on Basic

Principles of Justice for Victims of Crime and Abuse of Power (1985) or the

specific women’s conventions at the UN such as the Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW) and

General Recommendation 1914

have been discussed. At the European level, the

main instrument dealing with the issue at hand is the EU Council Framework

Decision of 15 March 2001 on the standing of victims in criminal proceedings15

,

which it is recently revised into a directive.16

The directive is designed to afford

victims the best legal protection and defence of their interests, irrespective of the

Member State in which they find themselves. In addition, the Council of Europe

13

It is named in Islamic jurisprudence as Mutun (s. Matn). 14

General recommendations made by the Committee on the Elimination of Discrimination

against Women, llth session, 1992.

http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm 15

Official Journal L 82 of 22.03.2001. 16

Official Journal, L 31 5/ 57, 14/11/2012 .

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF

Introduction

12

adopted a European Convention on the Compensation of Victims of Violent

Crime (1983). This was followed in 1985 by a Recommendation issued by the

Council of Ministers of the position of victims within the framework of criminal

law and procedure, calling for states to ensure that the needs of victims are taken

into account in the national criminal justice process. The CoE 17

also considered

the Council of Europe Convention on preventing and combating violence

against women and domestic violence.18

d) Chapter Six is an evaluation of the implementation of

international law into domestic law. It evaluates the status of international law

within the Iranian legal system by examining the legal structure of the Iranian

legal system and its constitution, with particular focus on the position of Sharia

in that system. Iran's international obligations with regard to rape or sexual

violence will be elaborated as well. In order to do so, the reports of monitoring

bodies of the United Nations regarding Iran’s human rights violation have been

described. It particularly focuses on the reports of the Special Rapporteur on

violence against women, including its causes and consequences and when it is

relevant, the reports of other international bodies have been added.

e) By applying the above-mentioned methods, chapters Seven and

Eight clarify why it is very difficult for victims in Iran to invoke international

documents at domestic courts. This will be followed by an argument in favor of

using a creative interpretation of Islamic law as one appropriate solution to offer

proper protection system for victims. In order to provide solutions that are more

realistic for victims in Islamic context (Iran), in concluding part, the research

prefers to propose some solutions through domestic and Islamic methods to

make it more acceptable for local legislative systems. In this regard, two

17

Council of Europe Convention on preventing and combating violence against women and

domestic violence CETS No.: 210.

http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?CL=ENG&NT=210 18

Although Iran cannot become a member / party to European conventions, European regional

standards appear to be more developed in terms of providing higher-level protection for victims,

and can thus be used to inspire more comprehensive recommendations.

13

methods of interpretation of Islamic text could guarantee rights for rape victims:

a revolutionary (fundamental) method or a gradual method.19

The first one refers to solutions that remove the problems basically such

as elimination of capital punishment (or severe punishments like stoning to

death) because of the “interest of public” or because of the principle of “the

abolishment of the legal punishment in case of uncertainty” etc. In this case, this

method suggests that capital punishment or stoning to death still exists in rules

but should not be implemented any more in the current situation. In this method,

it is not necessary to examine all Islamic rules in depth. The second one refers to

the method that helps to remove the problems gradually or step by step without

conflict with Islamic rules through applying an Islamic perspective. Although

this research tried to apply both methods, the current situation in Iran has proved

that the second method will be more practical and realistic in that context

because of the current political and social situation.20

By applying these techniques, it has been attempted to bridge the gaps

between both systems with regard to rape and to guarantee equal rights for

victims independent of the legal system they are born into.

iii) Research Limitations

Most academic research starts by reviewing existing literature of the

research subject; the more prolific literature, the more fruitful the research. One

of the most important limitations of this research has been the lack of enough

academic research on the topic of rape in Islamic contexts that particularly refer

to the reports or Hadith from the time of the prophet or Imams. This problem is

even worse in Shiite school of Islamic law where it was difficult to search in

very old Arabic text to find reports relating to the topic of rape. It was

complicated to find enough sources that compare both Shiite and Sunni school

of Islamic law and even all four Sunni schools. Although some studies were

conducted in the field of sexual violence against women in Egypt and Pakistan,

19

Emadalddin, Baghi, The right to life, a research concerning the possibility of cancellation of

capital punishment in the Sharia of islam, Arabic Network for Human Rights Information and

the International Campaign for Human Rights in Iran, August 2007).P 20. 20

ibid.

Introduction

14

the performed studies on this topic in Iran was not enough for the purpose of this

thesis. It is mainly because the subject of rape has been taboo in Islamic

countries as Sonbol notes: “the subject of rape reveals it to be an almost

untouched subject in Middle East scholarship except for a rare reference”.

Therefore, few studies exist in comparison with the Western context.

While some scholars believe that local and domestic methods can be

more practical in this regard, as this topic is very controversial, different ideas of

different group of Muslims and even different ideas of jurists within one group,

made it very difficult to suggest a concert idea. Since the role of jurists is very

important in the Islamic context, in order to gather relevant research material

myself, it has been attempted to contact them and I sent several emails to well-

known jurists in Iran or asking to meet them there to discuss their ideas or

suggestions but it was difficult to reach them or get an explicit answer.

Another limitation relates to the study of Islamic rules with regard to this

crime. Since there are very different ideas around one topic in Islamic sources, I

did not restrict myself to one idea and several Persian, Arabic and English

sources, Sunni and Shiite ones, employed to analyze different ideas about the

topic. Therefore, I had to spend a lot of time to access original references and

translate them into English. In some cases, I had to travel to Iran or contact the

writers directly, which they did not trust easily. On the other hand, in the Islamic

part, although English literature has been used as well, they are not as prolific as

Islamic ones.

Another point to be made is that because of the lack of scholarly material

and documentation of rape cases, and more significantly, the underreporting of

rape cases, it is very difficult to find reliable statistics on this issue. For example,

with regard to Iranian cases the difficulty was related to study different cases

through participating in local courts. Since, according to Iranian law,

investigating these cases are private, it was very difficult to participate in court

and examine them; therefore some cases have been studied in the secretaries of

courts and other information has been obtained by interviews with some judges

and victims. This difficulty is also caused by the lack of a particular

organization to investigate and collect accurate data.

PART I: Islamic legal perspective on rape

17

1 Chapter 1: Islamic legal framework and mediation in Islamic law

Chapter 1:

Islamic legal framework and

mediation in Islamic law

1.1 Introductory Notes

Islamic law gives the impression that it consists of a homogeneous

system in which the behaviors that are considered as crimes and that should

therefore be punished have been clearly defined. However, different ways of

enforcing Islamic law and of defining crime under this system are observed, due

to the variety of schools of Islamic law (thoughts). From this perspective,

Islamic law should be looked at as a human product even though its nature

remains divine.21

Careful analysis reveals the extent to which jurists are creative

to make and enact law within acceptable parameters. Therefore, understanding

the different ways, different reasons and various backgrounds in which jurists

21

An-Na'im, Abdullahi, The dichotomy between religious and secular discourse in islamic

societies,Women and Islam: Images and realities, 1, 2005. P 16.

Chapter 1: Islamic legal framework and mediation in Islamic law

18

address legal issues can help scholars to think differently regarding the Islamic

law. Cultural and political beliefs and even geographical location influence the

making and establishment of rules. The impact of such characteristics is huge

with regard to rule-making in general and rules related to female victims in

particular.22

Sharia for instance has two features, one of which is divine while

the other is a human product that can be influenced by different parameters.

Even though religious beliefs do not seem to vary greatly in Islamic states,

political, cultural and geographical location differ from one country to another.

On examining the laws in different Islamic states, such as Tunisia, Morocco, or

Saudi Arabia, serious differences of law related to women can be found.23

In order to show the extent to which Islamic law is a human product, it

is particularly important to understand why different schools of Islamic law give

different interpretations of Islamic rules; how these interpretations impact on the

situation of victims of rape in Islamic countries and how Islamic law can be

used as a technique to justify essentially political decisions. In order to be able

to give at least tentative answers to all the above questions, an attempt should

first be made to provide some background information in terms of what Islam

and Islamic law mean.

This is the subject matter of chapter one, where the way Islamic law

works, the kinds of sources that are used to make rules and the way old Islamic

rules are changing into new ones will be discussed. The way that Islamic law

can be influenced by different items coming from inside or outside of the

Islamic context and by different matters such as cultural, political and

geographical will be discussed as well.

1.2 Clarification on the divine nature of the Islamic law

The word Islam means “submission” to the will of God24

and the term

“Sharia” which refers to the law of Muslims, means “the way to be followed.”25

22

Anwar, Zainah,Wanted: Equality and justice in the muslim family, Musawah, 2009. pp 5, 46. 23

Mir-Hosseini, Ziba and Hamzić, Vanja,Control and sexuality, Women Living Under Muslim

Laws, 2010. 24

Husain, Syed Arshad, Religion and mental health from the muslim perspective,Handbook of

religion and mental health, 1998. p 283.

19

One of the fundamental beliefs of Muslims is that the will of God has been

transferred to humankind through revelations and all of them are contained in

the Quran. Therefore, with accord to Muslims' beliefs, the Quran not only

contains a collection of ideas, but it also encompasses the will of God as the

correct way of life of human beings individually and in community with others.

Consequently, it is a must for Muslims to understand the will of God and

organize their lives on this basis. However, with regard to introducing a legal

system, the Quran does not provide Muslims with very well established legal

systems, nor does it contain all responses to all possible situations.26

Even with

regard to certain rules, they seem to be interpretive and need human interface in

order to be implemented. 27

During the lifetime of Prophet Muhammad,

whenever there was a problem with regard to interpreting certain subjects,

people could ask him their questions as a religious, moral and political leader.

After the death of Prophet Muhammad, the Shiite still posed their questions to

the Imams28

because they believed and still believe that Imams are divinely

25

Bassiouni, M Cherif and Badr, Gamal M, The shari'ah: Sources, interpretation, and rule-

making,UCLA J. Islamic & Near EL, 1, 2002. p 135, Fadel, Mohammad H, Public reasons as a

strategy for principled reconciliation: The case of islamic law and international human rights

law,Chi. J. Int'l L., 8, 2007. p 1. 26

Weiss, Bernard, Interpretation in islamic law: The theory of ijtihād,The American Journal of

Comparative Law, 26, 1978. pp 199-201. 27

Krivenko, Ekaterina Yahyaoui,Women, islam and international law: Within the context of the

convention on the elimination of all forms of discrimination against women, 8, Brill, 2009. p 47. 28

Shiite is the short form of the historic phrase Shitite Ali meaning "followers", "faction" or

"party" of Muhammad's son-in-law and cousin Ali, whom the Shitte believe to be Muhammad's

successor in the Caliphate. Twelver Shia (Ithnā'ashariyyah) is the largest branch of Shitte Islam

and the term Shia Muslim is often taken to refer to Twelvers by default. Shiite Islam is based on

the Quran and the message of the Islamic prophet Muhammad attested in Hadith recorded by the

Shiite, and certain books deemed sacred to the Shia (Nahj al-Balagha). In contrast to other

Muslims, the Shiite believe that only God has the right to choose a representative to safeguard

Islam, the Quran and sharia. Thus the Shiite look to Ali, Muhammad's son-in-law, whom they

revere and consider divinely appointed, as the rightful successor to Muhammad, and the first

Imam. In the centuries after the death of Muhammad, the Shiite extended this "Imami" doctrine

to Muhammad's family, the Ahl al-Bayt ("the People of the House"), and certain individuals

among his descendants, known as Imams, who they believe possess special spiritual and

political authority over the community, infallibility, and other quasi-divine traits.

Although there are myriad Shiite subsects, modern Shiite Islam has been divided into three main

groupings: Twelvers, Ismailis and Zaidis. Esposito, John L,What everyone needs to know about

islam: Answers to frequently asked questions, from one of america's leading experts, Oxford

University Press, 2002. http://www.britannica.com/EBchecked/topic/540503/Shiite,

http://www.oxfordislamicstudies.com/article/opr/t125/e2189?_hi=26&_pos=238.


20

protected infallible like the Prophet. However, the Sunni asked their question to

other companions and successors of the Prophet.29

After the death of the Prophet

(and Imams), there was no revelation link, but Muslims still aimed at searching

for the divine will of God reflected in the Quran. They could invoke the Quran

and Hadith as divine sources in order to find answers to their questions. But,

they did not have any references like the Prophet or Imams any more who could

give concrete answers to their questions. The main reason is that, as it will be

explained later, the Quran and Ahadith are interpretative texts.30

Although

Muslims want and have the desire to exercise the will of God, as fallible human

beings, at first they have to realize what the will of God is and then align it with

the new development and changes in the world.

In Islam, it is not possible for human beings to fully understand the will

of God and any knowledge or understanding of the divine will not be perfect or

complete. However, human beings are always encouraged to do their best in

order to find out the truth, but they have to be aware of their limitation.31

The most important and challenging questions are “who has this

authority to find out the will of God” on the one hand and “how it should be

done” on the other hand. In this line of thinking, “Fiqh” is an attempt to find the

will of God through some indicators, such as the Quran, Hadith etc. that are

29

The Succession to Muhammad concerns the varying aspects of successorship of Muhammad

after his death, comprising who might be considered as his successor to lead the Muslims, how

that person should be elected, the conditions of legitimacy, and the role of successor. Different

answers to these questions have led to several divisions in the Muslim community since the first

century of Muslim history; most notable giving rise to Sunnis, Shiite and Kharijites. From a

historic viewpoint as recorded, with Muhammad's death in AD 632, disagreement broke out over

who should succeed him as leader of the Muslim community. Umar (Umar ibn al-Khattab), a

prominent companion of Muhammad, nominated Abu Bakr. Others added their support and Abu

Bakr was made the first caliph. This choice was disputed by some of Muhammad's companions,

who held that Ali (Ali ibn Abi Talib), his cousin and son-in-law, had been designated his

successor. Holt, Peter Malcolm, Lambton, Ann Ks and Lewis, Bernard,The cambridge history of

islam, 1, Cambridge University Press, 1977 , Lapidus, Ira M,A history of islamic societies,

Cambridge University Press, 2002 , Madelung, Wilferd,The succession to muhammad: A study

of the early caliphate, Cambridge University Press, 1998 , Tabataba'i, Muhammad

Husayn,Shi'ite islam, The Other Press, 1979. 30

Weiss, Bernard, Interpretation in islamic law: The theory of ijtihād,The American Journal of

Comparative Law, 1978. p 199. 31

Weiss, Bernard G,The search for god's law: Islamic jurisprudence in writings of sayf al-din

al-amidi, University of Utah Press, 1992. p 152.

21

supposed to reflect it. While the nature of this process still remains divinely, it

requires human intellectual understanding.32

However, Fiqh, as human

understanding of divine will and deducing legal decisions, should be done

through particular mechanisms, methods, processes and the science known as

Usul al-fiqh.33

Consequently, only an authorized person who is expert in this

science is able to deduce rules which will be explained in the next section.

1.3 Sources of Islamic Law

The study of women's rights in Islam would be incomplete without

looking into how Muslims interpreted Islam in the past and how historical and

political influences have affected and shaped the beliefs and practices of

Muslims today. Therefore, we need to know the main sources of law making in

the Islamic law.

The rulings in the Islamic law are derived from four main sources. The

main and primary source accepted universally by all Muslims is the “Quran”. As

already mentioned earlier, Muslims believe that the Quran is the unaltered word

of God that was gradually revealed to Muhammad as his Prophet to guide

human beings and regulate their behaviors and social relations, which is

expressed in the following terms: “Basic statement to mankind, a guidance and

instruction to those who fear God.”34

Quran has been revealed to Prophet

Muhammad, in Arabic, over a period of 23 years, i.e. 10 years in Mecca and 13

years in Medina. In addition, they believe that the Quran is the primary source

containing all the fundamental directives and instructions for not only guiding

individual conducts, but also principles relating to all the aspects of social and

32

It shows that, the definition of law in Islamic legal system is different from the definition of

law given in other legal systems. The major difference between the system of Islamic law and

civil and common-law systems is in the divine nature of Islamic law. In the Anglo- American

system, law is produced by court decision and in civil law system, law is the product of statutes.

Rahman, Fazlur, Islam . Chicago and london, (1979), pp. 100–109. 33

In addition; it means that we have to differentiate between Sharia and Fiqh. As WEISS,

Bernard G. explain it very well "Shari’a law is a sort of Platonic ideal that scholars try to

realize, however imperfectly and fallibly, in their fiqh. Fiqh law accordingly derives its validity

from its character as the closest approximation of Shari’a law that scholars are capable of

achieving.", Weiss, Bernard G,The search for god's law: Islamic jurisprudence in writings of

sayf al-din al-amidi, University of Utah Press, 1992.p16. 34

3:138.


22

cultural lives of human beings.35

The Quran is also a book of law, which

contains at least 500 verses out of 6,239 verses about legal rules, including

family and inheritance, obligation, contracts, torts, the laws of property, crime

and punishment.36

As the Islamic community grew and its needs became more

complex, the Quran addressed those issues and tried to replace old tribal

customs (pre-Islamic customs) with more just reforms. For example, the Quran

outlawed and banned traditional customs such as idolatry, gambling, liquor,

promiscuity, unbridled polygamy, usury, etc. Compared with the situation of

women before Islam, Islam enhanced their situation by announcing women's

equality to men and providing women with decreed rights in the areas of

marriage, divorce and inheritance. 37

The “Sunna” is the second source of the Islamic law.38

Sunna is an

Arabic word which means "Method". It was applied by Prophet Muhammad as a

legal term to represent his verbal teachings, his acts, confirmations and practical

demonstrations observed during his lifetime.39

Two types of Sunna can be

identified, Sunna by the words and Sunna by the deeds. It is possible to say that

Sunna is included in “Hadith” (Plural: Ahadith ), which implies that, as Fazlur

Rahman says "Hadith means a story, a narration and refers in its technical

sense to “a narrative, usually very short, purporting to give information about

what the Prophet said, did, or approved or disapproved or, of similar

information about his Companions ….”40

Up to this stage, the Sunni and Shiite agree upon the interpretation;

however, from the Shiite perspective, Sunna includes the same information from

their Imams as well. They believe that the authority of Imams is derived from

the Quran. The Quran, in Chapter 4, verse 59 says, “… Obey God and his

35

Minority group of Muslims opposes this idea believing that Quran cannot regulate all the

aspects of social and cultural lives of human beings. 36

Bassiouni, M Cherif and Badr, Gamal M, The shari’ah: Sources, interpretation, and rule-

making, 1 ucla j,Islamic & Near EL, 135, 2002.p 148. 37

It was around 628 CE: for instance regarding idolatry please see; Hawting, Gerald R,The idea

of idolatry and the emergence of islam: From polemic to history, Cambridge University Press,

1999 , Juraev, Nosirjon, Sources of law in civil, common and islamic legal systems,2010. 38

For more information please see, Hallaq, Wael B,A history of islamic legal theories: An

introduction to sunni usul al-fiqh, Cambridge University Press, 1999. 39

Esposito, J.L.,The oxford dictionary of islam, Oxford University Press, USA, 2003.p329. 40

Rahman, Fazlur, Islam . Chicago and london, (1979), p 54.

23

messenger and those in authority among you.”41

The same concept is expressed

in chapter 4, verse 83, where it says, “When a matter comes to them, be it of

security or fear, they broadcast it, whereas if they returned it to the Messenger

and to those in authority among them, those of them whose task is to research it

would have known.”42

Shiite interprets that “those in authority among them” are

Imams and then their behavior should be binding as well.

The third source is “Ijma” or the consensus of Muslims scholars. In fact,

the Islamic societies need to have such a law-making process to solve the

practical problems that occurred while enforcing the Islamic Law. The Quran in

4:136 states that, “Obey /God, his prophet and those in charge of your affairs.43

”

For example, if there are questions about a Quranic interpretation or an issue

where there is no guidance from either the Quran or Sunna, jurists applied their

own reasoning (Ijtihad) to come to an interpretation. Consensus of Muslims

scholars about particular issues has evolved over time and a particular

interpretation about an issue could be accepted by doctrines of law.44

On the

basis of what precedes, it is clear that scholars did not unanimously agree on one

interpretation. They always had diverse opinions, even though several scholars

could once in a while concur on an issue. In addition, the definition of Ijma and

the question of which Ijma to consider was a point of contention, because Ijma

is not a consensus of all past jurists. Besides, using the concept of Ijma causes

the problem of looking at the past to solve the problems of the future, because

yesteryear scholars probably did not face the same issues that are demanding for

Muslims today.45

“Qiyas” which means analogy is the fourth source. The problem

regarding this source is that there is no specific indication about its validity in

the Quran or the Sunna. “Qiyas”, referring to methods of logical reasoning, is

41

4:59. 42

4:83. 43

4:136. 44

Esposito, John L,Women in muslim family law, Syracuse University Press, 1982., p 8. 45

For more information please see: Farooq, Mohammad Omar, The doctrine of ijma: Is there a

consensus?, (2006), , Hasan, Ahmad,The doctrine of ijma in islam, Islamic Research Institute,

1978. And website on: Muslim Women's League, Intellectual Background: Islamic Sources of

Information and their Development into Islamic Law, September 1995.


24

applied only through a scientific process by skillful jurists.46

In order to apply

Qiyas to similar cases, the reason or cause of the Islamic rule must be clear. For

example, the Quran clearly explains why consumption of alcohol is prohibited

(because it makes the user lose control of his actions). Therefore, an analogy can

be drawn to drugs which produce the same effect and the consumption of which

should then be prohibited. However, because the Quran does not specifically

state the reason why pork is prohibited, Muslims cannot justify banning another

meat product with a similar cholesterol level, etc. While “Qiyas” is accepted by

Sunni jurisprudence like the Hanafi school (8th

century) as a legitimate source of

law making, the Shiite consider it an illegitimate and invalid method and replace

it with “Aql”.

“Aql” meaning, “intellect” is an Arabic term used in Islamic theology. In

Shiite jurisprudence, “Aql” is the process of using intellect or logic to make law

based on jurisprudence principles. Therefore, Shiite Muslims reject the “Qiyas”

or analogy and the consensus approach advocated by the Sunni.47

At a more

basic level, they also have not recognized the authority of elected Muslim

leaders, choosing instead to follow a line of Imams who they believe have been

appointed by the Prophet Muhammad or God himself.

1.4 Mediation and human interface with the past

Having discussed the sources of law making in Islamic law, it is

important to know how Muslims today interface with the past and apply these

sources – well or badly - to address new issues. The aim of this section is to

clarify that there is mediation between eye and text in the sources of Islamic law.

This mediation, that takes place mainly in Ahadith, can create controversy that

does not originate from divine (prophetic) revelations but from the mediated

space. Mediation in the Quran, Ijma and Qiyas or Aql is briefly discussed, and

then mediation in Hadith is discussed in more detail.

46

For more information please see: Hasan, Ahmad,Analogical reasoning in islamic

jurisprudence: A study of the juridical principle of qiyas, Islamic Research Institute, 1986. 47

Qurashi Seyyed Ali Akbar, Qāmūs al-Qur'ānT Dar al-Kotob al-islāmiya, Tehran, Sixth

Edition, Vol. 5,(1991), p28.

25

With regard to the first source, it has to be acknowledged that the text in

the Quran like any other text is subject to interpretation, which is nowadays an

important subject for Muslims since each interpretation has numerous

consequences in the process of formulation of Islamic law and in the social life

in Islamic states. In other words, because many of the directives in the Quran are

so broad, interpretation takes on such a significant role. There have been so

many different interpretations of the Quran, as the Islamic thinker Abul A'ala

Maududi claims, "there is hardly to be found any command with an agreed

interpretation.”48

This state of different interpretations not only refers to modern

scholars, but also includes the founding schools of thought and even the

companions of the Prophet, who "did not all agree in every detail in regard to

Commands and Prohibitions.”49

Nonetheless, Muslims scholars have never

questioned the authenticity of the Quran.

It is worth noting that the situation of an interpreter and the environment

in which the interpretation takes place have particular influence on the special

interpretation of the Quran. Therefore, Muslims scholars have developed a

complete science of interpretation of the Quranic verses. This is why with regard

to the women’s rights in Islam some scholars, oppose the position taken by

traditionalists, emphasizing the male domination of this interpretive process as

is evident from the works of Mernissi, Fatima. Barlas, Asma or Ziba

Mirhossine.50

The involvement of human beings in the process of law making is even

more felt in Ijma and Qiyas or Aql because it directly involves human reasoning

to make rules. Because of these two sources, Islamic rules are very different

from one Islamic state to another.

However, the narrative system of Hadith makes it more complicated to

produce legal rules based on this source, and thus requires more explanation.

48

Maudoodi, S.A.A., Ansari, Z.I. and Staff, Islamic Foundation,Towards understanding the

quran, Islamic Foundation, Limited, 2009.(London: The Islamic Foundation, 1989), p 5. 49

Lingle, Wilbur and Delancy, Robert,Burning questions about islam: A panoramic study for

concerned christians, CrossBooks, 2011.p 51. 50

Mernissi, Fatima,The veil and the male elite: A feministe interpretation of women's rights in

islam, Addison-Wesley Publishing Company, 1991. Barlas, Asma," Believing women" in islam:

Unreading patriarchal interpretations of the qur'ān, University of Texas Press, 2002.


26

The majority of Muslims believe that the Quran and Sunna are mutually

complementary. The teachings in the Quran are general in nature while the

Sunna elaborates further on the instructions expressed in the Quran.

Each Hadith contains two primary elements, Sanad (Islnad) and Matn

(content). Each Hadith (or ‘report’) is conveyed by a chain of transmission

known as the Isnad (literally, support). This contains the names of the

individuals narrating a certain Hadith and can be used to illustrate its specific

level of authenticity. The Matn is the content and the actual wording of the

Hadith.51

In order to deduce rules properly from each Hadith, the chain of

narrators and the content of each Hadith should be evaluated. Therefore, a very

scientific system for collecting and narrating the traditions was developed. The

“science of Hadith” is an attempt to establish a more or less authentic collection

of Prophetic traditions.52

The collectors did not record any traditions unless they

included a chain of reliable narrators. Every tradition had to mention the names

of the narrators and to include the necessary information about them, such as the

one who informed each narrator about the tradition, which could help trace it

back to the Prophet time (or Imams in Shiite).53

To this end, particular methods

aimed to assess the credibility of each Hadith both in terms of every transmitter

and information or content, have been developed. Sheikh Ahmad Kutty54

, while

supporting the validity of Hadith studies notes:

“The vagueness of ancient historians about their sources stands in stark

contrast to the insistence that scholars such as Bukhari and Muslim manifested

in knowing every member in a chain of transmission and examining their

reliability. They published their findings, which were then subjected to

51

Zaraket, Fadi A and Makhlouta, Jad, Arabic cross-document nlp for the Hadith and biography

literature, FLAIRS Conference, (2012).FLAIRS Conference p 256. 52

For more information please see; Abdurrauf, M, Hadith literature: The development of the

science of Hadith,Arabic Literature to The End of The Umayyad Period, 1983 , Burton, John,An

introduction to the Hadith, Edinburgh University Press Edinburgh, 1994 , Hasan, Suhaib,An

introduction to the science of Hadith, Al-Quran Society, 1994 , Zaman, Iftikhar, The evolution

of a Hadith: Transmission, growth and the science of rijal in a Hadith of saad b. Abi waqqas,

(1991). 53

Azimi, Muhammad Mustafa,Studies in hadīth methodology and literature, Amer Trust Pubns,

1978.Verification of the authenticity of some early Hadith: pp 269–292. 54

Senior Lecturer and an Islamic Scholar at the Islamic Institute of Toronto,[26] Ontario,

Canada.

27

additional scrutiny by future scholars for consistency with each other and the

Qur'an.”55

Therefore, the Hadith studies include a careful examination of the Isnad,

or chain of transmission connected with each Hadith.

Scholars examined the Hadith from different angles for example they

studied Isnad to make sure that all transmitters and transmittees were known to

be alive and living in the same area at the time of transmission and that the

transmitters were reliable. The scholars refuted unreliable people i.e. reported to

have lied (at any point). Scholars also did not accept narration from neglectful

people (and thus likely to misunderstand the saying). The experts thus

determined what was acceptable and what was not, based on the Isnad and

content of each Hadith.

In addition, the Hadith science also developed instruments to resolve

possible contradictions amongst different Hadith, which allowed reconciling the

texts or to establish preference (tarjih) of some texts over others. However,

some scholars such as Yusuf Al-Qaradawi believed that, “definitive texts of the

Qur'an and the Sunnah cannot contradict each other because one truth cannot

be at odds with another truth. So any assumed contradiction between such

definitive texts is apparent rather than real. Attempts to reconcile should take

priority over preferring one to another because, unlike reconciling, preferring

means rejecting one of the two contradicting texts.”56

Muslim scholars have

expressed several solutions on how to reconcile contradictory Ahadith. The

dominant method is to provide the correct understanding of the purpose

55

Ahmad, I, The rise and fall of islamic science: The calendar as a case study, conference on

Faith and Reason: Convergence and Complementarity, Al-Akhawayn University, Ifrane,

Morocco, (2002).conference on Faith and Reason: Convergence and Complementarity, Al-

Akhawayn University, Ifrane, Morocco. 56

Yusuf Al-Qaradawi is the Head of the European Council for Fatwa and Research (ECFR) and

the President of The International Union for Muslim Scholars (IUMS).

http://www.onislam.net/english/shariah/Hadith/Hadith-studies/436311-Hadith-sunnah-conflict-

contradiction-prophet-islam.html.


28

statement of the prophet in his Hadith, which also involves human

understanding.57

In order to solve (apparent) contradictions amongst Ahadith and in order

to present reliable Hadith, the Hadith science classified Ahadith into different

groups based on their credibility. For instance, Ahadith have been divided

according to the reference to a particular authority, the links in the Isnad, the

number of reporters in each stage of the Isnad, the manner in which the Hadith

is reported, the nature of the text and Isnad, a hidden defect found in the Isnad or

text of a Hadith, and the reliability and memory of the reporters.58

Explanation

of all of these classifications is beyond the scope of research, however, a number

of classifications of Hadith are shown in the figure below.59

57

For more information please see: Bahari, Che Amnah,Ta'wil mukhtalif al-Hadith: An

annotated translation, IIUM Press, 2009 , Bin Baru, Rohaizan, Ab Rashid, Rosmalizawati, The

reconciliation approach in resolving contradictory prophetic tradition,International Journal of

Business and Social Science, 2, pecial Issuem January 2011. 58

Hasan, Suhaib,An introduction to the science of Hadith, Al-Quran Society, 1994.p11. 59

http://muttaqun.com/Hadith.html.

29

The most well-known classification is based on the reliability of

reporters. Four categories can be identified in this group:

“Sahih” or authentic: one of the requirements for validity of Hadith is that

each narrator should be trustworthy in his religion; he should be well-known


30

to be truthful in his reporting, to be aware of what he reports, to know how a

different expression can change the meaning, and to report the wording of the

Hadith word for word, not only its meaning.60

“Hasan” or good: Ibn al-Salah classifies Hasan into two categories:

1. First one is an Isnad that contains a reporter who Mastur ("Hidden") and

he is not famus, i.e. no well-known person reported from him) but he can

be trusted if he is not totally careless in his reporting, provided that a

same text is reported through another chain as well;

2. Second one is an Isnad that includes a reporter who is known to be

truthful and reliable, but to one degree less in his preservation/memory

of Hadith than the reporters of Sahih Ahadith .61

“Da'if” or weak: a Hadith which does not reach the status of Hassan. Usually,

the weakness is due to: a) discontinuity in the Isnad,62

or b) one of the

reporters cannot be trusted, because of lies, excessive mistakes, opposition to

the narration of more reliable sources, involvement in innovation, or

ambiguity surrounding his person.

“Maudu'” or fabricated or forged: is a Hadith that goes against the well-

known norms of the Prophet's sayings, or its reporters include a liar or there is

an inconsistency in the dates or times of a certain incident. 63

Another category, which is important for this research, is a classification

based upon the number of narrators mentioned at each level in a particular Isnad.

A Mutawatir Hadith is reported by a large number of people and therefore it

is presumed that they did not agree upon a lie.64

As Kamali mentions, “There

are two types of Mutawatir: (a) Mutawatir bil lafz ("all the reports must be

identical on the exact wording of the Hadith as they were uttered by the

60

Narrating each Hadith verbatim is controversial issue amongst Muslims. Ali Ibn Hasan,

Nuzhah al-nuthr, published with al-nukat,Dar ibn al-Jawzi, al-Damam, 6th edition, p 82. 61

Hasan, Suhaib,An introduction to the science of Hadith, Al-Quran Society, 1994.p 28. 62

In which case the Hadith could be - according to the nature of the discontinuity - munqati

(broken), mu'allaq (hanging), mu'dal (perplexing), or mursal (hurried). 63

Al-Dhahabi,Al-muqizah, 1405. pp. 33-34. 64

Tahir B. Ahmad Al-Jaza'iri,Taujih al-nazar ila usul al-nazar, Maktaba 'Ilmiyyah, Madinah,

N.D, p33.

31

Prophet himself”). However, this type of Hadith is extremely rare. (b)

Mutawatir bil ma'na (this type is agreed in concept or meaning, not in exact

words). Most Ahadith are of this type. Many such Ahadith are narrated in

such a way as if quoting the Prophet. This type of transmission is also known

as "conceptual transmission.”65

The second category, Ahaad or singular narration, refers to any Hadith not

classified as Mutawatir. This type refers to a Hadith narrated by only one

narrator.66

Hadith Ahad includes sub-categories relating to the number of

narrators in the chain(s) of narration: Gharib, Aziz and Mashhur. A Hadith is

named gharib or scarce, strange when only one narrator is found relating it at

some stage of the isnad. If only two reporters narrate the Hadith at any stage

in the isnad, it is named aziz, rare or strong. Mashhur or famous refers to

Hadith transmitted by three or more narrators but not considered Mutawatir.67

There are differing views regarding the level of knowledge that can be

achieved by these categories as explained below.

Even this brief analysis shows that nowadays, Muslim scholars have to

deal with aged documents and texts belonging to a various periods of time. The

compilations of documents increased or decreased under the influence, for sure

of social and political circumstances. The conditions of the writers and narrators

of the traditions were not always the same. At times, traditions were changed by

forgetfulness and inattentiveness; 68

compilations were exposed to discrepancies

and alterations. Muslims are faced with a huge number of manuscripts that are

presented as tradition and narration. That is why Muslim scholars developed

such complicated systems and science to distinguish the authentic from the

inauthentic, the valuable from the worthless and the pure from the impure, for

the purpose of establish part of the truth and the essence of the Religion, along

with the Quran.

65

Kamali, Mohammad Hashim,Principles of islamic jurisprudence, Islamic Texts Society

Cambridge, UK, 2003. p 95- 106. 66

Ibn Hajar Al-Asqalani,Nuzhah al-nathar, Al-Nukat Ala Nuzhah al-Nathr, pp 51-70. 67

Ibid. 68

Moradi, Mohammad The knowledge of tradition (Hadith) Hadith Sciences E-Zine, 2010.p2.


32

Although Muslim scholars develop scientific approaches to identify the

truth, some Muslims scholars still challenge the authenticity of Hadith as a

source of law making. Even among the group of Muslims who believe in the

credibility of Hadith, there is disagreement on the authenticity of certain Hadith.

While Muslims do not have any dispute about the credibility of the Qur'an, no

such agreement exists about Hadith.

On the one hand, one group of Muslims takes the orthodox position and

believes that the Quran and Hadith are two complementary primary sources of

Islamic guidance and they both have both a divine nature. Kazi states in his

book “all the sayings, sermons, and utterances of the Prophet were divinely

inspired. ... all of the actions and deeds of the Prophet were also divinely

inspired". According to his ideas, which represent orthodox point of view ….

“The sunnah and a Hadith are not to be taken as the wise sayings of

philosophers or the rule of leaders but as documents that represent the will of

God and thus have to be followed in every circumstance of life.”69

The majority of orthodox accordingly recognizes the reliability of “Ahad”

Hadith, as explained above and accepts that a speculative knowledge of Ahadith

is sufficient as a basis of obligation in legal matters.70

The view expressed by

Dawud al-Zahiri, Ibn Hazm and others – is that Hadith Ahad achieves certain

knowledge. According to Ibn Hazm, “[t]he narration conveyed by a single,

upright narrator conveying from another of a similar description until reaching

the Prophet mandates both knowledge and action.”71

As a result, as Kamali

mentions “The majority of jurists, however, agree that ahad may establish a

rule of law provided that it is related by a reliable narrator and the contents of

the report are not repugnant to reason.”72

69

Kazi, Mazhar U,A treasury of Hadith, Abul-Qasim Publishing House, 1992. pp. 1-2. 70


Cambridge, UK, 2003. p 98. 71

Ahmad Muhammad Shakir,Al-ba’ith al-hathith sharh ikhtisar ulum al-Hadith, 1, Maktabah

al-Ma’arif, 1996.p 126. 72


Cambridge, UK, 2003. p 97.

33

On the other hand, another group of Muslims rejects the Hadith literature

altogether believing that the prophet did not intend that his words or behavior

were considered as rules and be part of formulation of law. They believe that

despite the scholarly approach that has been developed to assess Ahadith , the

collections of Ahadith that we have now are partly authentic and unauthentic

and cannot be simply considered as law. This view, supported by Ibn Hajar and

others, rejects the idea that “Ahad” Hadith achieve certain knowledge, they

believe a Hadith Mutawatir achieves certain knowledge, while Ahad Hadith

only give speculative knowledge and acting upon these Ahadith is only

preferable option. 73

As Hallaq argued, the same disagreement has been raised with regard to

“Sahih” Hadith: one group of jurists believe that Sahih Hadith may yield certain

knowledge and other jurists do not.74

As it is obvious from preceding explanation, the difficulty is the Hadith

has been considered one of the most important sources of law making. Then,

most of Islamic rules are mainly based on non-Mutawatir or Ahad Hadith that

even among Muslims themselves are controversial as to whether they yield

certain knowledge. While only a few, numerable Hadith are Mutawatir and give

a certain knowledge about particular issues, almost all Hadith even Sahih ones,

only give probable knowledge. However, the traditionalists, as explained above,

accept the certainty of these Ahadith, derive law and formulate rules based on

them.75

Within this traditionalist approach, many laws that are inconsistent with

Islamic principles of equity and fairness are justified as “based on Sharia” while

most of these laws are merely fallible human interpretation.

The dispute between traditionalists and reformists does not only rest on

the authenticity of Hadith itself, but also on how these reports are (mis)applied

and (ab)used in the formulation of laws and codes. The problems arising from

misapplication of Hadith lead to heated debate amongst modern Muslims

scholars. As Abu Sulayman explains, “The problem of the authenticity of the

73

Ibn Hajar Al-Asqalani,Nuzhah al-nathar, Al-Nukat Ala Nuzhah al-Nathr, p 51. 74

Hallaq, Wael B, The authenticity of prophetic ḥadîth: A pseudo-problem,Studia Islamica,

1999. p 85. 75

Ibid. p 88.


34

Sunnah is basically an expression and reflection of the unhappiness on the part

of Muslims with the centuries-old jurisprudence.”76

That is why reformists

prefer not to build laws based on Hadith or (at least) Ahad Hadith. As Farooq

affirms in his paper, “Hence, it is much desired that Hadith is used more as a

source of information as well as moral inspiration and wisdom than as an all-

encompassing and sacrosanct basis for formulation of laws and codes.” He

believes that because of the probabilistic nature of Hadith, Muslims should be

more careful in deducing rules from this source. He concludes:

“…Much more restrained approach needs to be taken, where Hadith is

used to arrive at laws or codes that have direct and serious implication for the

life, honor and property of people. Such restraint would also be relevant in

regard to any law or code that might be discriminatory or unjust. Also, it is

important that in deriving laws and codes, whenever appropriate and relevant, a

problem should be duly studied from an empirical perspective to better

understand the problems and conditions that the Islamic laws and codes are to

address.” 77

The final point in this section is that, as has been clarified above, the

difference between research on Quran and Hadith is that research in the Qur’an,

is restricted to the text. However, in Hadith in addition to the research of the text,

the chain of narrators, the historical classification and the identification as pure

or pure are to be considered as well.78

Through the chain of narrators and

transmitters and the process of preference of some Hadith over the others, we

have to admit the significant role played by human creativity in carrying

particular meaning and conveying the message contained in sources (Quran and

Hadith) of the Islamic law. Accordingly, we cannot ignore the important role of

human vices, political agendas and simple imperfections even in the collection

of Ahadith by different groups of Muslims. Rahman for instance, in Islamic

76

Abu Sulayman, Abdul Hamid A, The islamic theory of international relations: New directions

for islamic methodology and thought,Herndon, Virginia: International Institute of Islamic

Thought, 1987. p 83. 77

Farooq_2, Mohammad Omar, Islamic fiqh (law) and the neglected empirical

foundation,Unpublished, July, 2006. 78

http://www.Ahadithciences.com/HadithArticle.aspx?HadithArticleName=%E1%B8%A4ad%C

4%ABth%20Sciences;%20Past,%20Present,%20Future&ArticleID=99.

35

Methodology in History, explains the way political and social factors in early

Islamic history could not be easily isolated from the out product, namely the

Hadith and ultimately legal decisions. He puts it in the following terms: “The

majority of the contents of the Hadith corpus are, in fact, nothing but the Sunna-

Ijtihad of the first generations of Muslims."79

A good example of how a modern writer interprets the important role

played by this human factor in Hadith is the Moroccan feminist, Fatima

Mernissi. In a section of The Veil and the Male Elite, she reports results of her

investigation on the biographical background, dissenting biographies and

contesting opinions on several Ahadith and their narrators. She shows that in

many instances, some Ahadith have been, deliberately or not, attributed to

companions' narrations of the Prophet. A detailed analysis of these Ahadith

indicates inconsistencies, historical impossibilities and clear biases. She believes

that many Ahadith may have in fact been invented, labeled as authentic and used

to further certain political agendas.80

Another example is the work of Muhammad Haykal who confirms that

after Muhammad's death, Muslims were divided into different groups and then

created many Ahadith and reports aimed to support their own ideas. Some of the

successors such as Ali ibn Abu Talib attempted to prevent this from happening,

but they could not stop the Hadith narrators from fabricating their stories.81

To

account for this, a particular reason he thought of is that, “…. either in support

of a cause they advocated, or of a virtue or practice to which they exhorted the

Muslims and which they thought would have more appeal if vested with

prophetic authority.”82

As a result, by the end of the second century of Islam, it

was believed that many of fabricated Ahadith contained an unimaginable

amount of contradiction and variety.83

79

Rahmān, Fazlur,Islamic methodology in history, 2, Central Institute of Islamic Research,

1965., p 45. 80

Mernissi, Fatima,The veil and the male elite: A feministe interpretation of women's rights in

islam, Addison-Wesley Publishing Company, 1991.p 70. 81

Haykal, Muhammad Husayn,The life of muhammad, trans, North American Trust Publications,

1976. 82

ibid. lxxxiii 83

ibid.


36

Through this process (that even continues in the contemporary world)

influenced by political and social factors, many Ahadith have been fabricated.

Many scholars agreed that the fabrication of Hadith was a result of political and

social tensions and dissensions caused by the death of the Prophet, which were

carried into modern times. The author, in his Criticism of Hadith among

Muslims with reference to Sunan Ibn Majah, mentioned more examples of

grounds of fabrication: 84

1. political differences;

2. factions based on issues of creed;

3. fabrications by zanadiqah (enemies-within spreading heretical beliefs);

4. fabrications by story-tellers;

5. fabrications by ignorant ascetics;

6. prejudice in favour of town, race or a particular imam;

7. inventions for personal motives;

8. proverbs turned into Ahadith .

It is difficult to see how human narrators and a man-made science of

Hadith collection could have been free of any political or social biases. It is also

challenging to explain why most knowledgeable jurists from the different

Islamic schools differed on their approaches to Hadith, which holds true for the

way we judge the reliability of Ahadith for ourselves.85

Finally, the point has

been well explained by Eissa, in her view “We define laws and moral concepts

from our best understanding. If the Muslim polity determines for itself that it

desires the enactment of Islamic law, the distinction between the Truth and our

understanding of it must be clear. Our understanding must be framed in terms of

the will of the people, and not Divine Law.”86

84

Ghafar, Suhaib Hasan Abdul,Criticism of Hadith: Among muslim with reference to sunan ibn

maja, Ta Ha and Al Quran Society, 1986.pp. 35-44. 85

Evaluation and credibility of these claims is out of the scope of this research and I just have

attempted to bring the ideas around the political usage of Hadith which is helpful to elaborate

political and cultural usage of Shria. 86

Eissa, Dahlia and Laws, Women Living under Muslim,Constructing the notion of male

superiority over women in islam: The influence of sex and gender stereotyping in the

interpretation of the qur'an and the implications for a modernist exegesis of rights, Women

Living Under Muslim Laws, 1999. p 7.

37

1.5 Contemporary methods of formulation of Islamic law

During the Prophet's life, the Muslim community respected the Prophet's

authority as their spiritual guide, community and political leader as well as a

trusted and respected person. He mediated in cases of controversies and

provided counsel whenever an issue needed clarification, which earned him

respect of many Muslims. After his death, the Muslims had to find a correct way

to discover God's will and truth. They then created different sciences and

methods aimed to answer new problems from the primary sources of the Islamic

law like the Quran and Sunna.87

As Coulson explains, "from the readiness of the

Caliphs Abu Bakr and Umar to take advice, it is evident that the right of

interpreting the Quranic regulations was not the privilege of any special official

body but could be exercised by anyone whose piety or social conscience dictated

such a course.”88

This quotation lays emphasis on what has been pointed out

earlier that the Quran and Hadith like every other text are open to interpretation.

As a result, the first generation of Muslims represented a huge amount of

different interpretations which manifested in different schools of Islamic thought.

Some scholars, such as Schacht, believe that differences between schools were

also influenced by geographical factors, including differences in social

conditions, local custom and traditions.89

Although these interpretations should

87

Hallaq, Wael B,A history of islamic legal theories: An introduction to sunni usul al-fiqh,

Cambridge University Press, 1999.p 36. 88

Coulson, Nj,A history of islamic law, Edinburgh University Press, 1964., p.25. 89

Schacht, Joseph,An introduction to islamic law, Clarendon Press Oxford, 1964., pp. 28–36.

In the eighth century, a difference in legal approach arose amongst Islamic thinkers in two

prevailing schools of legal thought. The traditionalists (ahl al-Hadith) relied solely on the Quran

and the sunna (traditions) of the Prophet as the only valid sources for jurisprudence, such as the

prevailing thought emanating from Medina. The non-traditional approach (ahl al-ra'y) relied on

the free use of reasoning and opinion in the absence of reliable aHadith, which was heralded in

Iraq. The reason for the difference in technique is that in Medina, there was an abundance of

reliable aHadith that scholars could depend on for forming legislation, since the Prophet lived

the last ten years of his life during a period of legislation in the young Muslim community. In

Iraq, the sources that were available were not as reliable as in Medina and so the jurists had to

turn to analogy because of their circumstances. Therefore, a Hadith may have been accepted by

Malik (from Medina) and not by Abu Hanifa (from Iraq) who had to use analogy in the absence

of reliable Hadith. A challenge that jurists had to reconcile was which of the Prophet’s actions

and decisions were religiously binding and which were merely a function of personal discretion

of the Prophet? In general, ahl al-Hadith eventually lent legislative significance to much of the

Prophet’s decisions, whereas other schools tended to distinguish between the various roles that


38

be done through the accepted methods, Muslims attempted to limit these efforts.

The main reason underlying this choice is that they wanted to keep the identity

of Islam, maintain and protect the system as a whole. As a consequence, the

sources of law making in Islam in terms of Ijma and Qiyas (or Aql) and other

Islamic sciences were developed. This tactic ended up preventing non-

specialists from participating in the process of law making; thus eliminating

some schools. Only the most important ones, the so-called Hanafi, Hanbali,

Maliki and Shafii, the names of which were inspired from those of the jurists

who founded them, remained. These schools belong to the Sunni school of

thought. However, the situation is a bit different with regard to the Shiite who

accepted twelve Imams. After the death of the Prophet, Shiite Muslims opted for

referring to Imams in order to find the solutions for legal or non-legal problems.

The whole process of asking questions from Imams (for who believed in twelve

Imams) took around three centuries, which clearly shows that this diversity in

opinions of Shiite Muslims in the process of finding the will of God was less felt

compared with the Sunni school.

On the other hand, Muslims, in general, wanted to keep Islamic law as a

dynamic law which could allow them to answer all today’s questions within the

system itself and therefore developed the science of Ijtihad. The term Ijtihad

literally means hard endeavoring or strenuousness and is understood by classical

Muslim scholars as “the exertion of mental energy in the search for a legal

opinion to an extent that the faculties of the jurist become incapable of further

effort.” 90

“Ijtihad” as a legal term means an attempt made by jurists in the

process of making legal decisions for new situations and newly arisen problems,

which can be done through sources of Islamic law such as the Quran, Sunna,

“Aql” or “Qiyas”. By using and interpreting the Islamic sources, and general

principles proven in a science called legal theory, guidance and rules are derived

and new laws including civil and criminal laws are made.

For solving social and legal problems, one must examine the textual

sources of the Islamic law; mainly the Quran and traditions narrated from the

the Prophet played in his life. intellectual Background: Islamic Sources of Information and their

Development into Islamic Law by Muslim Women's League September 1995. 90

Hallaq, Wael B, Was the gate of ijtihad closed?,International Journal of Middle East Studies,

16, 1984. p 3.

39

Prophet and find legal solutions and principles accordingly. Consequently,

through applying these principles and legal solutions, up-to-date criminal laws

can be made for solving new problems. These kinds of rules will be in the main

chart of categories of crimes in the Islamic law, which will be explained in the

next chapter. One of the basic distinctions in this regard is the question of who

is qualified to do Ijtihad and who is not. Who has enough qualification to deduce

the rules and principles? Theoretically, with regard to Islam, it is the duty of all

Muslims to find out the will of God themselves. They are also required to do

their best to understand and discover the way of life as God expected; which of

course, should be in the framework of the Islamic sciences and accepted

methods.91

Technically, people who are eligible to deduce the rules are “Mujtahids”,

the ones who have wide knowledge of the particular sciences such as legal

theory, Usol sciences etc. In other words, they are deemed legitimate because

they have considerable knowledge that qualifies and allows them to deduce the

will of God from the primary sources of law making in the Islamic law. Those

who are not qualified to practice Ijtihad are called Muqallids (followers).

According to Islam, all Muslims can do Ijtihad provided they study a particular

science and methods of doing Ijtihad. However, if it is not possible for them,

they become followers and should then search for the character and

qualifications of the person whose beliefs they adhere to and which they find the

most credible regarding the reflection of God’s will and then follow him.92

In

other words, this system was established to prevent all individuals from

practicing Ijtihad and making rules uncontrollably. Muslims developed a

methodology for using Ijtihad, Usul al-fiqh and since then, the task of Ijtihad has

not been in the hands of everybody, but only a few people who occupy a special

role in the Islamic law and who are highly qualified to do the job. This

classification attempts to keep unity and stability of the system as well.

91

The only limitation is the Quran as a direct and unchanged word of God. With regard to

Shiite the limitations include Quran and Ahadith from Imams as well. 92

For more information please see: Hallaq, Wael B,Authority, continuity and change in islamic

law, Cambridge University Press, 2001 , Krivenko, Ekaterina Yahyaoui,Women, islam and

international law: Within the context of the convention on the elimination of all forms of

discrimination against women, 8, Brill, 2009 , ibid. Mallat, C.,The renewal of islamic law:

Muhammad baqer as-sadr, najaf and the shi'i international, Cambridge University Press, 2004.p

45.


40

Today, in many Islamic countries, Islamic decisions ranging from

personal to political ones are made in the form of Fatwas, or religious decisions

that are directly or indirectly transformed into formal and official legislative

systems.93

In this context, the important role played by Mujtahids is clear

because, sometimes, in the states that aim at having Islamic law; jurists will get

the authority to determine the content of law and its application in certain cases,

or their opinions impact on official legislation. However, we should keep in

mind that in most cases, they (Mujtahids) even do not claim authorized power

and attempt to be independent from politics etc.94

Nevertheless, the history of

some states such as Iran proves that in particular periods, these jurists as

Mujtahids could force the states to apply Islamic rules such as the Fatwa issued

by Ayatollah Mirza Hassan Shirazi (Mirzaye shirazi). A good example here is

the rule against tobacco consumption supposedly issued in December 1891. It is

important to note that, sometimes, in other periods of history, states used jurists

to advance their aims and interests; implying the fact that that jurists can be

influenced by different factors like geographical and social conditions, local

custom and the political situation.95

Furthermore, the ambiguity and interpretable concepts stemming from

the Ahadith or other sources of Islamic texts, as explained above, has been

caused by the fact that Islamic law can sometimes be used as a technique to

93

Masud, Muhammad Khalid, Concepts of fatwa process and function modern

usage,islamicus.org, , ibid. , Rahmdel, Mansour, The role of the courts in the perform of iranian

criminal law policy, Criminal Law Forum, vol. 17, (2006), pp. 59-70.Criminal Law Forum. 94

For details on position of Muslim scholars and their educational system during the classical

period see e.g. in Makdisi, George,The rise of colleges. Institutions of learning in islam and the

west, Edinburgh University Press, 1981.pp. 187–223;Makdisi, George, Freedom in islamic

jurisprudence: Ijtihad, taqlid, and academic freedom,Les Belles Lettres, 1985. More about the

relationship between jurists and official ruling elite during this period:Emile, Tyan,Histoire de

l’organisation judiciaire en pays d’islam, Leiden: E.J. Brill, 1960, 2nd revised edition , Hallaq,

Wael B,Authority, continuity and change in islamic law, Cambridge University Press, 2001 ,

Khadduri, Majid and Liebesny, Herbert J,Origin and development of islamic law, 1, AMS Press

New York, 1984. pp 236–278. 95

It should be noted here that, in some parts, the process of Ijtihad differs from Sunni and Shiite.

From a traditional point of view of Sunni school of thought, the strategy is to limit the number of

jurists and increase the number of followers or exclude Muslims from the interpretative process.

However, the Shiite encourages Muslims to be a high-qualified jurist, such as what is happening

in Iran about the increasing number of Muslims who attempt to study on Islamic field up to a

very high level, in order to be a jurist.

41

proffer essentially political decisions. Examples will be provided at a later stage;

here it suffices to say that there are different Fatwas (religion rules produce by

Mujtahid) about one topic, in this case, the government is the one that is

responsible for choosing which idea to consider in the official legislative system.

Because not all the readings, interpretations and ideas of jurists can be taken into

account for the purpose of official legislative systems. This is a clear indication

that, in this process, the interpretive mechanism can be controlled by the power

of states. Ekaterina Yahyaoui Krivenko confimed this idea in her book as well,

which she puts in the following terms, "With the development of State structures

and centralization of State power this law creating discourse became dominated

by State power, was influenced by it and served not only personal interests but

also participated in the articulation, justification, and protection of State

interests”. She made an important point by noting that usually this process of

protection of states’ interest is hardly controlled by observation mechanisms (or

control mechanisms of the correctness) in Islamic states.96

Another point related to this issue is the emerging thesis on the “closer of

Ijtihad” that has been supported by some Muslims scholars in traditionalists’

discourse.97

This theory suggests that by the end of the tenth century, no new

interpretations and by the same token law-creation was needed. This theory is

even still used nowadays to prevent any changes in traditional rules.98

Even

though some scholars disagree with this idea and believe that the Ijtihad is still

possible, 99

the possibility of political use of Sharia and the effects of

geographical, social conditions and local customs imply a kind of dependency

and a variety of the Islamic judicial thinking. It represents the fact that what we

face in some Islamic countries, mainly in their legislative systems, is a very

complicated construction, called traditional or classical Islamic law. The latter

evolved following human beings’ influence, but was then preserved as

unchangeable rules because they were perceived as of divine origin. This

situation can negatively impact on the protection of women in Islamic

96


convention on the elimination of all forms of discrimination against women, 8, Brill, 2009., p 56. 97

ibid., p 56. 98

For more information pleas see: Hallaq, Wael B, Was the gate of ijtihad closed?,International

Journal of Middle East Studies, 16, 1984. 99

ibid.


42

countries100

which will be elaborated on later. On the basis of what precedes, it

is clear that the situation of Islamic countries is the result not just of religion

itself (that aims to cause difficulties for human beings), but it also follows from

the misuse or misapplication of religion by regimes that do not want any

development towards improving the situation of women in some Islamic

states.101

1.6 Different Interpretation of Islamic law and its global effects

The aforementioned analysis of the system of law-making in Islam

demonstrated the influence of, geographical, political and cultural factors. It also

showed that human perception of original Islamic texts can up-date Islamic rules.

The tendency of states to implement particular interpretation, to prioritize the

traditional point of view on Islam and the political use of Sharia impact on the

relation between Islamic states and international community (or non-Islamic

states). For instance, a great number of international human rights instruments

aim at the effective protection of women's rights. However, a closer look at the

national level, as it will be explained in the following chapters, reveals not only

that many governments do not wish to pay sufficient attention to the situation of

women, despite their international obligations, but that they also intend to put

women in a subjugated position in accordance with religious, cultural or

traditional customs.102

As Kathleen Cavanaugh explains,

If our reading of international law is one in which the space between

law and politics is blurred, then law cannot be read as either ‘divine’ or

unmediated but must be understood “as an aspect of hegemonic contestation, a

technique of articulating political claims in terms of legal rights and duties”. 103

100

Mir Hosseini, Ziba, Muslim women’s quest for equality: Between islamic law and

feminism,Critical Inquiry, 32, 2006.p 633, please see also: Otto, J.M.,Sharia and national law in

muslim countries: Tensions and opportunities for dutch and eu foreign policy, Amsterdam

University Press, 2008. 101

Yahyaoui Krivenko, Ekaterina, Islamic view of women's rights: An international lawyer's

perspective,JE Asia & Int'l L., 2, 2009. p 103. 102


convention on the elimination of all forms of discrimination against women, 8, Brill, 2009. p 4. 103

Kathleen Cavanaugh, Narrating Law in Emon, A.M., Ellis, M. and Glahn, B.,Islamic law

and international human rights law, OUP Oxford, 2012. p 17.

43

The quote makes clear that any law, be it Islamic or not, can be used for

political purposes. As Cavenaugh points out, although Islamic states show that

they want to participate and to interact with the international community through

the ratification of different international human rights treaties, they have also

established separate Islamic human rights charters based on Islamic sources. The

1990 Cairo Declaration on Human Rights in Islam and the 2004 Arab Charter on

Human Rights, the Universal Islamic Declaration of Human Rights adopted by

the Islamic Council of Europe in 1981104

and the 2003 Beirut Declaration on the

Regional Protection of Human Rights105

are examples of these efforts. The

principles included in these declarations are similar to those in the UDHR such

as “Entitlement to All Rights and Freedoms”, “Right to Life”, “Prohibition of

Slavery”, “Right to Property” and “Right to Privacy” etc. However, these

principles have to be in conformity with Islamic law. Cherif Bassiouni has

clarified that the concepts of the inherent dignity of the individual and

fundamental rights mentioned in international conventions are acceptable by

Arab states insofar ….that international conventions protect the same rights

protected by Sharia.106

This question then is what rights are included in the

Sharia, and whether they have the same meaning and range as in international

law. As an illustration, let us use the example of one of the best-known Muslim

jurists, Maijid Khadduri. He described the five most important principles of

human rights in Islam as: (1) dignity and brotherhood; (2) equality among

members of the community, without distinction on the basis of race, colour, or

class; (3) respect for the honour, reputation, and family of each individual; (4)

the right of each individual to be presumed innocent until proven guilty; and (5)

individual freedom.

104

Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe on

19 September 1981/21 Dhul Qaidah 1401. 105

The Beirut declaration on the Regional protection in the Arab world was an outcome of the

conference in Beirut, organized by the Cairo institute for Human Rights Studies, which

supported the Human Rights Universality. The conference brought together 80 participants,

including 36 NGOs from the Arab region and 11 international NGOs, 15 independent experts

and human rights defenders, and 7 government officials, among them Arab League

staff.http://www.cihrs.org/wp-content/uploads/2013/12/LAS-report-final.pdf . 106

Bassiouni, M Cherif, Sources of islamic law, and the protection of human rights in the

islamic criminal justice system,The Islamic Criminal Justice System, 3, 1982.


44

However, do these principles have the same scope as in international

law when they are interpreted in practice by the governments of Islamic States?

For instance, as Maijid Khadduri acknowledges, originally dignity and

brotherhood only extended to believers in Islam. Similarly, equality did not

apply to other religious groups, although in the past, other religions were

tolerated in lands under Islamic control.107

Another scholar believes that the rights of individuals are less respected

because Islam rejects individualism and favors communalism. She then

concludes,

To judge Islam fairly today, it must be subject to comparison with

currently prevailing human rights standards, especially where Islamic states

have participated in international law making processes and have endorsed

human rights instruments.108

In her view, when Islamic states accept international human right norms

protecting individuals, they have to move away from a conservative reading

(that stresses the community) and re-interpret Islam so that it gives more

importance to individuals. In this regard, Cavanaugh refers us to the work of

Ann Mayer and upholds that: whereas International Human Rights Law

provides for individual rights protection, the narrative that accompanies Islamic

human rights schemes remains a purposeful “idealistic abstraction.109

While the

nature and spirit of Islam carries invaluable ideals, the Islamic states adopt

legislation for particular (mainly political) reasons which are then justified in the

name of Sharia.

Cavanaugh also stresses the different readings of the right to equality

between Islamic states and international communities as a source of

107

Khadduri, Majid, The islamic concept of justice,Baltimore: The Johns Hopkins University

Press, 165, 1984. pp 36-37. 108

Arzt, Donna E, Application of international human rights law in islamic states, the,Hum. Rts.

Q., 12, 1990.P 206. 109

Cavanaugh, Kathleen,Narrating law in islamic law and international human rights law,

OUP Oxford, 2012 , Mayer, A.E.,Islam and human rights: Tradition and politics, Westview

Press, 2007.

45

contention.110

This is reflected in by the reservations Islamic states make to

different international documents111

such as the reservations made by Egypt to

Article 16 of the CEDAW112

as well as several reservations to Article 23 of the

ICCPR.113

Different interpretations of Islamic texts influence differently on the

relations between Islamic and non-Islamic states. Legal texts – of an Islamic or

non-Islamic nature – can be read differently in order to achieve a specific goal,

such as the justification of war:

In the Muslim world, those who invoke jihad, for example, engage

earlier doctrinal writings on jihad, as well as their exegeses of Quranic and

Hadith texts to justify the use of political violence in the struggle against

regimes deemed to be corrupt. Similarly, in the so-called ‘war against

terrorism’ the use of militant democratic language has been read into acts of

anticipatory self-defense.114

Using interpretation of text as a means to justify an end is not the

province of Islamic States only.

In contrast to traditional views, emerging approaches within the Islamic

human rights framework deal differently with issues such as equality.115

For

instance, Principle 3 of the Beirut Declaration on the Regional Protection of

Human Rights marks a departure from the cultural relativism. It states that,

110


OUP Oxford, 2012. p 49. 111

ibid. pp. 41- 49. 112

Convention on the Elimination of All Forms of Discrimination against Women [hereinafter

CEDAW], G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1981). 113

The Mauritanian reservation to article 23 which states, “The Mauritanian Government

interprets the provisions of article 23, paragraph 4, on the rights and responsibilities of spouses

as to marriage as not affecting in any way the prescriptions of the Islamic Shariah” is reflective

of the view of a number of other states, including Algeria and Kuwait and, separately, Israel who

also invoked a reservation to signal the precedence for ‘religious law’. 114

For more information on the different reading of text within the international law see:

Kathleen Cavanaugh, Narrating Law in, Emon, A.M., Ellis, M. and Glahn, B.,Islamic law and

international human rights law, OUP Oxford, 2012. P 51. 115


OUP Oxford, 2012. P 49.


46

Civilization or religious particularities should not be used as a pretext to

cast doubt on and to question the universality of human rights. The

“particularities” that deserve celebration are those which make a citizen have a

sense of dignity, equality and enriches his/her culture and life, and promote

his/her participation in their own country’s public affairs. Assuring the tolerant

principles of Islam and religions in general should not be put in a false

contradiction to human rights principles. The conference [rejects the authority]

of aged interpretations of Islam that distort Islam and insult Muslims and leads

to violations of human rights, particularly when excluding women and not

allowing freedom of thought, belief, creative art, literature and scientific

research.116

In fact, the principle juxtaposes traditional interpretations of Islamic

rules. It demonstrates that a modernist approach to Islamic text leads to a

different representation of Islamic law. While in the past Islam rejected so many

terrible customs, such as infanticide and blood feuds at that time, and laid down

rules for polygamy, today it can protect equal rights for women and men and

remove contradictions with international human rights principles.

In conclusion, the contradiction between Islamic and international law

does not come from Islamic law itself, but from specific interpretations of

Islamic law and misapplication of Islamic rules. The solution to the

contradiction can come from within Islamic law itself. In this approach, while

certain concepts are given both in Islamic law and in human rights, law can

always be developed and interpreted. Islamic law has a very strong basis to

protect human rights both in the Quranic text and the traditions of the Prophet.

Even though Islamic principles are frequently violated by the Islamic states,

even on their own territories against different groups, resulting in conflicts with

international law, the values contained in these principles constitute

opportunities to find a common ground on the issue of human rights and a

proper system and method to protect them.

116

Beirut Declaration, Beirut , 18, 19 and 20 October 2003, Article 3. Availble at

http://www.cihrs.org/wp-content/uploads/2013/12/LAS-report-final.pdf. .

http://www.cihrs.org/wp-content/uploads/2008/12/%22#$%&-%1E%1F%20!.pdf.

47

Finally, it should be noticed that while this research is not going to focus

on the situation of women under the Islamic law in general or analyse the

different approaches with regard to women, it attempts to show that there are

possibilities to reform unjust rules and conform to international norms even

from within the system itself and even in the framework of traditional

methodology of Islamic legal theory. The challenging nature of rape and

protecting women, who are victims of this crime, as investigated in the present

study, refers to the fact that this research will focus on issues that cannot be

easily reconciled with the current (political and cultural) situation in Islamic

states while they play a significant role in these countries from a legislative

point of view.

In the following part, the situation of rape victims within different

schools of Islamic thought will be discussed. It will be demonstrated the extent

to which different readings of Islamic sources or different interpretations of a

text(s) can have influence on the rights of these victims. Then the situation of

these victims at a domestic level will be evaluated, choosing Iran, a country that

has adopted particular interpretations of the Islamic law, as a case study.

Chapter 2: Rape in Islamic law

48

2 Chapter 2: Rape in Islamic law

Chapter 2:

Rape in Islamic law

2.1 Introduction

The contemporary treatment of rape in the penal codes of Islamic states

has come under increasing assessment over the last two decades. Many cases in

which women claimed to have been sexually assaulted have been highlighted,

without, however, providing enough evidence to prove non-consent.

Consequently, in some cases, victims have been punished for Zina117

(fornication) because their allegations were consider as constituting confessions

to consensual sex. These cases mostly happened in the context of Islamic

countries where national efforts aimed to officially recognize Islamic law.118

These cases have inspired human rights groups and Muslim reformers to

examine whether modern “Islamic” rape laws are really in respect of the

traditional Islamic law or if rape has been truly put under the Zina category or

not.

117

Zina means having extramarital sexual relationship, which is forbidden under Islamic law. 118

Hina, Azam, Rape as a variant of fornication (zina) in islamic law: An examination of the

early legal reports,The journal of law and religion forthcoming, SPRING 2013., p 1.

49

In this chapter, the treatment of rape in Islamic sources including the

definition of rape and its punishment will be discussed. It will show whether

rape in principle has been considered as a crime in Islamic law, and if so which

category of crime it is or it should be. In order to demonstrate the extent to

which different interpretations of Islamic sources can have influence on the

rights of the victims of rape in different Islamic states, different opinions from

various Muslim scholars will be considered. A discussion of the different

viewpoints will follow and it is hoped that it will give more insights and

therefore offer the first step in the direction of putting rape in the correct

category of crime or at least encourage this debate, which will be elaborated

more in the next chapters as well. Before embarking on the core of this chapter,

it is important to explain some Islamic key terms, namely the category of crimes

in Islamic legal systems and the nature of rights and crimes under the Islamic

law.

2.2 The category of crimes in Islamic criminal law

Under Islamic law, crimes fall into four categories: “Hudud” (Legal

Punishments) “Qisas” (Retaliation) “Diyat” (s. Diyah) (Blood-Money) and

“Tazir” (Discretionary Punishments).119

” This classification is based on two

sources of the Islamic law, namely the Quran and Traditions of the Prophet

(Sunna).

Hudud ( Singular: Had)

Hudud meaning, "limits" is the most important category that includes the

crimes specified in the Quran. Such crimes include theft, adultery, fornication,

alcohol use, rebellion, and apostasy that are considered crimes against God and

society.

119

For more information please see; Bassiouni, M Cherif,The islamic criminal justice system,

Oceana Publications New York, 1982 , El-Awa, Mohamed S,Punishment in islamic law,

American Trust Pub., 1981 , Lippman, Matthew, Mcconville, Sean and Yerushalmi,

Mordechai,Islamic criminal law and procedure: An introduction, Praeger New York, 1988.


50

Qisas and Diyah

These categories include the crimes committed against people, such as

murder and battery. The punishments for these kinds of crimes are retaliation

(Qisas) or financial compensation (Diyah or blood money). The heirs of the

victim exclusively hold the right of Qisas. The heir of a victim has the following

options: he or she may ask for retaliation, seek monetary compensation or

demand an apology. This approach is a mixture of “restorative justice” and

“retributive justice”. Therefore, Diyah is compensation paid to victims or their

family. One who seeks compensation cannot demand retribution.

Tazir

This category includes any crime that does not fit into Hudud or Qisas

and has no specific punishment in the Quran. These types of crimes range from

homosexuality to perjury through treason. The punishments in this category can

be determined by legislative system(s) or by judges. These acts mainly endanger

public order or state security. An important function of Tazir is to provide

grounds for the punishment of those who have committed crimes which are

somewhat similar to Hudud crimes, or crimes against people, but which cannot

be sentenced to the appropriate punishment because of procedural reasons. For

example, Tazir punishments are applied for acts that do not have adequate

requirements of Hudud or Qisas such as theft of an item that is not of sufficient

value to qualify for a Hudud offence. This is also the case for acts that are

logically punishable by Hudud, but due to insufficient or doubtful evidence,

should be punished by Tazir. "Tazir" is the most flexible category of Islamic law

that can determine punishment according to Islamic principles and compatibility

with social, cultural and legal developments.

The most important differences between these categories are related to

this issue of the extent to which they are a violation of rights of individuals or

God or society. For example, in the Hudud category, God’s rights are given

more importance while in the Tazir category the rights of society for having

51

public order or individual rights are considered as more important; more details

will be provided in the next section.120

2.3 Different types of rights and crimes under Islamic criminal law

Before discussing the definition of rape and its punishment, it is worth

looking at different types of rights in Islamic law. This classification will help to

fully understand the expressions and terms used in the following section. In

Islamic jurisprudence, rights are divided into two known types: the rights of God

and the rights of people. Different suggestions have been offered in defining

each of these types. Concerning criminal law, violating the rights of God

deserves some particular punishments because it is mainly synonymous with

disobeying spiritual orders and sometimes performing sinful acts. For instance,

most of Hudud crimes such as Zina are classified in this category.121

Therefore,

forgiveness of the complainant (if there is any) does not have any influence on

removing criminal or civil responsibility. Violating the rights of people includes

crimes by which the rights of people are violated and involves damaging them,

for instance, the issuance of a bounced cheque, barratry and abusiveness.122

There are different consequences that followed this division some of

which have been discussed by Muslim Jurists. An example of this is the book

entitled Fiqh al-Qadhā written by ayatollah Ardebili in which 14 effects related

to this separation have been outlined. The most important ones have been

mentioned here:123

1- The right of God is subject to the reduction and commutation of

sentence in contrast to the right of people.

2- The issuance of sentence in absentia is lawful in case of violation of

people's rights in contrast to a violation of the rights of God.

120

This categorization is the same between Sunni and Shiite. 121

Marashi, Mohammad Hasan New attitudes in criminal laws of islam 1, Mizan publication,

1994. p 237. 122

Peters, Rudolph,Crime and punishment in islamic law: Theory and practice from the

sixteenth to the twenty-first century, Cambridge University Press, 2005. p 7. 123

Mousavi Ardebili, Abdu Alkarim,Fighh alghada The institution of Alnashr lejameah almufid,

A.H.,Altabah alsaniah, 2003.


52

3- As to a violation of rights of people, the issuance of a sentence and its

execution is based on the claim of a complainant (or sometimes prosecutor) in

contrast to the violation of rights of God.

4- The judge has the right of amnesty in some cases in case the rights of

God are violated, in contrast to a violation of the rights of people.

One of the important consequences of this categorization is the extent to

which the judicial system is serious in the discovery, investigation and

prosecution of the crime. With regard to crimes related to the violation of rights

of God, which are devoid of any rights of people, (such as intimacy, adultery, or

having consensual sexual relationship outside of marriage) state officials, judges

etc are not obliged to report and prove crime. Even the numerous Ahadith and

different legal codes, some of which will be referred to in the following parts,

show unwillingness of judges and legislators in the disclosure and prosecution

of these crimes. On the other hand, regarding the crimes that violate the rights of

people, the judicial system requires protecting the rights of individuals and does

its best to find the truth.124

2.4 Definition and punishment of rape in Islamic criminal law

2.4.1 Introduction

Under different schools of Islamic law, rape has been defined as a

coercive form of illegal sex or fornication (Zina). Based on this definition, all

the legal elements related to Zina such as its definition, punishment and the way

of proving by evidence - are applicable to rape as well. In this law, Zina is

defined as sexual intercourse between a man and a woman who are neither

married nor have a relationship through ownership.125

Hadd is the punishment

for the sane Zina committers, whether male or female, which is 100 lashes and

exile for unmarried free people, stoning to death for married or previously

married free people, and 50 lashes for slaves. Under this perspective, rape

124

Ibid.,p 452. 125

In traditional Islam, “have a relationship through ownership” refers to the relation between

slave and owner since the slave was supposed to be a property of owner.

53

simply means non-consensual Zina, which means that it is totally based on the

elements and punishment of rape.

This chapter will provide a description of how rape was dealt with in the

early Islamic law and how its definition and the punishment were based on the

Quran and Hadith. In addition, this part of the thesis will show that the Islamic

legal system has great potentials to criminalize rape and implement the

protective policies in harmony with and supported by Islamic principles. This

purpose can be achieved by focusing on these Islamic principles and rules,

which are against rape, and by developing protective strategies. The most

important aim of this part is to illustrate Islam’s policies and principles

regarding the prohibition of rape and its punishment in the Islamic criminal law.

It should be mentioned that although Islamic schools of thought have differences,

there are many commonalities amongst them as well. Since this part will include

both Sunni and Shiite, everything that is common amongst them will be

explained altogether. Then where there are differences, distinctions will be

highlighted. Therefore, no reference to a particular School should be interpreted

as a point common amongst all.

2.4.2 Origins of rape law in the Quran

2.4.2.1 The principle of Zina prohibition

The Arabic term Zina is to some extent different from similar words in

English, i.e. fornication and adultery, because in the Fiqh or Quran, it is

sometimes referred to as “nonconsensual sex” as well. Consequently, this term

can be applied to a wide range of acts.126

In the Islamic culture, this act (Zina) is

also considered as one of the major sins (kabirah), which has been mentioned in

at least twenty-seven verses of the Quran. This is supported by Alwazir who

states that

126

Sonbol, Amira, Rape and law in modern ottoman egypt, ,Women and Sexuality in Muslim

Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. p 310.


54

Since sexuality is sacred in the realm of marriage, sexuality outside of

marriage becomes an unholy action that destroys the essence of marriage, and

therefore destroys the family life, and its extension, the ummah. 127

Alwazir’s position on the issue of Zina is very clear as appears in the

quotation above, where she equates it to a knife to a happy marriage. Sexuality

in marriage is normally sacred, but outside of marriage it becomes an unholy

action and can cause the marriage to fall apart, leading to devastating

consequences in a family life and also the society as a whole.

Referring to the Quran, one can find many verses explicitly condemning

Zina, even when there is no mention of the crime of rape. This is exemplified in

the following excerpt from the Quran where it says do not approach Zina, for it

is an abomination and an evil way.128

It is important to mention that the Quran

does not directly define Zina, but just mentions what is not considered Zina. In

fact, the Quran introduces the act of Zina by distinguishing lawful sexual

relationships from unlawful ones and by referring to Zina as transgression,

which is put in the following terms:

And those who protect their private parts except from their spouses or

those whom their right hands possess, such are without blame. And whosoever

desires beyond that, such are transgressors (`ādūn).129

According to the Quran, Zina is a grave sin which must be avoided by

the believers, especially the women, as it is as abhorrent as such negative acts

like Fahisha, or “shameful deed: Nor come nigh to fornication (Zina): For it is a

shameful deed (fahisha) and an evil road”.130

And “O Prophet! When believing

women come to you to take the oath of fealty to you … that they will not commit

Zina… then receive their oath …”131

. Based on the Quranic perspective as

mirrored in the above excerpts, the only lawful sexual relationships are the ones

occurring within marriage.

127

Alwazir, Atyaf, Ymeni women: The bearers of honor,Al-Masar, Winter 2004.p 24. 128

- 17:32. 129

- 23:5-7. 130

- 17:32. 131

- 60:12.

55

The punishment of the committers of Zina has also been mentioned in

the Quran. According to Q 4:15, a woman committing Zina should be sentenced

to a lifelong confinement, which is stated as follows: If any of your women

commit lewdness (fāhisha) … confine them to houses until death claims them, or

until God makes another way for them.

This early sentence was, however, later abrogated by another decree by

which flogging both sides of Zina with one hundred stripes were laid out. The

Quran issues this corporal punishment of Zina as the following verse illustrates:

The fornicatress (zaniya) and the fornicator (zani), flog each of them

with a hundred stripes, and do not let compassion for them overtake you in [a

matter of] the religion of God… .132

The Quran also modified the earlier punishment of Zina for slave women

and announced only 50 stripes for such a person, as can be seen from the

following verse: [I]f they commit sin (fahisha), then upon them is half the

punishment of that which is upon free women (muhsanāt).133

In short, the punishment of Zina mentioned in the Quran as describe

above, is 100 stripes for all committers of Zina except for slave women, for

whom 50 stripes have been ruled.

2.4.2.2 The principle of freedom and prohibition of using force

As the distinguishing element in rape is an absence of consent, we may

ask if the Quran addresses sexual volition in any way. Generally speaking, one

of the basic principles used in the Islamic law is its emphasis on the right of

individuals to fundamental freedoms. There are many verses in the Quran about

the freedom of mankind such as freedom to choosing Islam as one’s religion.134

The Quran says that, “and if we had willed, we could have given every soul its

guidance, but …. I will wait until the judgment day.”135

This word is also used

132

24:2. 133

4:25. 134

The issue of freedom to choose another religion or convert to another one is contested issue

between fundamentalists and modernists Muslims. 135

32: 13.


56

similarly in another verse where it says, “Perhaps, you [Muhammad] would kill

yourself with grief that they will not be believers” and “If we willed, we could

send down to them from the sky a sign for which they believe me.”136

Verse 7:

157 says that “… God relieves humankind of their burden and the shackles

which were upon them […]. The above verses mean that God does not like

forcing humankind to believe in Him.137

Particularly, with regard to forcing women to sex, the Quran prohibits

people from forcing female servants to earn money from adultery as illustrated

in the following verse:

.And do not compel your female servant to prostitution, if they desire

chastity, to seek [thereby] the temporary interests of worldly life. And if

someone should compel them, then indeed, God is [to them], after their

compulsion, Forgiving and Merciful138

.

Although prostitution is distinct from sexual violence, and although this

verse does not talk about sexual decision or coercion within the relationship

between master and slave-woman, the verse indeed offers some value to women

sexual volition. This verse is also important as it employs the verb “Akraha” (to

coerce) next to cohabitation. Therefore, this Quranic verse indicates that rape is

forbidden in the Islamic law.

What is particularly important is that the woman who are forced to sex is

forgiven for engaging in Zina. Therefore, the juristic principle that one is not

morally responsible for sex acts carried out without her will can be originated

from this verse. A conviction of coercion in sexual or marital matters can also be

found in Q 4:19, in which levirate marriage has been pronounced to be

prohibited. It is expressed in the following terms: “O you who believe, it is not

permissible to you to inherit women against their wills (kurhan).”139

The subject

of these verses has been confirmed by another that distinguishes between one’s

interior faith and any externally compelled statement of disbelief, which is

136

26: 3, 4. 137

7: 157. 138

24:33. 139

4:19.

57

described as “one who is coerced (ukriha) while his heart is content in faith (wa

qalbuhu mutma’innun bi’l-īmān).”140

All these verses together, referred to the

importance of considering women’s decision in matters of sexuality and

marriage. They also confirmed the non- responsibility of coerced women.

In conclusion, the Quran implicitly and through some principles views

rape as a crime which should be properly punished, but it does not explicitly

address or mention its definition and punishment. As a result, the Quran cannot

be regarded as the main source for extracting Islam’s views in relation to rape.

Then, Islamic legal doctrines on this crime can be inferred from the second

source known as Hadith which reflects the sayings and acts of the authoritative

figures such as the Prophet, his descendents and companions. In the following

section, the Islamic legal view on rape from the perspective of Hadith will be

discussed.

2.4.3 The origins of rape and Zina law in legal reports (Hadith)

In this section, the most important reports expressed by the Sunni Hadith

collections of the second and third centuries after the Prophet’s demise will be

examined. These reports contain the opinions of early Muslim scholars which

later became the bases of the classical schools of the Islamic Law. By exploring

these early opinions, we can discover the initial view of Islam regarding the

nature of rape and Zina and how these two crimes were considered. A thorough

examination of these reports will help us to find out if, in the early stages of

Islam rape was recognized as an independent crime or was defined as a coercive

variant of fornication (Zina).

As mentioned earlier, in the Islamic culture, Zina has been discussed

from two different perspectives, i.e. Zina as an illegal but consensual

relationship and Zina as a coercive sexual act. Considering the early Islamic

documents, they show that Zina was defined in a way that both consensual and

coercive aspects were included. Consequently, the suggested punishments were

140

16:106.


58

common for the two crimes.141

Concerning the punishment, the Quran 24:3

indicates that one hundred strikes of lashes are executed to both male and female

committers of Zina if unmarried. The punishment of married committers of Zina,

although not mentioned explicitly in the Quran, has been announced in the

Hadith. It consists of stoning the commuters to death.

However, it is also inferred from the Hadith that although both forms

consensual and coercive unlawful sex called Zina, the Prophet differentiated

between them. For instance, according to the Hadith, the Prophet punished a

man who had committed Zina optionally, but did not administer the same

punishment to a woman who had been forced to do so. This distinction indicates

the extent to which Islam and the Islamic legislator gave great honor and dignity

to women. The victims who are usually women were not viewed as committers

of the crime and were not subjected to punishment. It is worth noting here that

there was no extra punishment for a man who had forced a woman to sexual

intercourse. Here, the research will refer to two groups of Hadith indicating a

consensual form of Zina and a non-consensual one.

There are at least six prophetic legal reports in Sunni Hadith sources in

which the consensual form of Zina has been discussed indicating the Prophet’s

judgment which contain the term Zina, its punishment and its inclusion in Hadd.

In one of them known as Ghamidiya case, a pregnant woman confessed

to Zina before the Prophet. At first, the Prophet tried to discourage her from

confessing. As she insisted, the Prophet asked her to wait until her child was

born and a wet nurse was found, after which the woman was stoned to death. In

this report, the term Zina has been used to refer to the act and the punishment,

which is stoning.142

In another report which is mentioned in Malik’s Muwaada, a man named

Mā`iz al-Aslamī confessed to Zina before the Prophet’s companions Abū Bakr

and `Umar b. al-Khataāb respectively, but they advised him to keep it a secret

and to repent in private. The man was not satisfied and went to the Prophet to

141

Azam, Hina, The treatment of sexual violence (‘rape’) in islamic law (fiqh),Middle East

Studies Association Conference, 1997. P 15. 142

Muslim B. Al-Hajjāj (D.261/876),Al-jāmi, k. Al-hudūd, 8.

59

confess to him. The Prophet tried to discourage him from confessing but failed,

and then investigated about his mental health. When he found out that he was

not mentally disturbed and was also married, he commanded that he be

stoned.143

Again, in this Hadith, the term Zina refers to the illegitimate sexual

act. This Hadith is clear about the reason why the man was stoned to death,

which was motivated by his marital status. In addition, this report indicates that,

insane committers of Zina should not be sentenced to death and should therefore

be cleared of any form of punishment.

In another report, which is well-known and referred to as the Juhaniya

case, again a pregnant woman came to the Prophet and confessed to Zina. The

Prophet asked her to wait until the child was born just like in the case described

above. When the child was born and a nurse found, the woman was sentenced to

stoning to death. Besides using the term Zina and the stoning punishment, this

report also refers to punishment as a Hadd.144

The fourth Hadith in this regard is a report based on a story known as

Asif, or servant.145

According to the story, two men came to the Prophet arguing.

The son of one of them had committed Zina to the other’s wife. In order to free

his son from being stoned, the father paid a large amount of money to the wife’s

husband. He knew that his son (for being single) was actually subjected to 100

lashes, but not to stoning and that the woman (for being married) was subjected

to stoning to death, a punishment the husband’s wife did not find to fit the crime.

The Prophet commanded that the money be returned to the father of the young

man. He sentenced the young man being flogged (100 strikes) and exiled while

the woman should be stoned after confessing.146

143

Malik B. Anas, Abū MusÀb [D.242/856], Ed. Bashshār Àwwād Ma`Ruf and Mahmūd

Muhmmad Khalīl K. Al-hudūd,Beirut: Mu’assasa al-Risāla, 1993, 1993. 144

Muslim B. Al-Hajjāj (D.261/876),Al-jāmi, k. Al-hudūd, 8, , 5:121 (K. al-hudūd) 145

Prophetic saying (marfū`) via `Ā’isha in Ibn Mājah; via Àlī to al-Hasan in Tirmidhī and al-

Nasā’i; via Yazīd b. Hārūn in Abū Dāwud and Bayhaqī; and via Àlī to Ibn Àbbās in Dāraqunī.

Other isnād variants can also be found, such as in a discontinuous (mursal) version via al-hasan

al-Badrī. 146

This report reveals the practice of an old legal punishment for illegitimate sexual intercourse

in Arabia in which a sexual usurper had to compensate the woman’s husband or father by paying

some amount of money, a decree which was then abolished by Islam. Muslim B. Al-Hajjāj

(D.261/876),Al-jāmi, k. Al-hudūd, 8 .


60

Another report is about zayd b. Khālid al-Juhanī (d.78/697) reporting

that the Prophet convicted a married person who had committed Zina to 100

strikes and a yearlong exile147

. In another Hadith, Abū Hurayra (d.57/681) it was

observed that the Prophet sentenced a married committer of Zina to the same

punishment and called it Hadd while referring to the penalty.148

He also reported

another case in which the Prophet commanded a slave woman who was used to

committing Zina to being flogged as a Hadd up to three times and to being sold

if she did not desist.149

In some other reports, the Prophet himself gave account of how he

determined the cases in which the committers of Zina could be executed; an

example is the case of a married man or woman referred to as “Thayyib” found

guilty of committing Zina.150

Other reports contain the same ideas from the

Prophet’s companions, who elaborated on the definition, punishment and

categories of Zina. For instance, Umar b. al-Khaatāb (d.23/644) once imposed

the punishment of Zina as a Hadd on a man and a free woman claiming to be his

slave woman.151

It is also reported from Ali b. Abī Talib (d.40/661) who

inflicted the same punishment.152

The classification of Zina under Hudud punishments and the penalty

specified for it was also confirmed by the Muslim scholars known as successors.

The latter emerged right after the Companions’ time (Prophet’s companions).

The successors like Muhammad b. Shihab al-Zuhri (d.124/742) emphasized on

the exile of the non-muhsan upon committing Zina.153

Another report in this line

of though, from Said b. al-Musayyab (d.94/712), shows that he believed that a

divorced woman who remarried during her waiting period (Iddah154

) should be

147

Bukhārī, (k. Al-hudūd),Dār Ibn Kathīr, at http://www.islamweb.net, accessed 6/12], 7 1993. 148

ibid. 149

Muslim B. Al-Hajjāj (D.261/876),Al-jāmi, k. Al-hudūd, 8, . 150

Bukhārī, (k. Al-hudūd),Dār Ibn Kathīr, at http://www.islamweb.net, accessed 6/12], 7

1993.Slightly different versions are also given in Muslim, 5:106 (K. al-Qasāma). 151

Shayba, Ibn Abī, Musannaf, ed. Abū muhammad usāma b. Ibrāhīm b. Muhammad, ,Cairo: al-

Fārūqal-hadītha li’l-Ṭabā`a wa’l-Nashr, 15 2007. 152

Ibid.29107. 153

Bukhārī, (k. Al-hudūd),Dār Ibn Kathīr, at http://www.islamweb.net, accessed 6/12], 7 1993.

6831-2. 154

A woman's prescribed waiting period after divorce or death of husband. This is mandatory

waiting period before a divorce created by Talaq ( divorce) becomes effective. It is 4 months and

61

punished by Hadd for her unlawful sexual relationship.155

Sufyan al- Thawri

(d.161/778) also said that a married woman who committed Zina with her

husband’s slave should be punished by Hadd penalty.156

To conclude, what we learn from considering all these reports on

consensual sexual relationship is that the unlawful consensual sexual

relationship between two people is called Zina, which is subjected to Hadd

punishment. The same term is also sometimes used to refer to the act of Zina

itself and its punishment. The punishments announced for this act varies

depending on the marital status of the committer. For instance, a married person

is stoned to death while a single person receives 100 strikes of flogging. More or

less the same punishments were discussed in Islamic jurisprudence without

significant changes up to later eras. During this period, the Muslim Jurists had

the above-mentioned approach towards Zina and its punishments.

In the following sections, the Ahadith concerning “non-consensual”

sexual relationships will be described which will contribute towards finding out

similarities and differences of terms used for the two kinds of extramarital

sexual relationships.

A report on rape which occurred during the time of the Prophet shows us

a woman who was on her way to the mosque. She was attacked by a man who

committed Zina with her and who ran away afterwards. The woman shouted and

asked for help. A group of people passing by heard her and ran after the man

and caught him. The woman recognized the man and confirmed him as her

rapist. The man was taken to the Prophet who condemned him to being stoned.

Later, another man showed up, who confessed that he was the real committer.

10 days. If there was no period of iddah and the woman married another man and discovered she

was pregnant then she would be unable to tell who the father of the child was. Iddah solves this

potential problem. The mandatory waiting period before a divorce created by Talaq becomes

effective. 155

Shayba, Ibn Abī, Musannaf, ed. Abū muhammad usāma b. Ibrāhīm b. Muhammad, ,Cairo: al-

Fārūqal-hadītha li’l-Ṭabā`a wa’l-Nashr, 15 2007.29130. 156

Abd Al-Razzaq, Musannaf,Johannesburg, Karachi and Gujarat: al-Majlis al-`Ilmi, 12 1983.


62

Then the Prophet ordered the first man to be released and the second one to be

stoned. No punishment was imposed on the woman.157

Other reports include stories on rape cases, which were reported to the

first and second caliphs. For instance, a man had party in his house, when he

realized that one of the male guests had forced his sister to have sex. Then, he

took the perpetrator to Abu Bakr158

who sentenced him to flogging and exile

while the victim was released.159

Likewise, in another report, a man confessed

before Abu Bakr that he had committed Zina with a slave woman by force. The

judge imposed the same sentence (as in the preceding case), but did not punish

the woman.160

Another similar case is a report on Zina committed during the time of

Umar b. al-Khaatab161

, where a man had Zina with a woman by force and also

injured her. The caliph imposed flogging on him and recommended that he

repair all the damages caused by all the injuries he inflicted to the woman.162

Similarly, a woman was brought to the second caliph by a group of

people who accused her of committing Zina, as appears in another report. The

woman denied having consented to sex and argued that she was assaulted by a

man when she was asleep. Following the lack of volition, the caliph

recommended that the woman be released.163

In a similar report, umar set free a

woman accused of having Zina since she claimed to have been assaulted at

157

Found in multiple variants; this version taken from Abu Dawud, Sulaymān B. Al-Ashath Al-

Sijistani, (D.275/889), ,Sunan, 3 Dar al-Kutub al-Ìlmiya, 1996. 158

d.13/634. 159

Ibn Abī Shayba, Àbd Allāh B. Muhammad Al-Kūfī (D.235/849), Ed. Muhammad Àbd Al-

Salām Shāhīn, Al-kitāb al-musannaf fi al-ahādīth wa alāthār,,Beirut: Dār al-Kutub al-

Ìlmiyyah, , 9, 1995 , ibid. 160

Bayhaqī, Al-sunan al-kubrā, ed. Muhammad àbd al-qādir ` Makka: Maktabat Dār al-Bāz, 161

d.23/644. 162

Ibn Abī Shayba, Àbd Allāh B. Muhammad Al-Kūfī (D.235/849), Ed. Muhammad Àbd Al-

Salām Shāhīn, Al-kitāb al-musannaf fi al-ahādīth wa alāthār,,Beirut: Dār al-Kutub al-

Ìlmiyyah, , 9, 1995. and Ibn Abī Shayba, 5:450, 27887 (K. al-Diyāt). 163

Found in multiple Isnād and Matn variants. See Àbd al-Razzāq, Musannaf 7:409 (B.al-bikr

wa’l-thayyib tustakrahān, 13666), from Aàmi edition; Ibn Abī Shayba, 5:507-8 (K al-

hudūd, ,28491-2), Shāhīn edition; Bayhaqī, al-Sunan al-Kubra 8:235-6 (B. man zanā bi-imra’a

mustakrahatan), Hyderabad edition.

63

night.164

This is also the case, when Umar averted the Hadd from a woman who

consented to sex under pressure. The latter was traveling alone and was thirsty;

she then consented to sex for a drink.165

In another famous incident, ‘Umar was

informed of a slave man in charge of war spoils coercing a slave woman. He

flogged the transgressor and exiled him, but he did not punish the woman.166

In later times, more reports on the way that Muslim rulers and scholars

treated the non-consensual sex relationships have been narrated. For instance,

the caliph Umar b. Abd al-Aziz167

is reported to have imposed Hadd and

monetary compensation upon a slave who forced a woman to Zina168

The same

ruling was reported from Hasan al-Badri169

for the same crime.170

In addition,

early Sunni scholars from different schools like Aba’ b. Abi Raba171

from

Mecca, al-hasan al-Badri from Basrah, Ibn Shihab al-Zuhra of Madina172

Ibrāhīm al-Nakhai of Kufa 173

opined that the Hadd of Zina was averted from

the coerced woman and that only the coercer was subjected to Hadd

punishment.174

Later on, the same view was expressed by Sunni jurists. They

164

Abd Al-Razzaq, Musannaf,Johannesburg, Karachi and Gujarat: al-Majlis al-Ìlmi, 12 1983.

and section on (B. al-bikr wa’l-thayyib tustakrahān, 13664), Aàmī edition; Ibn Abī Shayba,

Musannaf (K. al-hudūd, 28486), Shāhīn edition. 165

The fullest version of this report is found in Hanīfa, Abū, Jāmi` masānīd,2, Shorter versions

are provided by Àbd al-Razzāq, Musannaf, 11 vols, ed. habīb al-Rahmān al-

A`hamī(Johannesburg: Majlis Ìlmī, 1970-2) at 7:407 (B. al-Hadd fī’l-arūra), and by Bayhaqī,

al-Sunan al-Kubrā, 10vols (Hyderabad-Deccan, India: Dā’iratul Ma'ārif, 1925) 8:236 (Ch. on

coercive Zina/ man zanā bi imra’a mustakrahatan), both accessed at www.islamport.com. 166

Muwatta’ (riwāyat Yahyā b. Yahya al-Laythī [d.234/848), Ed. Bashshār, Àwwād Ma`rūf,

Beirut: Dār al-Gharb al-Islāmī, 1997, K. al-hudūd, on Hadd zinā, 1507 ,p 594.; this is also found

in other recensions of Malik, as well as in Àbd al-Razzāq’s Musannaf and Ibn Abī Shayba’s

Musannaf, in Bukhārī’s, and in Bayhaqī’s al-Sunan al-Kubrā. 167

d.101/720. 168

Ibn Abi Shayba, al-Musannaf fī’l-Ahādīth wa’l-Āthār, 7 vols., ed. Kamal Yusuf al-ūt (Riyadh:

Maktabat al- Rushd, 1409) 6:505 (B. fi’l-mustakraha, 57/4) at www.islamport.com, and 5:501

(K. al-hudūd, 28414), Shāhīn edition. 169

d.110/728. 170

Ibn Abi Shayba, Musannaf 6:506 (Bāb fi’l-mustakraha, 57/7) Yūsūf edition; and 5:501 (K. al-

hudūd, 28417), Shāhīn edition. 171

d.114/732. 172

d.124/742. 173

Bayhaqī, al-Sunan al-Kubrā,8:236 (B. man zanā bi’imra’a mustakrahatan), Hyderabad edition. 174

Abd al-Razzāq, Musannaf, 7:327-9 (K. al-Talaq, 13728) Azharī edition and at 7:408 ,13656)

Aàmīedition, Abd al-Razzāq, 7:409 (13660), Azharī edition, and 7:327-9 (13732), A`zami

edition, Abū’l-Mu’ayyad Muhammad b. Mahmūd al-Khwārizmī (593-665 ah). Jāmi` al-Masānīd:


64

believed that in a case of non-consensual Zina, the man who coerced the woman

should be punished while the coerced woman should be left free because she did

not intend to commit Zina.

To sum up reports on non-consensual Zina described in the above lines,

it is shown that the term Zina has been used to refer to a non-consensual sexual

relationship. The reports also indicate that rape is a crime under the Islamic law,

which suggests that the victim should not receive any punishment, but rather the

perpetuator (man) should be punished for being guilty of rape. In addition, with

accord to the above-mentioned reports, in case women claimed that they were

forced to rape, the judges averted Hadd punishment from them. This shows that

in the early Islamic law, in principle, the Zina rules were created to support and

protect women and victims, but over time, these rules have been used against

women who ended up being punished because of those rules.

Finally, the detailed analysis of the reports on both consensual and non-

consensual Zina, described above gave us an overall picture of the early Islamic

views towards Zina and rape. They also revealed the following points:

1- Reviewing the aforementioned material regarding the crime of Zina

expressed in Islamic texts, one can conclude that the early Islamic approach

towards Zina was in a way that one single title would include both acts of rape

(non-consensual Zina) and sexual relationship out of marriage (consensual Zina).

Under this perspective, rape is a variant of a more general crime of illegitimate

cohabitation which is referred to as Zina.

2- The fact that rape has been defined as a coercive kind of Zina can be

proven by quite a large number of Islamic legal reports referring to it as a Hudud

crime, a category in which Zina is also classified. Also, investigating all the

Islamic Ahadith and narrations in this regard would not lead us to finding any

references to this act as a crime with a different title than Zina or announcing a

different punishment. If in some reports other kinds of punishments are

mentioned such as fine for injury, defloratiory, or sexual misappropriation they

arose as consequences of imposing punishments on other crimes besides Zina

Majmū`a al-Aādīthwa’l-Āthār taumm 15 Masānīd al-Imam al-Afkham Abī hanīfa al-Nu`mān b.

Thābit al-Kūfī (80-150 ah). 2 vols.Lāilpūr/Samandarī: al-Maktaba al-Islamīya, 1976.

65

(however, as I will explain later, some new ideas regarding the category of rape

have been put forward).

3- According to early Islamic legal systems, only the perpetrators of coercive

Zina may receive punishments which include flogging, exile and stoning. There

is no punishment for women being coerced to sex.

4- Another noticeable point about these reports is that the women victims in

these reports are initially subjected to the Hadd punishment and when it is

proven that they have been forced to the act, the punishment is averted from

them. In fact, it is one of the negative aspects of the early Islamic view as

regards rape. It is not considered as an independent crime; rather the victims of

rape are regarded as potential perpetrators of Zina who have been spared due to

lack of volition.

5- Another side of the picture of classifying rape under Zina is that the

punishment of Zina was administered only if its occurrence was clearly proven,

which could only happen if two criteria were met, Firstly, the crime of Zina was

considered as having occurred only if the intercourse happened through

insertion of sexual organs and secondly, the intercourse should be out of

marriage or ownership. Thus, if in a sexual violence, the sexual organs were not

involved or if the act was not considered illegal and out of marriage, it was not

subject to punishment. As a consequence, penetration by hand for instance, as

could be noticed in some reports, was not classified under Zina or rape175

(the

problem related to evidence will be explained later). In addition, as Zina is

defined as an illegitimate, out of marriage sexual relationship, then the concept

175

For instance, it is reported that once a woman who was jealous of her husband’s slave girl

deflowered her by hand and accused her of Zina. Al-Hasan, a prominent early Muslim scholar,

decided that the wife be flogged but not for Zina but slander. Since defloration by hand is not

classified under the definition of criteria of Zina in Islam this act cannot be regarded as rape in

Islamic law system. Àbd al-Razzāq, Musannaf, 7:330-1, 13743 (K. al-talāq), Azhari edition,

where it is clarified that the Hadd here is for slander, not zinā: “Àbd al-Razzāq – al-Thawrī -

Manhūr – Ibrāhīm, and also Abū Àbd al- Karīm and Mughīra – Ibrāhīm: A man had a

slavewoman (jāriya). His wife feared that he would marry her, so she deflowered her (iftaat-ha)

with her finger, with [the help of] some other women holding her. Then the case was taken to

Àlī, who commanded al-hasan to judge between them. [The latter] said: “I opine that she should

be flogged the Hadd for her slander of the other (li-qadhfi-hā īyā-hā), and that she be fined the

dower amount for the deflowering.”


66

such as “marital rape” and its inclusion in rape is quite meaningless based on

Islamic discourse. From Islamic perspective, the sexual act including rape is

punishable only if it is done out of the bond of marriage.

2.4.4 Rape, different Islamic schools and contemporary thoughts

With accord to the Quran and Hadith already described in the previous

parts, every school of the Islamic law defines rape in a different way. This is a

clear indication that the way the schools read the text and other subsidiary

conditions differently affects their definitions of rape. In this section, it will be

shown the manner the Quranic verses that initially implied justice and honor for

women have been applied in a different way over time. To this end, different

views with respect to the definitions of rape by various early and modern

schools of law will be discussed. First, the viewpoints of the early Islamic

schools of law will be explained, which will be followed by the contemporary

thoughts. The latter could be expected as Sonbol remarks, ‘changes from

precedents set by the Prophet began during the early period of Islamic

expansion when laws were being formulated to handle new situations.176

For a

clear comparison of the Sunni and Shiite schools, the definitions will be

presented starting with the different Sunni schools which will be followed by the

Shiite. Similarities and differences between them will be highlighted.

2.4.4.1 Sunni perspective

The four Sunni schools have provided the following definitions of rape:

1- The Malikis who consider rape as a kind of Zina define it in the following

terms: sexual intercourse by a legally capable Muslim of a vagina to which he

had no right (mulk ) by usurpation and without consent. 177

176


Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. 177

Serrano, Delfina, Rape in maliki legal doctrine and practice (8th15th centuries ce),Hawwa,

5, 2007. Milik ibn Anas, al-Mudawwana al-kubrd, Vol. 4, p. 401; Muhammad ibn 'Abd

al-Rahman al-Maghribi al-Hattab (d. 953 AH/1546 CE).

67

2- The Hanafis define rape as sexual intercourse committed by a man in the

genitals in other than his property (mulk) without consent and no deliberate

action from the victim.178

3- The Shafeis define rape as forcing the male organ or part of it into

forbidden genitals of a male or female.179

4- The Hanbalis define rape as committing forbidden fornication by force.180

As can be seen from the above definitions, the Sunni jurists from

different law schools have used different wordings to define rape. But overall,

they all agreed that rape is a crime, which should be categorized under Zina and

it consists of Zina plus coercion or force. The Sunni jurists have also indicated

that any sexual intercourse between two people performed out of the bond of

marriage should be considered as Zina. It must be punished by the Hadd which

is 100 strikes of flogging for the single and stoning for the married181

. They also

agreed that this punishment is only applied on the condition that both parties

possess complete legal capacity –having reached the age of legal puberty and

being mentally normal- and total consent. As a result, anyone forced to the act

or anyone who does not possess legal capacity will be averted from the Hadd

punishment.

However, the schools show some differences amongst them as regards

where they attach more importance in their definitions. For instance, these

178

Muhammad Amin ibn 'Umar ibn 'Abidin (1252 AH/1836 CE), Hshiar radd al-mukhtar, Vol.

4 (Beirut: Dir al-Fikr, 1387 AH) 30, İlkkaracan, Pınar,Women and sexuality in muslim societies,

Women for Women's Human Rights (WWHR)/Kadının İnsan Hakları Projesi (KİHP), 2000 ,


Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. 179

Abu Ishaq, Al-Shirazi,Muhadhdhab fi fiqh al-imam al-shafi’i, Beirut: Dar al-Kutub al-

’Ilmiyya, 1995. Ibrahim ibn 'Ali ibn YusufAbu Ishak al-Shirizi, Persian Shafi'ite jurist (d. 977

AH/i 570 CE), al-Muhadhdhab~ffiqh al-Imdm al-Shdfi'i, Vol. 2, (Ed.) Zakariya 'Umayrat

(Beirut: Dir al-Fikr, 1995) p 242. 180

Al-Bahuti, Mansur ibn Yunus ibn Idris (d. 1051 AH/1642 CE), Kashshafal-qind', Vol. 6 (Ed.)

Hilal Musailahi (Beirut: Dar al-Fikr, 1412 AH) 97. Taymiyya, Ibn,Majmu'fatawa ibn taymiyya,

Majma ‘al-Malik Fahd, Riyadh, 1980. 182- 2, Spectorsky, Susan A, Ahmad ibn hanbal's

fiqh,Journal of the American Oriental Society, 102, 1982. 181

Noor, Azman Mohd, Rape: A problem of crime classification in islamic law,Arab Law

Quarterly, 24, 2010.p 431.


68

definitions indicate that the Shafi’is and Hanbalis focus more on forbidden

intercourse, while the Malikis and Hanafis emphasized sexual property rights

under the crime of Ightisab meaning “usurpation”.182

2.4.4.2 Shiite perspective

The Shiite, like the Sunnis, categorized rape under Zina. In Shiite, both

acts of Zina and rape are defined as sexual intercourse without being validly

married. The only difference between rape and Zina is the force element that

turns the rape definition to “coercive sexual intercourse”. According to the

Shiite definition of Zina, any sexual intercourse between a man and a woman

who are not married to each other is called Zina whether they are married or

single. Seen in this perspective, different types of Zina are identified. The first

type is adultery which is a sexual intercourse between a married man and a

married woman who are not married to each other. The second type is intimacy,

which is a sexual intercourse between two unmarried people. The third type is

incest, which is a kind of sexual relationship between individuals who are

closely related to each other like mother and sister. The fourth type is rape,

which is a coercive sexual intercourse in which one part has no consent. For the

different kinds of Zina, different forms of punishment have been suggested.

2.4.4.3 Similarities and differences between perspectives

The Shiite legal approach towards rape is similar in a way, but also

different in another way from the Sunni legal approach.

As far as similarities are concerned, both Shiite and Sunni schools of law

consider rape as a crime. Both schools also believe that rape should be classified

under the crime of Zina and that the male perpetrator of rape should be liable to

the Hadd punishment and should be subject to the penalty while the coerced

woman, who had no intention, should be relieved from it.183

Furthermore, in

182


early legal reports,The journal of law and religion forthcoming, SPRING 2013. These

definitions consequently have different impact on different rights of victims, which will be

discussed later. 183

Brown, Jonathan, Rape in islamic law, in the oxford encyclopedia of islam and law, New

York: Oxford University Press, Forthcoming However, the reason given by Shiite scholars for

69

both Shiite and Sunni schools, a concert and specific definition of rape does not

exist and the terminology used to define rape is similar to the one used for Zina.

Therefore, concerning the definition of rape, both of these perspectives did not

provide separate definitions and just added the Force (Ikrah) as a requirement to

the term of Zina. Categorizing rape under Zina as kind of Hudud crime,

consequently, influences the other procedural rights that will be explained later

on.

Notable differences between Sunni and Shiite schools of Islamic law

regarding rape exist. The main difference between the two schools has to do

with punishment. For the punishment to impose on the perpetrator of Zina,

Shiite jurists unanimously opine that an intensified version of Hadd punishment

for Zina, which is death penalty or execution (i.e. by hanging), should be

inflicted on the coercing party; irrespective of being married or single.

According to the Sunni legal system, however, the same Hadd punishment of

Zina with all its alternatives is administered to such a person. If s/he is single the

Hadd is flogging; if s/he is married, however, the Hadd becomes stoning to

death.

Referring to the legal reports related to punishment of rape, Shiite (as

same as Malikis and Hanafis) used the word Ghasb from Eghtesab or usurpation

when they asked Imams from the punishment for Rape.184

Therefore, Shiite in

this relief is different from the Sunni’s. Under the Shiite perspective, during the act of rape, the

woman victim has not actually done any act because she did not intend to while under the Sunni

perspective, the woman has performed the act (Zina), but is considered innocent. 184

There is also another difference between the Sunni and Shiite approach towards the

punishment of Zina. And that concerns the insane perpetrators of Zina. All Sunni legal schools

believe that one of the conditions of imposing punishment on the perpetrators of Zina is having

legal capacity including mental health. As a result, the Hadd punishment will be averted from

the insane regardless of gender. However, based on some Shiite jurists, there must be a

distinction between the insane man and woman. The insane woman should be set free while the

insane man is subject to the punishment. In Sunni jurisprudence, there is a similar discussion

about the probability of man being forced to do the act of Zina by a third party. It has been

debated that is it possible for a coerced or fearful man to be aroused to perform the act? There

are a few more minor issues we should point to here: Based on Islamic law, there is a difference

between rapes among Muslims and non-Muslims with the followers of other religions.

According to this ruling, if a male Muslim assaults a non-Muslim woman who is under the

protection of Islamic country (dhimma) the same punishment for the perpetrator is imposed. If a

non-Muslim man assaults against a Muslim woman, it is regarded as a violation of the covenant


70

this sense, is somehow like Malikis and Hanfais, but different from Hanbali and

Shafi. However, unlike the all Sunnis, the Shiite punishes any form of rape with

execution.

In concluding this part, it should be mentioned that, the way that early

legal reports dealt with rape consequently influenced on the vision of different

school of thought, therefore, using the same category with rape and Zina has

resulted in excluding some kinds of sexual violence from rape. In other words,

according to both Shiite and Sunni schools, two basic concepts are excluded

from being considered as rape.

First, based on the definition of Zina, any sort of sexual relationship

between couples who are legally married is legitimate even in cases when the

wives have to have non-Consensual sex and are thus forced to the act. Although

husbands have been recommended to satisfy their wives’ sexual desires, such

advice is not considered obligatory in Islam and its violation is not liable to any

punishments. However, it can be categorized as another crime but not rape.

Secondly, rape occurs only in cases where the sexual organs are involved,

therefore, use of other organs or objects or other methods is not considered as

rape, although it can be classified under other crimes. The mental, emotional and

physical damages of these other methods on the victims are sometimes even

more extensive -psychologically and physically- than the rape in its specific

Islamic meaning.

2.4.4.4 Conclusion

The descriptions provided in the above sections give an account of the

different definitions of rape and the related punishments. Based on them, it can

be concluded that since the late formative period of Islamic law, rape has been

classified under Zina as a coercive form of illegitimate sexual intercourse. Upon

looking at early legal reports, it can be confirmed that the term of Zina has been

used for both consensual and non-consensual sex, both of which are connected

of dhimmah (Peace convention) and the perpetrator is sentenced to execution. Same-sex

violation, sex between an adult male and a minor, sex between two adult males or two adult

females have received little or no attention in Islamic legal system.

71

to a specific category of crimes called Hudud. As already mentioned, these

kinds of punishments are “Scripturally defined, precisely determined, and

mainly corporal in nature. In addition, this kind of punishment is supposed to be

a punishment which violates the rights of God rather than the rights of human

beings.”185

This point is also shared by John Burton who opined that “Although,

based on legal reports, there seem to be different opinions among the jurists

over variety of punishments for different kinds of Zina, there is a consensus over

the placement of Zina under the hudud punishment.”186

Hina Azam also approved this point and stated that the designation of

Zina as a Hadd crime on the one hand and referring to the rape as another kind

of Hadd crime on the other hand make us conclude that rape has been regarded

as a kind of Zina in the early formative era.187

185

Emon, Anver M, Huquq allah and huquq al-'ibad: A legal heuristic for a natural rights

regime,Islamic Law and Society, 13, 2006 , Lange, Christian,Justice, punishment and the

medieval muslim imagination, Cambridge University Press, 2008 , Rahman, Fazlur, The concept

of hadd in islamic law,Islamic Studies, 4, 1965. 186

Burton, John, The origin of the islamic penalty of adultery,Transactions of the Glasgow

University Oriental Society, 26, 1978. 187

Hina Azam then adds, “This identification of Zina as a Hadd crime itself depended on the

evolution of the notion of Hadd as a legal category. Despite the fact that the idea of the ‘limits

set by God’ (hudūd Allāh) surfaces at several points in the Quran, and thought the act of Zinais

identified as a shameful deed (fāhisha) meriting this-worldly punishment, the act of Zinais

nowhere specified as an example of crossing the hudūd". She argues that " Indeed, it is a

misconception that the five to seven sins agreed upon by the classical Islamic legal tradition as

constituting Hadd crimes – theft (sariqa), fornication (zina), slander (qadhf), alcohol

consumption (sharb khamr), banditry (hiraba), and according to some, apostasy (ridda) and

homicide (Qisas) – are specified as such in the Quran. Rather, the classical notion of Hadd

crimes seems to have been the outcome of a juristic process that occurred in the formative period

of Islamic law. The argument for the formative-era emergence of ḥudūd as a legal category is

bolstered by examining the difference between the use of the term “hudūd” in the legal reports

on Zinaversus its use in the Quran. As opposed to the fairly precise definitions of Hadd crimes

that we see in later juristic formulations, the Quranic use of “hudūd” is quite general, simply

signifying divinely-prescribed limits, or moral boundaries, that one may not transgress. One who

crosses the divine boundaries is described as a wrongdoer: “And whosoever transgresses the

boundaries of God (hudud), such are wrongdoers (ẓalimun).” (Q 2:229) Also, those who

transgress the hudūd of God are warned of entering hellfire: “One who disobeys God and His

messenger, and transgresses His boundaries, will [enter] into everlasting fire …” (Q 4:14)

Although readers are sternly warned not to cross the hudud Allāh for fear of otherworldly

punishment, no worldly chastisment is specified for crossing them. Beyond the above general

warnings not to cross the Hudūd of God, the word also occurs in references to a gamut of issues


72

However, because of the problems caused by traditional readings of

Islamic text (i.e. excluding some kind of sexual violence from rape), in modern

times, there are different readings of the early texts and reports regarding the

categorization and definition of rape. Some of these readings are closer to the

definition offered by western approaches. For instance, in Malaki jurisprudence,

the term Istikrah is used to describe the nature of rape which means coercion

and is very close to the western concept of rape.188

Classifying rape under

Ightisab meaning usurpation as it has been done by Shiite jurists makes it a

different concept. Sometimes, Muslim jurists have classified rape under the

crimes of property seizers. Based on the definition offered by some jurists for

these crimes, any type of forceful assault upon the people involving some sort of

taking of property is called highway robbery.189

Some of the Maliki jurists like

Ibn ‘Arabi, al-Dasuqi and Ibn Hazm have regarded rape as one of these crimes

because in rape the victim’s property is also taken by force.190

Contemporary

Muslims scholars also propose another classification for rape that will be

discussed later on.

2.5 Islamic criminal procedure

Procedural aspects have not been established completely and precisely in

sources of law making in Islam and it is up to Islamic states to provide proper

criminal procedures. However, procedural rules should not conflict with Quranic

-conjugal relations during Ramadan, divorce procedures, and the like -- that have no clear

underlying thematic connection. The singular, Hadd, is not found at all. One searches in vain for

a passage linking the act of Zina with the hudūd Allāh, and conversely, the acts in context of

which the term hudūd appears do not end up in the classical list of Hadd crimes. The only verse

that comes close to naming the five acts later agreed upon as being Hadd crimes is Q 60:12, in

which theft (sariqa), sexual transgression (zinā) and false accusation (buhtān) are condemned,

but in which the term ḥadd is not used. Even here, the two crimes of consuming alcohol (sharb

al-khamr) and brigandry (hirāba) are omitted, and the term used for false accusation, “buhtān,”

differs from that which came to be conventionally utilized within legal discourse (“qadhf”)."33 188


Studies Association Conference, 1997. 189

Quraishi, Asifa, Her honor: An islamic critique of the rape laws of pakistan from a woman-

sensitive perspective,Women of Faith: Muslim Women Scholar-Activitists in North America

(2000), Syracuse University Press, 1997. P 200. 190

ibid. p 201.

73

principles that ensure justice, dignity, equality etc.191

According to general

principles of the Islamic law, Islamic procedural law seeks to ensure two main

goals namely due judicial process and effective control of crime. It also protects

the rights of the accused and victims as well as those of the society as a

whole.192

Islamic procedural law also recognizes fundamental principles such as

the fundamental premise of being innocent until proven guilty.193

It also

guarantees several other rights that are observed as necessary for a just legal

system, including: exclusion of illegally obtained evidence; the right to confront

an accuser; the right to inspect evidence against the defendant; the right to cross-

examine witnesses, prohibition of torture etc.194

However, with regard to some

crimes such as Zina it is possible to find some particular procedural (evidential)

rules or rules related to compensation. It is worth noting that the Islamic

procedural rules are also subject to human interpretation.

The important point is that having a different approach towards rape can

influence the situation of victims in procedural stages as well. The right to

providing evidence and the right to compensation are those related to rape that

have been influenced by different interpretations and are more controversial

among schools. The following part will show us how different legal views of

jurists of various schools can affect the right to compensation and providing

evidence.

2.5.1 Assessment of capabilities and inadequacies of evidence in rape

2.5.1.1 Introduction

When the legal controversy reaches the court, both parties (including

victims or the accused) seek to provide some evidence in order to uphold his or

her own rights. Evidence could be defined in criminal affairs as any legal data

and information, which proves the existence or non-existence of a fact and/or

191

Awad, Awad M, The rights of the accused under islamic criminal procedure,Islamic criminal

justice system, 1982. 192

Kamali, Mohammad Hashim,Shariah law: An introduction, Oneworld Pubns Ltd, 2008.p 179. 193

ibid.P 181. 194

Lippman, Matthew, Islamic criminal law and procedure: Religious fundamentalism v.

Modern law,BC Int'l & Comp. L. Rev., 12, 1989. p 48.


74

credibility of a claim. In every case, the judge considers the evidence gathered

before pronouncing the sentence. He can look for other evidence when deemed

necessary.195

There is a law that governs these forms of evidence and covers

different types of evidence, such as testimony, exhibit, or other documentary

materials. Today, forms of evidence to prove crimes are different from the past.

Evidence can include a huge variety of elements from testimony to scientific

evidence that help both parties to defend their rights. Giving evidence in rape

cases is much more difficult than in other cases. Because of the nature of this

crime, providing evidence in court can even be a particularly traumatic

experience for the victims.196

Some victims may find it difficult to give evidence

of witness in front of the defendant fearing for their own safety, a desire of

revenge from the accused, violation of their privacy etc.

With regard to Islamic law, a special way of legal evidence is used to

prove some crimes (mainly Hudud) such as Zina. This system has a traditional-

jurisprudential basis and is not easy to violate and change.197

In other words, in

Islamic law, providing the special form of evidence to prove crimes is not a

requirement except for specific cases in which the Islamic law has explicitly

announced the necessity to offer another form of evidence. They are mainly in

the category of Hudud crime i.e. Zina.198

Regardless of different methods and

different possible ways that can be offered to victims to give evidence to courts,

the situation of rape victims who live in Islamic states is more difficult since

Islamic law has not determined specific types of evidence different from those

195

Ashouri, Mohammad,Code of criminal procedure, 1, Samt publication, 2002.p 59. 196

Kelly, Liz and Britain, Great,Routes to (in) justice: A research review on the reporting,

investigation and prosecution of rape cases, Her Majesty's Crown Prosecution Service

Inspectorate, 2001. CPS Policy for Prosecuting Cases of Rape available at

http://www.cps.gov.uk/publications/prosecution/rape.html#_07, Harris, Jessica, Grace, Sharon

and Britain, Great,A question of evidence?: Investigating and prosecuting rape in the 1990s,

Home Office London, 1999. 197

However, if the knowledge of judge and his conscientious satisfaction is accepted as another

evidence for proving crime, in addition to the system of legal evidence, intellectual and scientific

evidence would also be reliable. In addition, there is no emphasis on legality of evidence to

prove other kinds of sexual crimes, which require Tazir punishment, which can also be

documented on the basis of existing scientific-intellectual evidence. 198

Mohammad, Akhundi, Proving sexual crimes in another review,The magazine of the book of

women, 22, Winter 2004 .This evidentiary system in Zina etc. is helpful because innocent people

accused of those crimes could be exculpated in the court and their deeds could never be

disclosed.

75

applicable for Zina. Thus, evidence of rape is linked to evidence of Zina, which

is very difficult for victims to provide.

As legalizing appropriate and efficient evidence can have an influential

role in guaranteeing the rights of victims, the existing evidence used for proving

rape will be critically reviewed in relation to the schools, with an evaluation of

its capabilities and strengths in the protection of victims. This will be followed

by an evaluation of whether or not they are useful and helpful for these victims

and whether the influences come from the Islamic law itself or not,199

which will

be presented in the next sections. The method used in this section to show our

critical attitude towards the issue, which lend our support to the victims' rights,

is to criticize the jurisprudential arguments as the origin and basis of this issue.

2.5.1.2 Islamic evidentiary system of rape

As it has been mentioned earlier, based on traditional Islamic

jurisprudence, rape is seen as a subdivision of fornication (Zina) in which the

element of force and coercion is added. Consequently, all the issues of rape such

as definition, punishment, proving through evidence are discussed under the

category of Zina. With regard to Zina, all Islamic legal schools believe that Zina

199

Brown, J, Horvath, M, Kelly, L and Westmarland, N, Connections and disconnections:

Assessing evidence, knowledge and practice in responses to rape,2010. Policy for Prosecuting

Cases of Rape CPS, March 2009, Helping victims and witnesses to give evidence is also very

important discussion in this regard: there are different ways for victims of rape to give evidence

before the court. For example, in the case that victims are afraid of their safety or privacy etc, it

would be possible for the courts to admit evidence through particular measures such as recording

the statements of the victims and playing them in the court. This means that the victim or

witness will not have to give ‘live’ evidence about what happened to them, but they will still

have to answer questions presented by the defendant’s lawyer in cross-examination. It is also

possible to give evidence from behind a screen in a courtroom to prevent the victims (or other

witness) and the defendant from seeing each other; and it is possible to give evidence through a

live television link to prevent victims from going to the courts. It seems that it is up to the court

to decide whether to grant or refuse applications for these special measures in these cases. These

measures can be taken in both early and even last stages of the investigation. The use of an

intermediary is a kind of particular measure that is available for vulnerable victims. This

measure will enable victims to communicate with courts. The intermediaries have to be

approved by the courts and the work with victims and witness to make sure that they understand

correctly the questions presented in the court. They can also assist victims to provide evidence,

so that the victims will be able to give their best evidence to the courts. Taking this measure is

also crucial for the deaf victims or the victims who have language problems.


76

is established through either confession of one or both parties or through the

concurrent eyewitness testimony by four sane adult males. Of course, there are

very strict rules for establishing and proving the occurrence of Zina in the court,

which in my view can be a response to the severity of the punishment. This

notion has always led Muslim judges to trying to avert the Hadd punishment in

case of hesitation or ambiguity as slight as it may look.

To establish rape as a kind of Zina in which Hadd punishment (as

violation of the right of God) is imposed, most legal schools would suggest the

same procedure as for consensual Zina that refers to the confession of the

perpetrator or the testimony of four sane, adult and male witnesses with all the

strict conditions. Any ambiguity would lead to averting the Hadd. As it will be

mentioned in following sections, some schools accept knowledge of judges200

or

circumstantial evidence as well.

There are two important points here that the following sections will

explain in detail. These points should be taken altogether to clarify the problem.

1- The procedure for proving rape and consequently helping the victim

to receive monetary compensation does not seem to be efficient. Firstly, finding

witnesses who have seen the act of rape and who would accept to come to the

court for testimony is difficult. Secondly, based on Islamic ruling, the testimony

of fewer than four people for proving the act of Zina (including rape) would

expose the witnesses to receiving the punishment of slander which is

discouraging for the witnesses.201

I will further elaborate this later on.

2- Different schools of law disagree in terms of what evidence should be

provided and which procedure(s) to be followed, i.e. some schools accepts

knowledge of judges or circumstantial evidence as well. The disagreement

amongst Islamic schools is rooted in the differences observed in the Islamic

schools’ interpretations of the nature of the right violated in case rape occurs.

200

Knowledge of judges means Conviction of judges that can be provided by any form of

evidence including circumstantial evidence and convinces judges whether or not that specific

crime accrued. 201


York: Oxford University Press, Forthcoming p5.

77

Because of different interpretation, some schools offer to accept circumstantial

evidence or knowledge of judges beside traditional evidence. Although these

possibilities in the Islamic system seem very promising for victims, they do not

apply these powers properly in criminal procedures. Because the judges who

consider rape as Zina prefer to only consider traditional evidence such as

testimony and confession that unfortunately, result in several problems for the

victims. This point will be illustrated more in the following section.

2.5.1.3 Efficiency of evidence at procedural stages

There are some difficulties in the traditional evidentiary standards if rape

is related to Zina. The most notable aspect of pertaining evidentiary standards to

Zina and stressing on traditional evidence is the impossibility of the fulfillment

of these types of evidence as will be explained below.

Confession

The first point about confession is that confession is reliable and

admissible only if the confessing person has four characteristics: adulthood,

wisdom, intention and authority. Consequently, confession of children or insane

people is not acceptable. People should confess with their absolute authority and

without any reluctance or threat and should confess seriously and truly. The

judge should not assist him or her with confessing nor should he put him or her

under pressure. In other words, in principle, any confession which is made by

force or torture is not reliable in Islam and does not lead to any punishment.

Concerning confession, especially confession to committing Zina, the judge is

advised to discourage the defendant from doing so, or to set out certain

conditions that will prevent him or her from doing so. In other words, in Islamic

law, especially for Zina, the judge should make proving the crime as difficult as

he can.202

For example, if the judge realizes that the accused cannot speak easily,

he should not assist him or her in uttering words, but he should rather make him

or her renounce the charge intangibly. If the defendant insists and looks

determined to confess explicitly, the judge should find a reason to send him or

her home so that he or she regrets his or her confession.

202

In fact, this point is custom that has very strong jurisprudential basis in Islamic law. There are

many rules and reports regarding this issue in Fiqh and sources of law- making in Islamic law.


78

The required number of confessions for Zina is four (4) times before the

judges. The accused has to confess and state four times that he commit that

crime. The confessions should be done in four different sessions and should be

done before judge. If someone confesses fewer than that, sometimes, he or she

(the ones who confess) will be sentenced to Tazir punishment (for slander to

another part). Another important issue is acceptance of denial, after confession,

in crimes such as adultery, rape or incest cases, the sentence of which is stoning

or death penalty. In other words, if the accused confess four times, he can deny

all of them and the court will accept this denial. Therefore, Hudud punishment

will not be executed in the case of refusal after confession. This is another

special device suggested by Islam in order to keep Zina uncovered, which is the

basic policy of the Islamic law.

Another major issue is that although Islam has not made the confession

to sexual crimes illegal, by counting the denial of such crimes -as acceptable-

and regarding the confession- as undesirable- confirms the Islamic criminal

policy regarding covering (and not proving) these kinds of crimes, that will be

elaborated more in the next section.203

Upon analyzing this kind of evidence, it can be said that confession in

the past was regarded as the most important evidence for proving a crime. In

sexual crimes, however, it is so difficult to prove any of these crimes with

confession considering all the requirements imposed in Islamic jurisprudence for

it. The main reason is that rape offenders (accused) are not easily willing to

confess to the crime four times in the court. Someone who has committed rape

and has neglected social, moral, religious and conscientious laws is not expected

to confess to his or her crime four times in four separate sessions without any

torture or under normal conditions.204

On the one hand, the victim is faced with

the issue of repeated confessions. Accused has to confess four times. While one

203

Nubahar, Rahim, The purposes of punishments in crimes required had,The quarterly journal

of Mufid, 2001. 204

In religious societies, especially in the early age of Islam, in which people accept Hudud

punishment in order to get rid of otherworldly punishment, confession has certain significance

and is possible. In this context, the purpose of someone who confesses is welcoming punishment

and then be totally or partly released from otherworldly punishment. However, this cannot be

accepted nowadays, as the intensity of this punishment prevents a (none) believer from

confessing.

79

confession cannot prove crime, those who rape can refuse to repeat confession

in order to be released from heavy punishment. On the other hand, even in cases

where those who rape have sufficiently repeated confession, they can reject all

of their confessions and then be released from capital punishment. Based on

what precedes, it is unlikely that a confession actually occurs or assists in

proving a crime.

Testimony

Testimony in Islamic law has some requirements that make it inefficient

in rape cases. For example, one of the most important conditions for witnesses is

that they have to be just and pious people. The most important point is that

observing the crime and then being able to testify means committing two

religious sins in Islam, that is, inspection and looking at the body of a stranger.

First of all, those who commit rape try to choose hidden places because of

shame or the fear of being disgraced if their crime is discovered and are not

often identifiable except by inspection or violation of privacy. Secondly, the

requirement of exact observation of the intercourse for the testimony of this

crime does not make the task easy. Seeing the action requires indeed looking at

the body of a stranger which is a taboo in Islam and thus leads to committing a

sin and a taboo act. Considering that, Islamic laws suggest that one of the

requirements of witnesses is their justice (they have to be pure and away from

sins), which means that when any of the above acts is done, it can lead to

violation of the justice of observers (witnesses) and his or her testimony is

eventually null.205

In addition, the number of witnesses in Zina cases should be four males.

The major point is that the access to the testimony of witnesses is also not easily

possible in rape cases; because with the presence of four just witnesses, a

question worth raising is how could rape ever happen in the first place. In

addition, the witnesses have to observe not only the sexual relationship, but also

exactly the intercourse (in rape, Zina, or adultery etc). Besides the requirement

of watching the intercourse exactly, there are some other conditions. For

205

Mahmoud, Ahmadlu,Criminal legal and judiciary policy of iran concerned with crimes based

on illegal sexual relationship, Imam Sadegh university, 1998. p 156.


80

example, even in cases the witnesses testify that they have seen sexual

intercourse between a man and a woman; if they do not know whether their

relationship is legal or not, such testimony will not be enough for proving

Zina.206

Therefore, considering that this crime usually occurs in hidden places

and the conditions of exact observation of the intercourse by witnesses is

problematic, the efficiency and validity of testimony is practically rejected in

rape cases. Other requirements are that the testimony of the witnesses should be

clear, without any ambiguity. Witnesses should testify one after another without

any time interval. If some witnesses testify and other witnesses do not appear

immediately to testify or refuse to testify, the crime (rape or Zina) will not be

proven and in this case, the witness will be punished because of unjust

accusation. If three witnesses appear to testify rather than four, three witnesses

will be punished for unjust accusation as well. Consequently, fear of being

exposed to the punishment of unjust accusation also shows practical non-

efficiency of testimony to prove rape. Witnesses should also agree whether the

female had willed or resisted the sexual act. In sum, based on the discussed

requirements for confession and testimony, it is obvious that rape cannot be

proven in such judicial systems.

Knowledge of judges and circumstantial evidence

The difference amongst Islamic schools regarding the evidence for rape

is mostly related to validating “knowledge of judges” and “circumstantial

evidence”, which will be explained in the next section. This section however,

clarifies practical problems in the criminal procedure that prevent to apply these

forms of evidence in practice.

Legality or illegality of knowledge of judges refers to finding and

discovering the occurrence of crimes such as rape or theft. It is the responsibility

of the judge to ensure that these crimes have really been committed. It can be

acquired through different methods and it can include different form of

206

Al Musavi Al Khomeini, Ruh Allah,Tahrir alvasileh,,p2-408 Ismailieh,Bita, 2006. p45.

81

evidences for instance circumstantial evidence, indications in the dossier or

expert opinion and so on.207

However, with regard to knowledge of judges, in the case of rape, many

judges practically refuse the acquisition of this knowledge because of some

reasons such as misunderstanding of the principle of abolishment of the legal

punishment (Huddud) in case of uncertainty (Dara principle208

) or severity of

rape punishment etc. The point is that the reason why some jurists disagree with

exercising knowledge of judge in Hudud such as Zina, is relying on some of the

reasons such as the Islamic legal policy of covering crime or “Dara” principle.

The issue of severity of rape punishment causes many judges to be reluctant to

issue this sentence. Before shedding light on this misunderstanding, it is

necessary to explain more the policy of covering crime in Islam and the

conditions under which it can be done.

Covering crime is regarded as one of the instruments of reducing sexual

crimes in Islamic procedural law. It can be defined as a collection of regulations

which reduce the possibility of discovering and proving sexual crimes such as

Zina as they include rights of God. Covering crime is exercised at both stages of

discovering and proving it. Considering the definitions of different types of

rights in Islamic law and the consequences of this separation209

, I already

explained that Zina is included in the crimes related to the violation of the rights

of God.210

The spirit dominating Islamic rules for Zina and the required

evidence, such as testimony of four just male witnesses or four times confession,

to prove it, which do not practically occur in most cases, show that the criminal

policy of Islam is based on covering sexual crime unless they are committed

publically in the society.211

207

Dayyani, Abdualrasul Certitude of the conscience of judge brief comparison of legal system

of islam, iran and france,The monthly journal of procedure, No 51, 2005.,p 25. 208

This principle means that if there is even very little uncertainty to prove Zina judges have to

avoid to issue Hadd punishment. 209

Regarding the possibilities of reduction and amnesty in the crimes that violate right of God. 210

Najafi, Mohammadhasan,Javaher alkalam fi sharh shara alislam 41, Dar alkutub

alIslamieh,Bita, 1984.p154. 211

For instance, when it commits the street at day with many people.


82

Furthermore, regulations resulting from the Dara principle also constitute

an obstacle to proving Zina, which is another fundamental base for covering this

crime. This principle suggests non-execution of Hudud in doubtful cases.

Therefore, in some cases where the defendant confesses fewer than four times or

there are fewer than four witnesses, the Hadd punishment is abolished and Tazir

is sometimes executed instead. Clearly, these reasons cause the judges not to use

the evidence of knowledge of judge in these crimes because of the principle of

covering such crimes in investigating the sexual crimes as crimes that violate the

right of God. In accordance with the Prophetic directive imposing the Hadd

punishment for such crimes, prosecuting those crimes should be avoided as

much as possible. Based on this, it can be concluded that establishing and

proving Hadd crimes cannot be done through circumstantial evidence or

knowledge of judges.

It also represents the fact that even if we accept these two forms of

evidence that definitely simplify the proof of rape, there are some problems in

the criminal procedure to apply them properly. It is mainly because the

traditional schools of law did not think of alternative standards for treatment the

case of rape (coercive Zina). This is the reason why, in addition to the principle

of covering such crimes, the traditional interpretation of rape as a form of Zina

prevents traditional and classic schools of law (mainly Hanafi) from developing

more pragmatic evidentiary and procedural doctrines. Jurists ignored the

problem that the strictness of the procedure for proving the crime of consensual

Zina which can easily end up to averting the Hadd punishment in case of

ambiguity would make establishing rape as a coercive form of Zina difficult,

which is likely to result in relieving the perpetrators of rape. If the system of

evidence requires a victim to offer evidence which not only is practically

impossible but also in case of failing to present it, he/she is accused of

committing crime, many victims prefer not to report because they themselves

are being victimized in criminal justice systems. In fact, since the evidence

required for rape is similar to that of Zina and is not differentiated from it, it

becomes hard to prove. Therefore, it can be said that if these crimes are limited

to these types of evidence, they cannot be proven in practice.

83

2.5.1.4 Different Islamic schools and the evidentiary system of rape

As it has been mentioned before, all problems come from this idea that

rape falls under Zina and Zina as Hadd crime violates the right of God. However,

if Islamic schools interpret the text in another way and consider the dual nature

of rape, they will be able to find a solution and thus offer more protection to the

victims. Because of the difficulties in providing evidence, some Islamic schools

interpret the Islamic text in another way and provide another system to protect

women. For example, an alternative look at rape as a dual crime is common in

the Maliki and Shiite Schools of law. These new perspectives resulted in

protecting victims more than in other schools.212

Under the “Maliki” perspective, two crimes of Zina, one of them Zina

itself and another one referred to as usurpation of sexual organs are identified as

rape. This implies that the court imposes two punishments and considers two

different procedures followed in order to prove both aspects of the crime. The

Malikis suggest that, in order to prove the occurrence of rape as an act causing

physical and emotional breakdowns on the victim, the claimant should provide

two male witnesses or one male and two female witnesses. The crime should be

treated as a civil claim (because of usurpation of sexual organs), and monetary

compensation in the form of dowry against the invader should be imposed. If the

claimant fails to provide the necessary evidence, it would result in dropping the

charges. However, in Maliki jurisprudence, another significant Fatwa that

involves imposing Tazir punishment is noticeable when the Hadd punishment is

not established due to lack of evidence, but the judge is convinced that the

sexual violation has most likely occurred.

“Hanafi” School of law would consider rape as a unitary crime which

should be discussed under the category of Zina. Accordingly, the same method

for proving Zina is adopted besides proving the element of coercion on the

female party to drop charges against her. If the occurrence of rape, which is the

same as Zina is not proven which is most probable, the Hadd punishment is

212

However, the practice of Islamic states is something else that sometimes prevents judges to

apply these capacities.


84

averted from the male invader and he will be set free without receiving any

punishment even in form of Tazir or monetary compensation.

With regard to the evidentiary system in “Shiite school”, it should be

mentioned that there is no particular and specific system of evidence for rape,

which is seemingly considered as Zina. However, some differences in Shiite

schools make a significant change for victims at the procedural stages. The first

difference and the most significant one relates to who has the burden of proof

before the court. Under the Shiite perspective, if the victim claims that she has

been raped, the judges have to accept it and the other part should prove

otherwise. Thus, the burden of proof is not on the victims, but on the accused

who should prove that it was a consensual relation. It seems that all Shiite jurists

have agreed on that based on the Hadith narrated from Imams.213

Another notable difference is based on the Ahadith and consensus of

Shiite jurists (Ijma); if four people testify that both sides committed Zina and

two of them testify that the woman was not willing to, the woman will be

relieved from the Hadd punishment. Clearly, proving rape is simplified for the

woman, who is required to provide just two witnesses instead of four in order to

reject a man’s claim. In other words, while the male perpetrator has to provide

four witnesses who testify consensual sexual relationship, the woman only needs

two witnesses to reject his claim. Then the occurrence of the very act is still

proved, but under the title of rape and not Zina. Regarding this issue some Shiite

jurists believe that if four people testify that both sides committed consensual

Zina and two of them testify that the woman was forced to, the woman will be

immediately relieved from the Hadd punishment and she even does not need to

provide any evidence to reject his claim and she should not be punished because

of Dara principle.214

213

Mohagheghe Ardebili,Majma al faedeh, 13, shiaonlinelibrary, 1996. Al Hore Al A'meli, Ed

Shiekh Mohammd Alrazi, Al- vasael al shia, 18, shiaonlinelibrary, , Al Sheikh Alkoleini,Al kafi,

7, shiaonlinelibrary, 1988 , Brojerdi, Al Saed Al, Jame aHadith, 25, shiaonlinelibrary, 1995 ,

Heli, Ibn Edris,Al saraer, 3, shiaonlinelibrary, 1990 , Sadugh, Al Sheikh Al,Almoghana, 1,

shiaonlinelibrary, 1995.p 291. 214

Behbodi, Al Shekhi Al Tousi. Ed Mohamad Bagher, Al khelaf,5, 1999 , Behbodi, Al Shekhi

Al Tousi. Ed Mohamad Bagher, Mabsout, 3, shiaonlinelibrary, Ketab Haad, P 8, Al Mohaghegh

Al Heli, Abol Ghasem Najm Al Din, Sharie alislam fi masaele halal and haram, 4,

85

Another difference is related to validating the knowledge of judges,

which is sort of validating circumstantial evidence. This is controversial

amongst Muslim jurists (both Shiite and Sunni ones). In the following section,

different ideas of jurists on this topic will be discussed.

Different views concerning the validity of knowledge of judge

The majority of Shiite jurists and some Sunni jurists agree that judges

can apply their knowledge, using circumstantial evidence, in all claims

including civil and criminal cases. Therefore, different attitudes regarding the

validity of judge's knowledge in proving claims have been offered. The most

important attitudes are outlined below:

1-Most Shiite jurists and some Sunni jurists have absolutely accepted the

validity of the knowledge of judge. The first written work among Shiite jurists

in this regard was produced by Sayyed Morteza. He proved validity of

knowledge of judge as presented in his book which is entitled Al Entesar.215

2-Many Sunni jurists and some Shiite have absolutely regarded the

knowledge of judge invalid, an idea which is ascribed to Ibn Junaid.216

3-Some jurists have exclusively regarded the knowledge of judge

authoritative for the cases where rights of people are concerned, but not for the

cases of Hudud. The first person to have advanced this theory among Shiite

jurists is Ibn Hamzeh.217

shiaonlinelibrary, 1839.935, Heli, Ibn Edris,Al saraer, 3, shiaonlinelibrary,

1990.432,Mohagheghe Ardebili,Majma al faedeh, 13, shiaonlinelibrary, 1996.32, Alhendi, Al

Fazele,Kashf al letham,, 10, shiaonlinelibrary, 2004. p423. 215

Alame Alhuda, Sayyed Morteza,Alentesar,(436a.H.) with the introduction of sayyed

mohammad alkhorasan, Beirut,Dar alzava, 1985 , Najafi, Mohammadhasan,Javaher alkalam fi

sharh shara alislam 41, Dar alkutub alIslamieh,Bita, 1984.,p40-88, Al Musavi Al Khomeini,

Ruh Allah,Tahrir alvasileh,,p2-408 Ismailieh,Bita, 2006 , ibid.,p2-408 216

Najafi, Mohammadhasan,Javaher alkalam fi sharh shara alislam 41, Dar alkutub

alIslamieh,Bita, 1984., p88-91. 217

Ibn Hamzeh (560a.H.), Ali,Alvasileh, Maktab Almarashi,Khayam publication, 1988.p218 .


86

4- Some accept the validity of knowledge of judge just for the rights of

God, but not for the rights of people.218

Each jurist gives different reasons for its arguments based mainly on the

Quran and Ahadith. Some reasons are also based on intellectual arguments;

explaining all of them is outside the scope of this research. However, in short,

all of these evaluations and criticisms come to the conclusion that the

knowledge of judges is valid in the determination of the violation of the rights of

people (such as theft and rape which has dual features) but not with regard to a

violation of the rights of God (such as Zina as one of the sexual crimes). So

again, these arguments are rooted in the jurists’ conceptualization of the term

rape that is different.

The jurists who argue against the knowledge of judges emphasize the

importance of the principle that says ‘Hududs (as crimes that violate right of

God) are to be treated with leniency and negligence’. They say that it is inferred

from the Islamic law and jurisprudential viewpoints that the Hudud sentences

are all based on negligence, leniency, and prohibition of inspection and

acquisition of knowledge.219

The main aim for legalizing very strict evidence is

to make proving that crime difficult and even impossible. Therefore, if they

consider rape as Zina (and Zina is part of Hudud) it means that judges will not

apply their own knowledge or any other evidence to prove it, because they

simply misunderstand that rape only violates the right of God and should be

treated with leniency. In this case, judges are not willing to prove anything or

use any kind of evidence and will pronounce acquittal sentence.

On the other hand, another group of jurists believes that rape has dual

nature. Because it not only violated right of god, but also Right of individual and

since it contains private complaints, the judges are obliged to do their best to

discover the truth. Some contemporary jurists such as Almeh Heli and Mosavi

Khomeni believed in the validity of knowledge of judges with regard to this

218

Al Ansari, Sheikh Morteza,Alghaza va alshahadat, Sheikh Ansari Congress, Qom:Bagheri,

1994.,p59, Jabei Ameli(Second Martyr), Zein Aldin Masalek alafham fi sharh shara alislam, 2,

Basirati, 1979.,p348. 219

Jabei Ameli(Second Martyr), Zein Aldin Masalek alafham fi sharh shara alislam, 2, Basirati,

1979.,p11.

87

crime.220

For example, Mosavi Khomeni mentioned other reasons and used

other approaches to validate the knowledge. According to him, legality of acting

based on traditional evidence and passing on sentences on this basis does not

mean they substitute the knowledge. It is because it is the common way all wise

people follow, which the holy legislator has also confirmed. In Islamic

jurisprudence, it is called Banā Uqalā which means that when all wise people of

a time do something and there is no objection from the Prophets or Imams, that

action is legal; otherwise the prophet would prevent people from performing it.

The wise people trust the probable and uncertain evidence or circumstantial

evidence because it is for the benefit of the society.221

2.5.1.5 New approach to evidentiary system

Rape is considered under the category of Zina, which raises the question of

whether it should indeed be a crime violating the right of God and should thus

be included in the policy of keeping the crime unrevealed. As was clarified

earlier (in the section on “Different views concerning the validity of knowledge

of judge”), these differences amongst schools lie in the perception of rape as a

violation of the right of God or right of individuals. Some jurists totally exclude

adultery and rape from crimes related to the right of people and regard it as a

mere crime related to right of God.222

Other jurists, however, differentiate

between sexual crimes and consider rape as a crime with an aspect related to the

right of people.223

It will consequently influence the investigation process. When we

consider rape as a crime that violates the right of people, judges are obliged to

do whatever they can to protect the right of people, but if we consider it as right

220

Alame Heli, Ed Shikh Ebrahim Bahadori,Alame heli, tahrir al ahkam, volume 5, page 304, 5,

Etemad, Qom, 2003. 311. 221

Al Musavi Al Khomeini, Ruh Allah,Tahrir alvasileh,,p2-408 Ismailieh,Bita, 2006.,Question

8,characteristics of judge , Sobhani, Jafar,Tahzib alusul,, 2, The association of instructors,

2001.,p112, Najafi, Mohammadhasan,Javaher alkalam fi sharh shara alislam 41, Dar alkutub

alIslamieh,Bita, 1984.p88, Al Ansari, Sheikh Morteza,Alghaza va alshahadat, Sheikh Ansari

Congress, Qom:Bagheri, 1994.p492, Al Khoei, Sayyed Abu Alghasem,Mabani tuklamat

almenhaj, 1, Lotfi, 1987.p31. 222

Marashi, Mohammad Hasan New attitudes in criminal laws of islam 1, Mizan publication,

1994. p237. 223

Al Musavi Al Khomeini, Ruh Allah,Tahrir alvasileh,,p2-408 Ismailieh,Bita, 2006.p 452.


88

of God the judges have to apply Islamic policy of covering that crime or keeping

it undisclosed and try not to prove it. The possibilities to reform these rules by

emphasizing the solutions offered by both Maliki and Shiite schools of thought

will be evaluated and presented in the sections below.

1- As for the evidence system in Islamic law, some Muslim experts

such as Asifa Quraishi have specific viewpoints and suggest that, while the

Quran forbids sexual intercourse outside of marriage, it does not suggest any

punishment to administer unless Zina happens in public. Based on this view, the

Quranic verses, which emphasize the necessity of testifying by four witnesses to

prove the occurrence of Zina, were revealed in response to the accusation made

against Aisha, the Prophet’s wife. In an event, she disappeared for a day from a

caravan and then was found and brought to the caravan by a soldier. After this

event, some people in Medina accused Aisha of having an illegal sexual

relationship. In order to prevent the Muslim from accusing honorable women,

the Prophet announced the necessity of four witnesses to prove Zina. Reviewing

the Quranic verse also indicates that revealing this verse aimed to protect the

honor of women against unfair accusation. It is stated as follows “Those who

accuse chaste women, and then are unable to produce four witnesses, flog them

with eighty stripes….”224

The tone of the verse especially the term “chaste

women” indicates that God would try to protect the women against the slander

and to make it difficult for people to easily make accusations against loyal

women.225

In another verse about a woman accused by her husband of adultery,

we read the following “chastisement shall be averted from her by her calling

God four times to witness that he is indeed telling a lie.”226

This verse, like the

previous one, emphasizes the fact that a woman’s honor should be protected

from false accusations. From the second verse, it can be seen that the woman’s

swear is considered as sufficient for averting the punishment of Zina and

proving her innocence. Thus, punishing women because of rumors going around

or assumptions has no basis in Islam. In addition, the Quran clearly indicates

that Qazf, or slander, is also a major crime which is against the spirit and

teaching of Islam.

224

24:4. 225

Alwazir, Atyaf, Ymeni women: The bearers of honor,Al-Masar, Winter 2004.p7. 226

24:8.

89

This principle of Islam has unfortunately become a negative point in rape

cases and the principle which was meant to support women is now being used

against women victims of rape. The necessity of four witnesses in proving rape

has resulted in the women’s own condemnation.

2- As already pointed out, the Maliki School of law, among other

Islamic legal schools, had a specific look at rape, which led to elaborating the

crime of rape as to its definition, evidence and procedure in a different way than

Zina. Under this perspective, rape is a composite, dual crime consisting of

fornication in which God’s right is violated and usurpation of property in which

an individuals’ right is violated. Therefore, considering rape as usurpation or

Ightisab, the Maliki jurists made the procedure through which this crime is

proven much simpler than Zina. Adopting the same procedure (providing two

witnesses) which is used in proving property usurpation crimes helped in this

regard. Therefore, they permitted rape victims to support their claims by the

testimony of two witnesses (compared to the four witnesses needed for Zina).

Finally, this perspective helped the jurists of this school to use circumstantial

evidence, or Qara’in in proving the crime of rape, which was not accepted in

establishing Zina. This circumstantial evidence includes for instance testimony

to having heard her cry, being carried to a place by force, identifying the signs

of assault on her body and bleeding.227

Another important point attended to by

Maliki jurists is the relationship between a level of certainty gained by the

evidence and the degree of the strictness of the punishment. Accordingly, in

cases where both aspects of the crime of rape, i.e. usurpation and coercive

fornication are proven, the Hadd punishment for Zina besides the dower

compensation will be administered. However, in cases where usurpation is

proven (by the testimony of two witnesses) and not Zina, but with a strong

possibility that Zina has also occurred, monetary compensation and a lesser

punishment known as Tazir will be given. In cases where it becomes clear that

the man is innocent and the woman has intentionally tried to accuse him of rape,

the woman will receive the punishment of slander.

3- Recognizing knowledge of judges is the method that has been

offered by Shiite jurists, mainly the contemporary ones. In fact, it is another

method to validate circumstantial evidence. Acceptance of this type of evidence

227

Ibn Farhun,Tabsirat al-hukkam fi usul al-aqdiya wa-manahij al-ahkam, 2, Maktabat al-

Kulliyy¯at al-Azhariyya, 1986. p 97.


90

represents the fact that the Shiite school also acknowledges the dual nature of

rape that includes both a violation of the right of people and a violation of a

right of God. Therefore, in accordance with this approach in Shiite, it can be

concluded that knowledge of judges under some conditions is acceptable in

crimes such as rape. This type of evidence should also be validated by some

valid documents such as inspection of the place, reconstruction of the scene of

the crime by the judge, experts’ opinions, the ideas of forensic medicine,

scientific police, fingerprinting of the documents, blood testing, genetic analysis

of the cells, inspection of defendant’s body and car and generally all advanced

and new devices which can help furnishing the crime etc.228

Referring to the above-mentioned possibilities which is aimed at

simplifying the process of proving crimes at procedural stages and preserving

the right of people, it can be concluded that according to some specific

perspectives within certain Schools of law, rape has both aspects of right of God

and of people, which therefore excludes it from the regulation of covering crime;

assimilating it to the crimes of violating the right of people. Categorizing rape

only under Zina results in violating the rights of the victims. If we accept the

dual nature of rape, when a victim of rape complains to the court, the witnesses,

police, judge etc. should not try to cover the crime but should use every means

to prove it because it also contains rights of people.229

Therefore, in cases where

we face a combination of a violation of the right of God and people, knowledge

of the judge is applied for investigating and proving the crime in order not to

violate the right of the victims. The judge has to collect different elements of

evidence on the basis of which the sentences will be pronounced and if he

convinced the crime has happened, he has to administer a proper punishment

even from the Tazir category.230

In these dual cases, even if the complainant

expresses his or her consent and forgives the offender, the investigation about

the case would not be stopped because in such crimes that involve dual rights,

228

Karamali, Davood, Proving value of knowledge and awareness of the judge in sexual

crimes,the monthly journal ofprocedure, 2001.p 125. 229

Ibid. it should be mentioned that this policy should be considered in all investigation process,

police, courts etc. All staff of criminal justice system, including judges, police etc. should keep it

in their mind that for Zina they do not have to search for evidence to prove it, however, for rape

they have to search for every form of possible evidence. 230

Musavian, Sayyed Abulfazl,The territory of reasoning of knowledge of judge in

jurisprudence,, the office of jurisprudence, 2006.p 85.

91

societal interests were also violated and then judges cannot let the defendant run

away from another punishment such as Tazir.

In order to achieve this goal, regulating separate evidence codes is one of

the important subjects in judiciary systems and reforming such codes can release

the judges from confusion and disorders in using evidence. Lack of

comprehensive and independent rules about evidence and the weakness of laws

and religious ambiguities concerning some cases such as the nature of such

crimes have even prevented judges from applying their knowledge in this regard.

Therefore, it is the task of Islamic jurists to remove the above mentioned

ambiguities by using accepted religious methods such as interpreting religious

and legal sources independently through skillful methods (Ijtihad) etc. and pave

the way for the legislators to reform the legal system. Acknowledging the

knowledge of judges and circumstantial evidence are sort of Ijtihad meaning that

jurists should recognize and highlight the rights of women and other individuals

who are violated through rape. In this process the role of judges is incredibly

important; the rules should, however, be reformed too.231

2.5.2 Right to compensation of women victims of rape

2.5.2.1 Introduction

The impact of rape on women varies from mental, physical and

reproductive harms, economic disasters to the breakdown of their families and

communities. The crime of rape most often also damages the physical integrity

of victims. This physical damage in rape could be even mayhem, deficiency,

amputation and disability. Rape involves serious physical damages to a

woman’s body in a way that sometimes they are raped so violently that they

bleed to death or suffer from irreparable tearing in the genital area, causing

231

It is worth noting that Dara rule does not mean that even Ta'zir punishment is not inflicetd

for the defendant. So in some cases such as confession, less than 4 the Hudud punishment can be

dropped, but Ta'zir sentence can be administered. In other words, the punishment itself is not

rejected but the severe punishment of death, which is irreparable, and irreversible is removed.

Even sometimes capital punishment can be removed after 4 confessions in case of threatening

outside the court has been made for confessing. (One of the conditions of confession is

confessing before the judge not any other official that has been determined for maintenance of

the rights of defendant) and this topic is justifiable in Islamic punishment system that should

eventually be done with caution and carefulness in such punishments.


92

long-term incontinence and severe infections.232 Rape often requires treatment

for abrasions and tears; some women need suturing. If provided within hours,

emergency contraception could prevent an unwanted pregnancy and HIV

infection. Thus, compensation should be provided for any economically

assessable damage, as appropriate and proportional to the gravity of the

violation and the circumstances of each case.233 Financial support, which is the

simplest and most prominent supporting measure for victims, has several forms

ranging from compensating the costs that are incurred during the crime such as

transportation, loss of wages, court costs to financial support for multiple

injuries like physical, mental and emotional damage. The ways of paying

damages to victims could include forcing the perpetrator to pay compensation or

through government compensation schemes.

In Islamic law, the compensation system for women victims has been

divided into three main systems. One of them is “Diyah” or “blood money” as a

general system for compensation which is agreed upon by all groups of Muslims

and the other are particular compensation for defloration and compensation for

intercourse, which is meant for women victims and is more controversial

amongst different Islamic jurisprudences. A description of different methods of

compensation in Islamic law is provided below.

2.5.2.2 Compensation for injuries (Diyah)

In Islamic and Arab traditions, Diyah or blood money is the fine paid by

the killer or his family or clan to the family or the clan of the victim

232

Nowrojee, Binaifer, Making the invisible war crime visible: Post-conflict justice for sierra

leone's rape victims,Harv. Hum Rts. J., 18, 2005. (note 23) p 85. Shapland, Joanna, Victims, the

criminal justice system and compensation,Brit. J. Criminology, 24, 1984., Miller, Ted R, Cohen,

Mark A and Rossman, Shelli B, Victim costs of violent crime and resulting injuries,Health

Affairs, 12, 1993., Koss, Mary P, Changed lives: The psychological impact of sexual

harassment,Ivory power: Sexual harassment on campus, 73, 1990., O'neill, Eugene and Long, A,

Changed lives: The psychological impact of sexual harassment. 233

A/RES/40/34, 29 November 1985, Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power indicates, “When compensation is not fully available from the

offender or other sources, States should endeavour to provide financial compensation to: (a)

Victims who have sustained significant bodily injury or impairment of physical or mental health

as a result of serious crimes; (b) The family, in particular dependants of persons who have died

or become physically or mentally incapacitated as a result of such victimization..”

http://en.wikipedia.org/wiki/Clan

93

(comparable to the traditions of weregild and główczyzna). Diyah is therefore a

property prescribed for compensating the homicide or physical damage and

injury. The treatment finds repeated endorsement in both the Quran and Islamic

tradition. The Quran specifies the principle of Qisas (i.e. retaliation), but

prescribes that one should seek compensation (Diyah) and not demand

retribution, which is stated in the following terms:

We have prescribed for thee therein ‘a life for a life, and an eye for an

eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and

for wounds retaliation;’ but whoso remits it, it is an expiation for him, but he

whoso will not judge by what God has revealed, these be the unjust.234

As can be seen from the above quotation, while Quran prescribes Qisas,

at the same time, it advises people to forgive or receive Diyah. It also shows that

the Quran does not differentiate between murder (including intentional and

unintentional) and maim.235

Therefore, it is unlawful for a believer to kill a

believer and he who kills a believer accidentally must pay Diyah to the heirs of

the victim except if they forgive him. Several instances have been reflected in

the Ahadith, which indicate the tradition of the Prophet. A variation of Diyah

was common in pre-Islamic Arabia, where it was paid in terms of goods or

animals rather than cash.

There is no specific amount for Diyah in the Quran and the fine does not

vary according to gender, or state of freedom of the victim. However,

the Quran leaves open its quantity, nature and other related affairs to the

customs and traditions of the society. Nevertheless, according to some

traditional interpretation of Islamic sources, some believe that the amount of

Diyah devoted to women is different from that of men; women receive half of

what men do.236

In addition, in case of injuries, the amount of Diyah for male

and female Muslims is identical in injuries for which the amount of Diyah

reaches one third of a complete Diyah which is payable for homicide.

234

5:45. 235

Gahmāmidī, Jāved Ahmad and Saleem, Shehzad,The penal sharīaah of islam, Azeem Ayub,

2004. P35. 236

Jabei Ameli(Second Martyr), Zein Aldin Masalek alafham fi sharh shara alislam, 2, Basirati,

1979. P 15.

http://en.wikipedia.org/wiki/Qur%27an

http://en.wikipedia.org/wiki/Qur%27an


94

However, the amount of a complete Diyah for women shall be half of

that for men. In cases where the women are entitled to receiving less Diyah, they

can demand for retribution of the male offenders only after paying the excess of

the male’s Diyah. Then, the more severe injuries the women get, the less

monetary support in terms of Diyah they will get, which should be interpreted as

a negative deviation of the principle of individuals equality, which therefore

leads to depriving women from the same support men have in cases of maim

and mayhems. This may suggest that there is no equality between a man’s

existence and a woman’s and that a man’s life is more valuable. According to

the theory of secondary victimization237

, this could act as a factor in further

victimization of women, both in family and society. This approach, which is

common amongst all Islamic schools, has been justified based on the general

rules in some jurisprudence. For instance, the Shiite claim that since men are

obliged to pay the alimony and the cost of living of their family, killing a man

has disastrous consequences on his family, which are far greater in comparison

to killing a woman, which is, nonetheless, the same in the case of injury.238

Nowadays, however, some recent efforts have been made to solve this

problem – which will be explained later.

2.5.2.3 Compensation for defloration

In some countries, raping a virgin has often been deemed a more serious

crime than that of a non - virgin woman. In the past, this was mainly due to the

idea that women were men’s properties. Non-virgins were not as desirable as

virgins on the marriage market.239

Sometimes, in Islamic societies when

innocent girls were deflowered, they were accused of committing adultery, and

in some regions they were honor killed or forced to commit suicide or avoid

marriage fearing accusation of adultery. However, losing hymen is not always

237

Please see footnote 5. 238

However, since nowadays, women also play more and less a similar economical role in the

society as men, this justification does not seem to be correct any more for all cases particularly

for rape. Because of that some Muslim scholars suggest to give authority to judges to evaluate

each case and determine equal Diyah based on economic role of that woman in the family. Some

countries such as Iran as it will be explained later also changed the law and provides equal

Diyah for women. Muhaghegh Damad, Sayyed Mustafa International friendly human

rights(islamic strategy), Center of publication of Islamic sciences, 2004. p 12. 239

Smith, Merril D,Encyclopedia of rape, Greenwood Publishing Group, 2004. P 295.

95

seen as a result of adultery, but sensitivity to this issue comes from the customs,

traditions and habits in Islamic countries.

One of the types of sexual violence in behavioral form which has been

discussed in Islamic criminal jurisprudence is “Defloration” which requires

compensation and is subject to imposing certain punishments on the criminals.

Accordingly, if anyone breaks a girl’s hymen using an object or by committing

rapes or adultery s/he is required to pay the girl “Mahr-Al-mesl” (undesignated

dowry) besides Diyah for injuries as compensation and he will also be punished

under Tazir or Hudud.240

Thus, if a defloration results from rape, both Shiite and

Sunni jurists have discussed this extensively from the perspective of injury or

“Jinayah”. They have presented this issue under the subject of injuries occurred

in cases of coercive Zina; injuries such as tearing of perineum and the

compensation will be then in two forms; Diyah and Dowary.241

Of course, the

occurrence of rape or other kind of crimes should be proven at first.

2.5.2.4 Compensation for intercourse

Regarding compensation when the raped woman is not virgin, there are

different views amongst different jurists that will be explained below. All

Islamic legal schools unanimously agree that in case of injuries, the attacking

person is forced to compensate the injuries he has imposed by paying a certain

amount of money. However, there is not such agreement with respect to

compensation for intercourse of a free woman who was raped.

In the Maliki, Hanbali and Shafi`ī legal schools, in case of rape imposed

on a free woman, it is believed that the perpetrator has violated two kinds of

240

Therefore, defloration as a crime against women has two outcomes for women, physical and

psychological breakdowns. To compensate physical damage, Islam has determined Diyah and

dowry, but about psychological consequences, another system for compensation which is excess

of Diyah (compensation of damages that are more than amount of Diyah) has been foreseen,

which will be explained in the next chapter. 241


York: Oxford University Press, Forthcoming Sunni jurists believe that in such cases if the injury

is limited to partial tear, the perpetrator is subject to paying a fine which is 1/3 of a woman’s

blood money. However, if a total tear takes place, a full Diyah must be paid. In Shiite

jurisprudence, in addition to paying a full Diyah in all cases, the perpetrator is obliged to pay the

proper dower.


96

rights: “rights of God” and “rights of the person”. The former violation is

punishable by the specified Hadd such as flogging and the latter requires the

transgressor to compensate the damages by paying a certain amount of money.

Based on this viewpoint, the free woman who has been raped will receive

money as compensation.242

The amount of which should be equal to that of

dowry determined in each society for marrying such a woman (Sadāq or mahr or

Mahr-Almesl).243

In fact, in the case of free woman, rape is seen as something

violating her conjugal right and as a result should be satisfied by paying an

amount of money equal to her dowry. The Hanafi School of law believes that

the raped woman should not be paid dowry compensation because paying dowry

has been legalized in Islam just for cases of marriage and then it is against the

intention of lawmakers to apply the same rule(s) in cases of rape which is

classified under Zina not marriage. As a result, they believe that paying money

to a woman victim of rape is similar to paying money to a prostitute.244

In Shiite

jurisprudence, there is disagreement over this issue; however, the majority of

Shiite jurists believe that Mahr al-Misl (Dowary) should be paid to the victim.245

The proof of this sentence can be found in some Ahadith narrated from the

seventh Imam.246

Sheikh Tusi, the great Shiite scholar of the fifth century has

expressed two different opinions in this regard in his two books.247

In one of his

views, he argues against giving monetary compensation to the raped woman due

242

In the case of a slave girl, they all agree that the money should be paid to the owner of the

slave for the damage imposed on his property since in the case of a slave girl, rape is a kind of

usurpation of sexual property which should be compensated. In should remind here that the

relation between slave and owner in traditional sense was as same as marriage, so as same as

marital rape, the rape of slave by owner cannot be categorized under rape and it can be put under

Tazir crime. Regardless of this similarity, there were many differences between marriage and

ownership relation. 243

However, if woman commit Zina, she will not be victim anymore and then she is not entitled

for Mahr-Almesl. 244


York: Oxford University Press, Forthcoming 245

Al Mohaghegh Al Heli, Abol Ghasem Najm Al Din, Sharie alislam fi masaele halal and

haram, 4, shiaonlinelibrary, 1839 , Alame Heli, Ed Shikh Ebrahim Bahadori,Alame heli, tahrir

al ahkam, volume 5, page 304, 5, Etemad, Qom, 2003 , Alheli, A'l Alame,Ghave al ahkam, 3,

shiaonlinelibrary, 1998. ibid. , Alhendi, Al Fazele,Kashf al letham,, 10, shiaonlinelibrary, 2004.p

84. 246

Maghrebi., Alghadhi Alnoman Al, Daa'em al -islam, 2, shiaonlinelibrary, 1963. p 290. 247

Behbodi, Al Shekhi Al Tousi. Ed Mohamad Bagher, Mabsout, 3, shiaonlinelibrary, book

Had , p 10.

97

to the Hadith that said that there is no compensation for the prostitute. Another

reason he cited is the principle of barā’at al-dhimma, which underlies the

Presumption of Innocence principle. However, most of other Shiite jurists claim

that the raped woman is to receive the dowry because she is not a prostitute and

the dowry is in fact the price of usurping the sexual organ. Therefore, it should

be paid to a raped woman whose sexual organ has been usurped.248

In concluding the compensation section, it should be stated that the

fundamental cause behind the opposing positions supported by different Islamic

schools of law mainly between the Hanafī and the Maliki (also Shiite and Shafi)

regarding this issue is in the definition of rape and the category under which

each school places rape. This has major consequences not only for sentencing

perpetrators, but also for rules of evidence and procedure, which has been

explained earlier.249

As mentioned before, most Islamic schools believe that any

sort of sexual intercourse occurring between a man and a woman who are not

married to each other or where there is no ownership relationship between them

is called Zina, and rape is categorized under Zina, which is part of Hudud as

well. However, Islamic schools have various opinions in determining the rights

which are violated by rape and the ways these violations should be compensated.

The Maliki and Shiite schools opine that in case of Zina, only the right of

God is violated, while in the case of a rape, the rights of people are violated as

well. They argue that, in performing rape besides committing a sin which can be

regarded as violation of God’s right, the male invader has usurped and illegally

utilized the woman’s body and sex organ for which he should compensate by

paying marital dowry. If rape is defined as just Zina, the rights of the woman

victim will be totally neglected. It is true that rape is similar to Zina in terms of

unlawful sex intercourse, but it should be differentiated from consensual Zina.

Therefore, based on Maliki and Shiite Schools, rape involves two kinds of

248


York: Oxford University Press, Forthcoming Shī`ī jurisprudence is also multivocal on the

correct amount of damages payable to the owner of a sexually misappropriated slave woman.

Some argued that the owner is owed 1/10th of her price if she was a virgin and 1/20th is she was

a matron, while others argued that the owner is owed her dower (mahr), as well as a separate

fine for defloration if she was a virgin (called arsh al-bakāra). 249

Hina, Azam, Competing approaches to rape in islamic law,University of Texas at Austin,

Forthcoming in Feminism, Law and Religion Ashgate Publishing Ltd. 2013.


98

violations, one which is similar to Zina concerns the violation of God’s right

which is compensated by imposing Hadd punishment and the other one which is

violation of the right of the victim which does not occur in Zina and should thus

be compensated by paying a fair amount of dower suitable for such a woman.250

Thus, they believe that the two kinds of rights are both independent and are not

dealt with based on hierarchy. As a result, the satisfaction of divine rights does

not prevent the fulfilling of rights of people. Therefore, in cases where two

rights are violated, like the case of rape, both rights should be compensated.

On the other hand, based on Hanafi legal system, women victims of rape

are not entitled to receiving any monetary compensation, because the permission

for this compensation has not been given in Islamic sources such as the Quran

and Prophet’s saying or procedure. Besides, rape is a variant of Zina in which

only God’s right is violated and as a result the perpetrator should receive only

Hadd punishment.251

The Hanafi scholars claim that the rights of God in some

crimes are superior to the rights of people, and as a result, when the former is

compensated, the latter does not need to be satisfied.

It seems that the theory and arguments expressed by the Maliki and

Shiite are stronger and more logical in terms of proprietary ethics than those of

the Hanafis. They believe that in rape, a sort of property (woman’s sexual organ)

has been usurped and it should be discussed under the subject of property

usurpation or abduction.252

Although some of the issues that mentioned above

have been already discussed in traditional Fiqh, there are still some unanswered

questions which should be addressed by Modern Fiqh or by contemporary

thinkers of Islamic jurisprudence. Specifically, the following questions should

be explicitly addressed: (i) are there any possibilities to make the amount of

250

ibid. 251

Ibid. In this regard Hina Azam says: "These differences can largely be summed up as a

tension between a lesser and greater commitment to a proprietary sexual ethics, by which I

mean an ethics in which female sexuality is conceived as property, as a usufruct that is

commodified and thus monetizable, and for which notions of male ownership, purchase and theft

make sense. ….In terms of theocentric versus proprietary concerns, this hanafī argument clearly

prioritizing the former. 252

For more information about the second reason which is about the identity of marriage and

dower in Islamic law see Hina Azam, "Competing Approaches to Rape in Islamic Law"

(Forthcoming in Feminism, Law and Religion Ashgate Publishing Ltd. 2013) University of

Texas at Austin.

99

Diyah paid to a female victim in rape cases equal to the amount paid to men

victims? (In traditional jurisprudence, it is half of men’s Diyah)? (ii) If the

amounts payable for the damages excess the amount of a complete Diyah, what

will happen? (iii) Can this extra amount be reimbursed according to Islam? And

(iv) Can spiritual damages be compensated according to Islamic law? These are

some of the problems women victims of rape are faced with nowadays and

should be dealt with by jurists.

2.6 Conclusion

From the views described in this chapter, it is clear that there is no

unanimous and unique viewpoint regarding rape among different schools of the

Islamic law. However, all the jurists have referred to the same sources including

the Quran and the sayings and acts of the Prophet. This indicates that different

jurists have had different readings of the same material. As we discussed in this

chapter, different schools of law, as appears through the opinions expressed by

prominent figures of each school, have looked at the topic of rape and its related

issues from different angles. In this chapter, the main reasons which made some

jurists form such special opinions about rape, for instance relating to evidence

and procedure has been discussed. It has been pointed out that the basic problem

in the perspective of Islam towards rape is that it is seen as a subdivision of Zina

or fornication. It is regarded not as an independent crime, but as a coercive form

of illegitimate sexual relationship. This is reflected from the kind of

punishments assigned to it, the types of evidence through which it is established,

and from the fact that marital rape is not recognized by different schools as rape.

In some cases, claimants have subsequently found themselves being punished

for fornication (Zina) because their accusations were perceived as constituting

confessions to consensual illicit sex. It demonstrates the fact that Zina has come

to be used as a punitive measure for women victimized by rape. Despite the fact

that the punishments and evidence preserved for Zina were, in principle, meant

to protect the honor and dignity of women, nowadays they have unfortunately

been interpreted in a way that makes them work against women themselves.

Although different schools such as Maliki and Shiite have attempted to

present some solutions and provide different evidentiary systems etc, at the

procedural level, it is up to judges to prove rape or not, based on their perception


100

of the nature of rape and how to categorize it. This special look at rape, although

it may be inferred incorrectly from the sayings of the Prophet and the verses

from the Quran, is a direct consequence of the contradiction of the general

attitude and treatment of the Prophet and Islam which have been based on

justice. This special look emphasizes the immorality of the act of rape as an

illicit sexual intercourse, but ignores the harms and damages inflicted upon the

rape victim and may cause her to be isolated from her society.

The only point which makes rape distinct from Zina in Islamic attitude is

the necessity to pay Diyah as a monetary compensation to the raped victim. Still,

the idea of paying dowry to the victim adopted by the majority of law schools

indicates that, for them, rape is a kind of Zina and the dower is paid considering

the crime from this aspect. In other words, the point at stake is distinguishing

between what is supposed to be at the core of rape and what is secondary.

According to all the schools, the origin of criminality of rape is because of illicit

sexual intercourse. Therefore, they focus more on the sexual relation outside

marriage and minimize the coercive nature of rape. 253

Some Muslim jurists have attempted to reform fundamental perspectives

on rape and solve the problems that victims faced. The approach of divine and

individual rights taken by some jurists as regards rape is one of them. There are

also some other attempts made by the contemporary Muslim experts who have

tried to offer a new interpretation of Islamic moral law in which the concepts

such as gender and justice are taken into consideration. This interpretive

mechanism in Islamic law may be used to support the women victims of rape

too. For instance, Quraishi, is a Muslim scholar who points to the Quranic

concepts such as, honor, privacy and dignity of women to be taken into

consideration when handling issues like rape. She thinks that the importance of

such concepts in the Quran demonstrates the gender-equality approach of Islam

in all aspects.254

Quraishi suggests to classify rape under the concepts like

Haraba and Jirah or injuries. Based on this classification, rape is seen as an act

253


Studies Association Conference, 1997. 254



(2000), Syracuse University Press, 1997.p287.

101

leading to the victims’ bodily injury. Then the victim woman is entitled to

monetary compensation for the harm. 255

In cases where the intercourse is non-

consensual, any physical harm inflicted on the woman should be compensated

under the law of Jirah besides the payment of the Diyah which is a general

monetary compensation of the crime. The fact that rape has not been classified

under Zina and rather has been seen as a crime of injury or property seizures is

also confirmed by other figures including Karamah256

who claims that different

Islamic sources would regard rape and Zina as two completely different

crimes.257

Similarly, Alwazir refers to the Quranic verses in which the women's

honor has been emphasized as a mechanism to consider women's rights and

dignity in contemporary judicial processes.258

Quraishi and Alwazir are two

examples of the Muslim feminists who have tried to reform the Islamic law

using the framework and mechanism available within the Islamic law. Clearly,

they consider cultural attitudes as a challenging issue as regards women’s rights.

However, in addition to the cultural attitudes which obviously cause problems

for women's rights, the political power can also lead to a special reading and

interpretation of Islamic law causing injustice to women in the society under the

name of Islam.259

255

ibid. p200. 256

Organization Muslim Women Lawyers for Human Rights. 257

http//www.karamah.org/docs/Zinā_article_Final.pdf (accessed 1/19/09). In a critique of

Malaysian laws on Zinaand rape, the group Sisters in Islam writes: “There was better

understanding on the crime of rape in certain classical Islamic jurisprudence, when rape was not

classified under the sub-category of Zina(as it is codified in modern legislations including in

Terengganu). Instead, rape was classified under categories of violent crimes – either hirabah

(robbery) or ightisab (violent trespass, usurpation) – and was regarded by a classical jurist, Ibn

`Arabi, as the worst form of hirabah.” [www.sistersinislam.org.my, accessed 1/19/09] In the

blogosphere, we read, “Several scholars believe it is incorrect to class rape as a crime of Zinā.

Instead it should be classed under Hiraba.”

ect[http://feminijtihad.wordpress.com/2008/10/20/crimes-of-zinā/ (accessed 1/19/09)] 258

Alwazir, Atyaf, Ymeni women: The bearers of honor,Al-Masar, Winter 2004. P 30. 259



(2000), Syracuse University Press, 1997.p302.

Chapter 3: Iranian interpretation of Islamic law regarding rape

102

3 Chapter 3: Iranian interpretation of Islamic law regarding rape

Chapter 3:

Iranian interpretation of Islamic law

regarding rape

3.1 Introduction

Iran is an example of an Islamic state in which rape has been so closely

aligned with fornication and adultery that victims are sometimes punished for

committing Zina rather than seeing their attackers convicted. This chapter

analyses the tools used in this country to deal with this crime. First of all, the

legal framework and the constitutional system in Iran will be explained, because

we need theses explanations particularly for the sake of the next chapters. Then,

various aspects of the protection of women rape victims in substantive and

procedural law (in Iran) will be analyzed, as well as assessing practical

procedures that apply such rules in practice such as law enforcement institutions,

the police etc. This will provide the whole picture about the experience of rape

victims under criminal law, procedural law as well as the legal culture

dominating the police, judges and so on. The behavior of criminal justice

institutions demonstrates how legal culture and the opinion of police, judges etc.

regarding rape victims can influence the situation of victims and prevent judges

103

from applying rules properly. It demonstrates the fact that victims in this

situation are at risk of secondary victimization, while rules, somehow, appear to

have a protective function.

3.2 The legal framework and Constitution

Iran has a population of over 70 million people including Persians,

Azeris, Kurds, Baluchs, Lors, Arabic-speaking tribes and clans, different

religious communities and foreign immigrants, mainly from Afghanistan and

Iraq.260

Following the Islamic revolution in 1979, a new Constitution(IC) was

adopted in the same year, which was modified and amended in 1989.261

Iran is

an Islamic Republic as Article 1 of the Constitution mentions. Article 2 also

stipulates that:

The Islamic Republic is a system based on belief in: 1) the One God (as

stated in the phrase “There is no god except Allah”), His exclusive sovereignty

and right to legislate, and the necessity of submission to His commands; 2)

Divine revelation and its fundamental role in setting forth the laws; … 4) the

justice of God in creation and legislation; … 6) the exalted dignity and value of

man, and his freedom coupled with responsibility before God; in which equity,

justice, political, economic, social and cultural independence, and national

solidarity are secured by recourse to: c) negation of all forms of oppression,

both the infliction and submission to it, and of dominance, both its imposition

and its acceptance.

Article 3 lists among the State Goals “Securing the multifarious rights of

all citizens, both women and men, and providing legal protection for all, as well

as the equality of all before the law”.

The Constitution guarantees equality before the law, civil and political

rights, such as the right to life, freedom from torture and fair trial rights and

economic, social, and collective rights. For example, Articles 19-42 of the

Constitution and Article 14 of the Constitution provides:

260

UN Doc.HRI/CORE/1/Add.106Core Document forming part of the reports of States Parties:

Islamic Republic of Iran, 15 July 1999, para.1-12. 261

The Constitution of the Islamic Republic of Iran, 1979, as amended in 1989.


104

The government of the Islamic Republic of Iran and all Muslims are

duty-bound to treat non-Muslims in conformity with ethical norms and the

principles of Islamic justice and equity, and to respect their human rights. This

principle applies to all who refrain from engaging in conspiracy or activity

against Islam and the Islamic Republic of Iran.

These rights are granted in accordance with Islamic principles that have

been mentioned in constitutional law, for example, Article 20 of the Constitution

provides “All citizens of this country, both men and women, equally enjoy the

protection of the law and enjoy all human, political, economic, social, and

cultural rights, in conformity with Islamic criteria.”

Also Article 4 of the Constitution notes:

All civil, penal, financial, economic, administrative, cultural, military,

political, and other laws and regulations must be based on Islamic criteria. This

principle applies absolutely and generally to all articles of the Constitution as

well as to other laws and regulations, and the wise persons of the Guardian

Council are judges in this matter.

Therefore, Iran has two parallel systems of law: namely the law of

Islamic lawyers (Islamic Mojtahids, Jurists) and codified positive law.262

In

other words, in the preamble, as well as Articles 2, 4, 57, 72, 110 and 170 of the

Constitution, the law appears as a state of Islamic jurists, but together with the

dominant Islamic law elements. There are articles such as 1, 6, 56, 59, 78-83,

87-89, 159, 161, 166 and 169, which bind the state to a form of modern

legalism.263

262

http://www.redress.org/downloads/country-reports/Iran.pdf. 263

- Relevant Provisions:

Art. 1 The form of government of Iran is that of an Islamic Republic, endorsed by the people of

Iran on the basis of their longstanding belief in the sovereignty of truth and Qur’ānic justice, in

the referendum of [March 29-30, 1979], through the affirmative vote of a majority of 98.2% of

eligible voters, held after the victorious Islamic Revolution led by the eminent marji‘ al-taqlīd,

Āyatullāh al-‘Uzmā Imam Khumaynī.

Art. 12 The official religion of Iran is Islam and the Twelver Ja‘farî school [in usūl al-Dîn and

fiqh], and this principle will remain eternally immutable. Other Islamic schools, including the

Hanafî, Shāfi‘î, Mālikî, Hanbalî, and Zaydî, are to be accorded full respect, and their followers

105

The judiciary is consisted of ordinary, military and revolutionary courts

of first instance and appeal courts. Courts of first instance (or ordinary) are

General Courts that enjoy general competence. The competence of

Revolutionary Courts is restricted to charges of narcotic crimes and security

related offences. The highest court is the Supreme Court that does not have the

power to review the constitutionality of laws. The Courts have to refrain from

applying any executive decrees that are inconsistent with Islamic law or have

been issued by a breach of executive competences. The cancellation of such

decrees can be requested by an appeal to the Tribunal of Administrative Justice

(divān ‐ e adālat ‐ e edāreri) (Article 170 IC).264

There is also a Court of

Administrative Justice that has the power to investigate complaints, grievances

and objections with respect to government officials, organs, and statutes (Article

173 of the Constitution). Military courts are competent to investigate crimes

committed by members of the Army, Gendarmerie, police, security forces and

the Islamic Revolution Guards Corps, in connection with military or security

are free to act in accordance with their own jurisprudence in performing their religious rites.

These schools enjoy official status in matters pertaining to religious education, affairs of

personal status (marriage, divorce, inheritance, and wills) and related litigation in courts of law.

In regions of the country where Muslims following any one of these schools of fiqh constitute

the majority, local regulations, within the bounds of the jurisdiction of local councils, are to be

in accordance with the respective school of Fiqh, without infringing upon the rights of the

followers of other schools.

Art. 77 International treaties, protocols, contracts, and agreements must be approved by the

Islamic Consultative Assembly.

Art. 167 The judge is bound to endeavor to judge each case on the basis of the codified law. In

case of the absence of any such law, he has to deliver his judgments on the basis of authoritative

Islamic sources and authentic fatāwā. (...)

Article 170 Judges of courts are obliged to refrain from executing statutes and regulations of the

government that are in conflict with the laws or the norms of Islam, (...)

Art. 177.6 The contents of the Articles of the Constitution related to the Islamic character of the

political system; the basis of all the rules and regulations according to Islamic criteria; the

religious footing; the objectives of the Islamic Republic of Iran; the democratic character of the

government; the wilāyat al-’amr; the Imamate of Ummah; and the administration of the affairs

of the country based on national referenda, official religion of Iran [Islam] and the school

[Twelver Ja‘fari] are unalterable. 264

Koetter, Matthiasm Schuppert, Gunnar Folke, Ramin Moschtaghi, Understandings of the rule

of law in various legal orders of the world, rule of law in iran,Rule of Law Working Paper

Series Nr. 11, Berlin (ISSN 2192-6905), 2010. available at

http://wikis.fu‐berlin.de/download/attachments/22347860/Moschtaghi+Iran.pdf.


106

duties (Article 172 of the Constitution). In the Iranian judicial system, besides

the ordinary, revolutionary and military courts that are within the jurisdiction of

the Judiciary, the administration Regulation of the clerical (ecclesiastic) (clergy)

courts decreed on 27 July 1990 by the Leader established an independent

judicial body for cleric’s offences. Furthermore, the Head of the Judiciary can at

any time ask for the revision of a judgment duly rendered, including final ones,

if he believes that it is contrary to Islamic laws. 265

The executive branch consists of the President and his ministers. Both

the President (article 122 IC) and his ministers (article 133 IC) are accountable

to parliament. The executive may issue decrees when explicitly provided by law

or in order to facilitate the implementation of laws and to organize their

departments (Article 138 Para. 1 IC). Executive decrees may not be at variance

with the laws. In case of decrees based on article 138 IC this prerequisite can be

controlled by Parliament (Article 138 Para. 3 IC). The Guardian Council, which

consists of six Faqihs (Islamic jurists), appointed by the leader, and six jurists,

elected by the Majlis (the Parliament) from among Muslim jurists proposed to

the Majlis by the Judiciary, examines the acts of the Parliament with a view to

safeguarding the rules of Islam (in accordance with Islamic Shiite jurisprudence)

and the Constitution (Article 91 of the Constitution). The Guardian Council

examines all legislation passed by the Parliament and returns it there for review

if it finds any inconsistency with its understanding of principles of Islam and the

Constitution. Because Article 94 of the Constitution and Article 72 of the

Constitution provide that the Majlis may not enact any laws contrary to the

principle and rules of the official faith of the country or the Constitution. In case

of a difference of opinion between the Parliament and the Guardian Council on

the compatibility of a bill (passed by deputies) with Islamic rules or

constitutional provisions, the Council for Assessing the Interest of the Islamic

state -or Expediency Council- shall decide( Article 112 of the Constitution).

3.3 Sovereignty of Islamic law in Iranian legal system

After the Islamic revolution in Iran, there were some changes in order to

provide Islamic rules in Iran. So upon this, juridical current comments and

265

http://www.redress.org/downloads/country-reports/Iran.pdf.

107

Fatwa (a fatwa is a religious opinion that Muslims obey if they revere the person

issuing it) of well-known jurists are considered, in somehow, as the base of

making rules while these were not important before.266

As it has already been

mentioned, Article 4 IC establishes the absolute priority of Islamic law267

for the

Iranian legal system by providing that all laws and regulations including the

constitution have to comply with Islamic law.268

Due to the absolute dominance of the Sharia, it is affecting the legislative

system. The legislative competences of the parliament are severely limited by

Articles 4, 72 IC prohibiting any legislation in variance to the rules of the

official Shiite school of Islamic law that will be controlled by the Guardian

Council. As an additional protection to apply Islamic rules, the Constitution

obliges Iranian judges to avoid applying any executive decrees and regulations

which are opposite to Islamic rules (Art. 170) Therefore, Sharia is a basis of

judicial decisions too and judges must base their decisions on codified law; if

the law is silent on a certain issue, they may refer to “authoritative Islamic

sources and authentic Fatwa” as subsidiary sources (Art. 167).

This dominancy has several effects, for example, some crimes have been

defined unclearly like Hostility to God (Moharebeh) and Spreading of

Corruption on Earth (Mofsed fel’arz) which provide judges with an extensive

discretion to define and interpret them. Another point is that according to Article

167 IC the judges may refer to sources of Islamic law or Fatwa of jurists in case

of absence of codified laws even in criminal cases. This enables judges to issue

sentences and punishment based on Fatwa in case of absence of formal

legislation. These possibilities have been mentioned in several penal laws (e.g.

Article 638 Law on Islamic Punishments; also Articles 18 and 42 of the

Procedural Code of the Special Courts of the Clergy). Finally, because of this

system, everything has to be interpreted based on Islamic rules, for example,

whereas Article 19 IC stipulates that all Iranians, whatever their ethnic group or

266

Mehrpoor, Hosein, Necessity of revolution in legislation,MOFID Magazine, 1, 1996., p 107. 267

By the term Islamic rules, Iran exclusively refers to Islamic law in the interpretation of the

Shiite Jafari School of law which is the religion of the majority of people and official religion of

Iranian state. Article 12 IC. 268

Koetter, Matthiasm Schuppert, Gunnar Folke, Ramin Moschtaghi, Understandings of the rule

of law in various legal orders of the world, rule of law in iran,Rule of Law Working Paper

Series Nr. 11, Berlin (ISSN 2192-6905), 2010.


108

tribe, color, race, languages, religious affiliation are equal, the rules are applied

differently in practice and should be interpreted differently based on Islamic law.

For example, regarding the equality of men and women, the guaranty of equality

between them in Article 20 IC is restricted to equality according to the rules of

Islam. Consequently, equality between men and women and human rights are

guaranteed “in conformity with Islamic criteria” (Art. 20). Due to the prevailing

interpretation of Islamic law sometimes, Iranian women are subject to

discrimination both by law and by its application. Therefore, with reference to

the above-mentioned points, according to IC, Islamic law has a high position in

the Iranian legal system that influences all executive rules, parliamentary

legislation, international relations and even the Constitution itself.

3.4 Situation of women victims of rape in Iran

The protection of rape victims will be evaluated in three main parts:

protection in light of criminal legislation, procedural law and the behavior of

staff of criminal justice institutions.

3.4.1 Protection in light of criminal law

The legislative system is the main source for providing the means for the

recognition of the rights of victims and for making up legal requirements that

apply to the personnel and staff working in the criminal justice system. Any

failure and weakness in the law governing the judiciary (including substance and

procedure law) can cause serious problems in the process of investigation and

consequently result in difficulties for the victims. Although a reform of

regulations governing the criminal justice system will not be enough to resolve

cultural issues and questions of public bias, the supporting role of legislation in

changing the manner in which staff working in the criminal justice system treats

rape victims cannot be ignored.

Protection of victims in substantive law can be achieved by criminalizing

sexual offences, determining responses to criminal acts and adopting restorative

approaches to formulate an adequate response that befits the crime, the offender

and the victim.

109

3.4.1.1 Criminalization of rape

In the Iranian criminal system, with regard to sexual offences the

emphasize is on unacceptable behavior of the accused and not on the physical

damage caused to the victim. Because of this, sexual offences are not considered

in the category of offences against the person but are included in other

categories. Sexual crimes in Iranian criminal law inspired by Shiite

jurisprudence could be classified under two categories of “Hudud” and “Tazir”.

Sexual crimes that are considered as “Hudud” include:

1- Zina including Adultery, intimacy and rape (Art. 63 of the Islamic Penal

Code) (hereafter IPC);

2- Buggery (Art.108 IPC);

3- Lesbian acts (Art.127 of IPC);

4- Sexual slavery (Art.135 of IPC);

5- False accusation of sexual crimes, (Art.139 of IPC)

Overall, according to the importance of these crimes in Iranian criminal law five

chapters of Hudud were approved in 1992 (Revised in 2013), dedicated to these

crimes.

With regard to rape, the most pressing problem in Iranian criminal law

is that there is no specific definition of rape in the penal code. In addition, the

legislative authorities have not predicted any separate topics for sexual offences

and their different forms. Article 63 of Iranian penal code has mentioned the

definition of “Zina” as follows:269

"Zina is [defined as] sexual intercourse of a man with a woman who is

inherently prohibited to him even if it is anal intercourse, other than the cases

where intercourse is made under mistaken identity.

269

There is the difference between the concepts of "adultery" (i.e., sexual intercourse of a

married man with a woman other than his wife, or of a married woman with a man other than

her husband) and "intimacy" (i.e., sexual relationship between two unmarried persons).


110

In addition, Article 82 mentions the punishment of the types of

“Zina”270

and while there is no specific definition of rape in the penal code, the

offense of rape is punishable by death. Looking at the Iranian legislation, it

appears that the legal definition of Zina shows that both acts of Zina and Zina-

bi’l-jabr (forced illicit sexual relations, i.e., rape) are defined as “sexual

intercourse without being validly married.” Clearly, the only difference between

the two acts (and it is a major difference) is that rape occurs without consent.

Therefore, it is the duty of judge to recognize the force and coercion and in

many cases, judges have used the definition of “Zina” for defining rape in

addition to proving the force and coercion.

This method of legislation has not recognized marital rape under the

category of rape. It may be included under another category of crime i.e.

domestic violence, Jirah etc. In this system, rape also requires sexual intercourse

with the opposite sex, therefore, use of external objects or other methods such as

forced oral sex have not been considered rape.271

Although effective protection

of rape victims is not necessarily guaranteed by means of developing and

clarifying the scope of this crime and using it to discern adequate punishment,

an appropriate definition is one of the most important components in the

protection of the victims.

3.4.1.2 Penalization of rape

Punishment has various and sometimes conflicting objectives. By

determining the quantity and quality of punishments, legislators demonstrate

their concentration on some specific objects of punishment. Penology’s

achievements and results of experimental research on the effectiveness rate of

punishments can help judicial officials and lawmakers to be able to choose the

appropriate response compatible with the offenses, the character of the offenders,

justice to the victims and suffered damages. Achieving the aims of punishments

such as inhibition, improvement and treatment, debilitation, compensation and

270

Some types of “Zina” are punishable by death: 1- Incest (sexual relations between

individuals who are closely related), 2- "Zina" with stepmother, 3- "Zina" between non-Muslim

man and Muslim woman (the punishment here is for the non-Muslim man), 4- Rape 271

However, use of external objects or other methods such as forced oral sex that are not

officially recognized as rape can be punishable as other forms of sexual violence under Tazir

category.

111

restoration regardless of the retributive aspect of punishment, requires a wide

diversity of punishments. Plurality and diversity in the penal system will provide

more opportunities for judges to deliver better and fairer sentences.272

According to Article 82 of IPC, rape will result in the death penalty for

offenders. Practically, if a woman cannot prove that the sexual act occurred

without her consent (i.e., if she cannot prove that she was indeed raped), the

sexual act itself becomes a crime against society and therefore the woman

becomes liable for “intimacy” or “adultery”. The prescription of the death

penalty for the offense is probably a protection mechanism for rape victims, but

the severity of the death penalty has resulted in judges being reluctant to use this

sentence. For this reason, rape cases are referred to the related courts to be

investigated as other potential crimes such as “intimacy”.

This unrealistic protective measure has caused victims, sometimes, to

being brought before courts instead of guaranteeing that perpetrators are

punished. Consequently, few rapes are reported, while those cases that are

brought forward result in unjust punishment for victims. In fact, the burden of a

lack of proper punishment is born by the victims.

Another problem with this punishment is the inflexibility of death

penalty. In some cases, proper criminal responses require legislative system or

judges to determine another punishment for particular offenders. In other words,

when the punishment is the same for all rape cases, there are no ways to have an

aggressive response to some particular rape cases such as committing rape with

minorities, committing rape when there is a huge gap between the age of

offenders and victims, or committing rape when it results in pregnancy of the

victims etc. The punishment in these cases is the same as punishment in simple

rape case; for both the punishment is death. In addition, this punishment is not

comprehensive because by having the offenders executed it gets difficult for

272

For more information please see: Beccaria, Cesare,On crimes and punishments, Transaction

Publishers, 2011 , Daly, Kathleen,Gender, crime, and punishment, Yale University Press, 1994 ,

Daly, Kathleen, Revisiting the relationship between retributive and restorative

justice,Restorative justice: from philosophy to practice. Dartmouth: Ashgate, 2000 , Greenawalt,

Kent, Punishment,Journal of criminal law and criminology, 1983 , Von Hirsch, Andrew, Doing

justice: The choice of punishments,1976.


112

policy makers to find out the real reasons and motivations of committing crime

and to protect people against further victimization.

Finally, it is not a comprehensive punishment for offenders because there

is no formal compensative system. Most jurists believe that the women victims

of rape are entitled to receive particular dowry273

or when the victim is virgin,

she is entitled to receive another particular dowry for defloration. Although it

seems that these are some kinds of compensation in Islamic context, they are not

enough to redress all of their physical and mental damages, this issue will be

elaborated later on.

3.4.2 Protection in light of procedural law

While substantive law has been adopted for the protection of victims and

social order, procedural law will form the basis for ensuring and implementing

the protection of the rights of victims and of defendants. In performing the

functions of handling of claims, gathering and presentation of evidence,

procedural law should also incorporate protective mechanisms by ensuring

respect to the right of privacy of rape victims and by removing barriers of access

to criminal justice. The following sections will discuss the right to providing

evidence and right to compensation to show how these rights in Islamic law

have been reflected in domestic law.

3.4.2.1 Right to providing evidence

One of the most important tools used by victims to prove their claim is

the presentation of legal evidence. With the development of scientific methods

for discovery of sexual crimes and of scientific evidence related to forced sexual

relations, victims encounter fewer difficulties in proving rape.274

In Iran, the

273

Mousavi Ardebili, Abdu Alkarim Jurisprudence in huddud and ta’zir ( feghh al-hudud va

ta’zir) Alamir al moemin publication, 2003. P 147. 274

Please see: Farrokhi, Mansour, The application of forensic techniques for the discovery and

proof of crimes against physical integrity,International Proceedings of Economics Development

& Research, 28, 2012. P 235, Juhl, Kirsten,The contribution by (forensic) archaeologists to

human rights investigations of mass graves, Museum of archaeology, Stavanger, Norway, 2005.,

Giannelli, Paul C, Criminal discovery, scientific evidence, and DNA,Vand. L. Rev., 44, 1991.,

113

most important barrier is that there are no specific rules for proving rape and

consequently, the evidentiary requirements are the same as with "Zina".

Therefore, this section at first will discuss the legal evidence that is required for

proving "Zina" in Iranian procedural law.

Given the severity of punishment for the offense of Zina, strong

evidence beyond doubt is required. According to Iranian law, "Zina" can be

proven by the following evidence: 1.A clear, free, and willful confession by the

person that is guilty of the act of Zina. The confession ought to be willful,

repetitive and insistent, denoting the real desire of the sinful person. However, if

that person retracts his/her confession, he/she is not punishable (except when

there is the presence of witnesses, as indicated below), because there would no

longer be any proof of the occurrence of the prohibited act. Moreover, for a

confession to be valid, it is required that the person accurately states the facts of

the act of adultery/illicit sex in clear and real words. The person who confesses

to Zina should not be insane or minor, so that all doubts are removed (Iranian

Criminal Code, Article 68). 2. The testimony of four reliable and credible eye-

witnesses, all of whom must have witnessed the actual intercourse (i.e., actual

penetration). Any disagreement about the time of the act, its place leads to the

rejection of the accusations (Iranian Criminal Code, Article 75-76). 3. The

knowledge of judges (or Conviction of judges) is the most important and crucial

evidentiary requirement. If the judges are convinced that the accused committed

the crime through some evidence, for instance one or two witness or one time

confession or a medical report, etc., they can then issue the sentence against the

accused (Iranian Criminal Code, Article 105).

According to Article 67, if the adulterer or adulteress claims he/she has

been forced to commit adultery, the claim will be accepted provided there is no

proof to [believe] otherwise. However, since the punishment is death in practice,

the judges refuse to apply this article and typically ignore that.275

The legal

evidence may be of use for proving Zina, but for proving rape the above criteria

Boyce, Ronald N, Judicial recognition of scientific evidence in criminal cases,Utah L. Rev., 8,

1962. 275

In addition, according to Article 73, a pregnant, single woman will not be sentenced to

penance, unless it is proven by one of the means mentioned in this law that she has committed

adultery.


114

cannot be of any help to the victims. Limiting legal evidence to traditional

evidence such as confessions and testimonies, along with the lack of scientific

methods of assessment make it impossible to prove the rape in many cases. In

rape cases, the confession method does not work because the offenders may

confess once or twice and even after having confessed four times, they can

retract their statements. In some cases, it may happened the accused confesses to

rape time after time but refuses to admit this in court and the lack of other types

of evidence forces the judges to issue acquittals. There is a similar problem with

testimonial evidence. Either the number of witnesses or the conditions of

testimony might come into question. There are two articles about the number of

witnesses needed to prove other types of Zina. Article 74 mentions that “Zina in

an adultery case can be proven by the testimony of four adult men or three adult

men in addition to two women.” Article 75 mentions that: "Zina in an intimacy

case can be proven by the testimony of four adult men or three adult men in

addition to two women or two adult men in addition to four adult women”. The

above articles are not about rape and there is no specific article about the legal

number of witnesses needed to prove rape. Moreover, the conditions for

ascertaining the truth of the testimonies in Zina are difficult to establish. As

mentioned before, the witnesses have to see the actual intercourse while in many

cases rape happens in a private place or in such a way that the witness cannot

see the exact behavior taking place. Although these conditions in other types of

Zina could protect women and may prevent heavy sentencing, in rape cases they

cannot support women victim of rape. Because of the above-mentioned

problems, women who fail to meet these requirements run the danger of being

punished for other crimes such as intimacy. For this reason, many victims prefer

not to report rape.

However, the authority given to judges in order to find out the truth

(recognizing knowledge of judges) and the regulation under the Article 67 IPC

can be very helpful for victims of rape and reducing their problems.

Recognizing this power by IPC has allowed judges to consider the private aspect

of rape (dual nature for rape) and may try to do the best to discover the truth.

115

3.4.2.2 Right to compensation

Financial protection of rape victims, including meeting medical costs,

travel and commuting expenses, loss of salary, unemployment (demurrage)

losses and other physical, emotional, psychological and intellectual injuries

should be envisaged.276

The following part will examine the compensation

system in Iranian laws.

In most cases, the protection of women through IPC is not as the same as

the protection offered to men. For example, according to the previous Iranian

penal code a women victim of physical aggressions received less compensation

than men. “Diyah” is defined under Article 294 of IPC (Ratified in 1991 and

Revised 2013) as follows: "Diyah (Blood-Money) is a property to be submitted

to the victim or to his/her Blood-Guardian or Guardians or heirs (Owliae-Dam)

due to a crime committed against his/her life or the members of his/her

body”. Diyah is therefore a property prescribed for indemnifying the homicide

or physical damage and injury. According to Article 301 of the former IPC,

Diyah for men and women is identical as long as the amount of Diyah reaches

one third of complete Diyah in which case the women's Diyah shall be half of

the men's Diyah, in this case women after paying the different amount, will be

able to demand for that man retribution. According to this general article, by

increasing injuries in women, the level of protection will be reduced by half and

this means negative deviation of the principle of individuals equality and

depriving women from the same support as men against maim and mayhems.

However, some recent efforts have been made to address this problem –

although they are not comprehensive, it looks as promising changes. For

example, according to new law that has been ratified in 2013 the amount of

Diyah is equal between men and women. And also, according to the insurance

regulations, in case that several persons are dead or suffer from physical damage

due to traffic accidents and the person who has caused such damage is sentenced

276

Commonly, each legal system has two ways for providing compensation: through the

offenders and through state-funded compensation schemes. Putting the burden of financial

compensation on the offender may keep him/her accountable to a further degree for his/her

criminal action. In Iranian criminal law, compensation through state-funded mechanisms is

possible in some cases such as murder, but there is no provision of a specific and independent

outline and rubric for compensation in rape cases.


116

to pay several blood-money (Diyah) or damages, the insurer shall be obligated

and should indemnify all the victims both women and men equally for their

losses. Another example can be found in procedural law. For example, the

reform of section 4(sub 2) of the “Compulsory Civil liability insurance for

owners of land transport motor vehicles against third parties” act was inspired

to some extent by the endeavor to establish equality of Diyah between women

and men. With this amendment, discrimination between men and women’s

Diyah is solved in some cases with measures of public interest.

Compensation excess of Diyah

The possibility of compensation of victims in the cases that the amount

of Diyah is less than real damages is controversial. However, some Muslim

scholars believe that if the amount of Diyah becomes more than a determined

rate, the offender or in some cases, the government should provide it. This

further amount is “compensation excess of Diyah” that has been accepted

officially by legal department of judiciary system.277

Some of the well-known

jurists in Iran also approve the possibility of compensation excess of Diyah. 278

They established their arguments with accord to general principles of Islam such

as “La-Zarar279

or “there is No-Harm in Islam” and “Tasbib”.280

All these

principles represent the fact that all kind of damages should be compensated

with accord to Islamic law.

In addition, the Iranian legal system also accepts Diyah and dowary for

defloration and intercourse. Therefore, in Iranian law, compensation of women

277

Legal doctrine NO 4125.7 in 26 February 1998. 278

Makaremshirazi, Jurisprudence sentence, Andishe Nab press, 2010.P112. Marashinajafi,

Shahab Al-Din,Explaining thesis on different issues, General Library Press, 1989. P234. For

instance, Makarem Shirazi” issues Fatwa that, “It is necessary for criminal to pay compensation

excess of Diyah”. He explained: “according to “La-Zarar” principle, criminal should afford it”.

In addition, another jurisconsult “Marashi Najafi” believes: “claim of compensation excess of

Diyah is completely in compliance with the Sharia & jurisprudential rules”. 279

It is a basic principle in Islamic law & rights, is derived from prophet Mohammad Hadith

“there is no harm & loss in Islam”, Jomhur, Ibn Abi,Avali al-la’ali, 1, Seyyed al-shohada press,

1984. P 383. 280

“Tasbib”, is a basic principle in Islamic penal code, this principle is not from Hadith, but

from Islamic jurisconsults.

117

victim is possible through three main systems including Diyah, compensation

excess of Diyah and dowary for defloration and intercourse.

3.4.2.3 Judicial approach toward victims of rape

Criminal justice institutions have an important role in the protection of

women victims of rape. The realization of measures prescribed in substance and

procedure law is dependent upon executive mechanisms in the police, as well as

the courts and forensic medicine. However, the weaknesses in substance and

procedure law tend to worsen the problems victims and directly influence on

victim’s situation in the investigation process, courts etc. the behavior of staff of

criminal justice system such as police and judges get influence not only from the

rules but also from cultural and social attitude toward rape, which will be

explained below.

Police and protection of rape victims

Police are at the frontline of legal protection. The police are most likely

to have the first contact with victims. The first interaction between the police

and the victim is crucial to how the victim will recover. The victim should be

treated with courtesy, compassion, and respect for his or her dignity and privacy

at all times. Considering their complaints in a serious fashion, while observing

their dignity, can play an important role in providing victims with satisfaction,

even if the defendants are not arrested or punished.281

Another important task of

the police at this stage is the diagnosis of victims’ needs, including sending them

to consulting centers and supporting emotional and psychological care.

Employment and education of female police officers are important strategies

that should be pursued for the protection of rape victims.

According to Iranian criminal procedural law, police are banned from

any intervention in rape cases; therefore, prosecution and investigation of rape

281

Wemmers, Jo-Anne M,Victims in the criminal justice system, Kugler Publications, 1996. P

218, Hotaling, Gerald T, Buzawa, Eve S, Zweig, Janine, Burt, Martha R and Van Ness, Ashley,

Victim satisfaction with the criminal justice system,National Institute of Justice Journal, 253,

2006., Erez, Edna, The impact of victimology on criminal justice policy,Criminal Justice Policy

Review, 3, 1989.


118

are the courts’ obligations. However, the practical procedure of criminal courts

showed that some cases, illegally, have been referred to the police for the

completion of the investigation because of some problems such as a high

number of cases in courts, and a lack of sufficient time to investigate all of them.

Research conducted with rape victims show that the main reasons for victims’

dissatisfaction are related to some factors such as not having enough attention

paid to their complaints, not being taken seriously, being asked personal

questions, their privacy not being respected, the use of inappropriate words in

the investigation, the lack or weakness in the consulting services and evidence

not being collected and recorded in some cases.282

Because of some problems in

Iranian criminal procedure, there has been an effort to systematically and legally

amend the code. This draft amendment has passed the final stage of legalization

and will be put into practice in the coming years. According to Articles 15-121

of this draft, a trained female police officer should do the investigation of

women, including victims and offenders. This means that investigation of

women victim of sexual offence will be done by female police officers instead

of courts. Article 33 of this draft also indicates, “Investigation on women and

children must be done by women or trained men officers”. Moreover, Article 85

requires the police to protect the privacy of victims’ statements and other

information.

Courts and “Judicial evasion” to prove the rape

As previously mentioned, the fact that offenders are to be sentenced

with the death penalty has resulted in judges’ avoidance of proving rape,

especially in cases where the victim is thought to be negligent. This behavior

could be called "judicial evasion”.

“Certificate of forensic medicine” is one of the most important tools that

criminal courts cite to prove the crime. If this document does not cite signs of

physical injuries, in most cases, the claim of the victim is not accepted. In many

cases, victims are probably just threatened of murder, battery, etc. In fact, in

judicial discourse, the physical status of victim is the most important sign to

282

Azari, Hajar,Protection of women victim of sexual offences with especial focus of their

privacy, Tarbiat Modares University, 2006. P 105.

119

prove rape and the victims’ consent. Lack of physical evidence is often

considered as the reason for the victim’s consent. If victims are not referred to

centers of forensic medicine immediately -due to negligence or lack of physical

access to the penal court- and the physical signs vanish, proving rape in most

cases is not possible.

“Investigation” of the accused and the victim and their statements are

other documents used by courts. However, judges’ conception of rape's meaning

and designed scenario of "judicial evasion" can be found in the style and type of

questions during interrogation. Analysis of rape cases has shown that according

to the judges’ viewpoints, any previous relationship between the accused and the

victim or victim's criminal history, especially liaison or prostitution in some

cases, have been considered sufficient evidence to prove the victim's consent.

Regarding the above information, it is seen that a judge’s sentence is based

mainly on interpretations, tools and methods which dictate that rape can be

prevented by the victim. The traces of these notions can be found simply in

interrogation in questions like "Why you did not ask for help? Why did you not

cry? Why did you not escape? Why did you not resist?" Any decision in this

regard requires the utilization of opinions by experts and psychologists to

examine the reactions of different groups of women in such situations.

Therefore, the weakness in the evidence system, inefficient tools used for the

detection of facts and the severity of punishment in most cases has resulted in

the acquittal of the defendant in rape cases.283

Forensic medicine and protection of rape victims

In different countries, forensic medicine has been formed based on

different legal principles. In some countries such as Australia and England, it

acts as part of the health and medical system. In this group of countries, forensic

medicine has a duty to assess and evaluate the evidence of crime as well as

provide medical and psychiatric services for the protection of the victim.

Medical treatment and forensic documentation is complemented by an

interdisciplinary approach including legal, social and mental health services to

guarantee that all women patients are treated with dignity. This could be called a

283

Ibid. P 225.


120

“protection-centered system”. In other countries such as France and Iran, it is

part of the judiciary system. In these countries, forensic medicine is required

only to assess the evidence and the duty of provision of medical protection is put

on other institutions. Understanding the position of victims in this stage, and

providing them with mental, emotional and physical protection will give

researchers valuable insight in reducing the problems of victims. In Iran, victims

are introduced to the forensic medicine only when they report the crime to

police or to judicial office. Once they do, they will be referred to forensic

medicine for a confirmation of the injuries.

Obtaining a medical certificate in Iran requires the payment of medical

tariffs. In some cases, the costs surpass the victim's financial power. Regardless

of this problem, the staff of forensic medicine only assesses the evidence that is

necessary for courts and they do not get necessary training for the protection of

women victims of rape. Many victims complained about the opinion of staff

members about the rape,284

for instance believing that "only prostitute women

are raped". Moreover, the results reported by experts only focus on physical and

visible injuries. No attention is paid to mental injuries caused by this crime. The

amount of bureaucracy involved in referring victims to forensic medicine as

well as the signs of rape disappearing has doubled victim's problems. In general,

the main problems of rape victims when dealing with forensic medicine are

rooted in several factors. Firstly, many victims do not have any knowledge

about the importance of this institution. It means that sexual crimes often cause

fear and shame and the crime remains hidden for a long time. Sometimes when

the victim decides to report the rape, the signs of crime have already vanished.

This problem clearly demonstrates the importance of referring victim to forensic

medicine immediately. The second point is that vague medical reports and the

use of professional words sometimes make reports difficult to understand for

judges. In many countries, this problem has been fixed through the attendance of

the forensic medicine representative in court hearings. The last point is the lack

of effective interaction between forensic medicine and the courts which

sometimes leads to dis-functioning in the process of detecting the truth.

284

ibid. P 210.

121

3.5 Conclusion

In Iranian law, the rules about the protection of female victim are very

scattered. There are no comprehensive and independent rules dealing with the

issue in either substantive or procedural law. The Iranian Constitution takes an

ideal view of women’s rights including a section on women in its introduction

and specific provisions (Articles 21 and 22) on equality before the law and

women’s rights. However, the rights given to individual should be compatible

with Sharia. The Iranian criminal law is directly based on Islamic law; therefore,

the definition of crimes and their punishments is based on Iranian interpretation

of Islamic law (Shiite jurisprudence). It is also the case for definition of sexual

offences and their punishments. Severity of punishment (execution) for crimes

such as rape could be perceived of as offering protection to women, but in rape

cases, the harshness of punishment works against the victims leading judges not

to apply protective rules. Capital punishment for perpetrators of rape has created

a kind of conflict between restorative justice and criminal justice. In addition,

inappropriate use of this punishment and the gap between the punishment of

Zina and that of rape has resulted in judges not being able to strike a balance

between response and the crime. In procedural law, rules relating to the

protection of women are limited and scarce as well. Reviewing rules that apply

to rape cases show that physical and psychological injuries have not been

completely recognized yet. The criminal justice system should focus on a

restorative approach and on ensuring criminal responsibility for offenders -for

emotional and psychological damages- as well as using protective and

therapeutic mechanisms to reduce the consequences of victimization. Moreover,

it seems that arranging systematically the legislative policies in Iran, comprises

only one part of protective strategies. Since sexual offences are taboo in Iran,

this culture also has been reflected in the behavior of staff of criminal justice

system i.e. police, judges etc. Therefore, in the next step, training the personnel

of criminal institutions is essential in developing protection programs. The most

important fact that should be noticed is that even when perpetrators receive the

appropriate verdict or the process of investigation is carried out in accordance

with the victims’ desires, there are some factors that cause victims’

dissatisfaction. It is a recognized fact that the rate of victims’ satisfaction on the

criminal justice system is not only dependent on the actual criminal conviction


122

but also on other factors such as behaviors of the criminal justice personnel in

the court processes.285

Therefore, understanding women's experiences of these

crimes and compensating for the damages they suffer are very essential issues in

tackling sexual crimes against women.286

The point should be considered that

real justice should not seek only to punish offenders, but also to provide

adequate access for victims to the criminal justice system and ensure the

appropriate treatment of the victims in this system.

However, some recent efforts have been made – although they are not

comprehensive, it seems promising. For example, in the new criminal law, the

amount of money for compensating women is equal between men and women.

In addition, the new criminal procedure bill (not yet adopted) at some points

addresses the protection of victim women. Despite these efforts, there is a long

way to go before female victims will be comprehensively protected. Existing

rules in Iran do not properly respond to social and legal gaps and needs, and it

will be necessary to legislate further in order to achieve the protection of female

victims of violent crimes.

The next part of this research will examine how international law deals

with rape and how international treaties have prescribed norms that provide

protection to victims with regard to receiving compensation and providing

evidence. That section will also come back to the Iranian case study in order to

evaluate the position of international law within the Iranian legal system. It also

tries to explain whether or not human rights’ tools could be effective in

protecting rape victims in Iran. If they are not, how can these tools be translated

into the different cultural and religious contexts that populate these countries?

285

See please: Wemmers, Jo-Anne M,Victims in the criminal justice system, Kugler Publications,

1996. pp 71- 92-152 , Hotaling, Gerald T, Buzawa, Eve S, Zweig, Janine, Burt, Martha R and

Van Ness, Ashley, Victim satisfaction with the criminal justice system,National Institute of

Justice Journal, 253, 2006. 286

Bronitt, Simon, No records-no time-no reason-protecting rape victims' privacy and the fair

trial,Current Issues Crim. Just., 8, 1996. P 130.

PART II: International legal perspectives on

rape

125

4 Chapter 4: International legal framework

Chapter 4:

International legal framework

4.1 Introduction

The history or development of international law has been documented

broadly, and can be told from various perspectives. One can analyze the

behavior of States or study the evolution of concepts. History demonstrates that

international law is no longer purely state-centric, and has at least partially

included other actors – as is for instance reflected in writings on the sources of

law and their hierarchy. This chapter will deal with the historical evolution of

the concept of the State, of State sovereignty and consent, and with the current

role and impact of non-state actors on international law. This review will

demonstrate how international law can influence domestic and local standards,

and thus contribute to the establishment by States of legal systems that properly

protect victims of human rights violations.

Chapter 4: International legal framework

126

4.2 A brief history of international law

The origins of modern international law can be dated back 400 years

when in Europe states appeared in the wake of the Renaissance and they felt the

need for law to regulate the relations between them.287

However, the origins of similar concepts and practices can be found in

ancient historical politics and relationships thousands of years old.288

In this

sense, the history of international law reflects the establishment of a world

system based on the notion that independent sovereign states are the only

relevant actors in the international system. For example, the roots of treaties as

the basic concept of international law can be found thousands years ago289

: in

approximately 2100 BC an agreement between the rulers of the city-states of

Lagash and Umma in Mesopotamia demarcated the border between their two

states.290

Another example is the agreement between the Egyptian pharaoh

Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 BCE.291

International legal concepts were derived from the practice between Greek city-

states and the Roman law concept of ius gentium (which regulated contacts

between Roman citizens and non-Roman people). The basic concepts of

political relations have been developed by ancient Greek political philosophy

and the relations between the Greek city-states. After the collapse of the Roman

Empire in the 5th century CE292

, a group of nation-states emerged. A number of

rules were created to govern their relations such as canon law, trade law and

maritime law.293

In both roman and medieval times, the scholarly jurists played

an important role in the development of international law. In the 15th century,

Greek scholars arrived in Europe due to the collapsing Byzantine Empire. 294

287

Katz, A., Dugard, J., Du Plessis, M. and Pronto, A.,International law: A south african

perspective, JUTA & Company Limited, 2013.p 9. 288

Shaw, M.N.,International law, Cambridge University Press, 2003.p 14. 289

Bederman, David J,International law in antiquity, Cambridge University Press, 2001. 290

Nussbaum, Arthur,A concise history of the law of nations, Macmillan, 1954.pp. 1–2. 291

ibid. pp. 1–2. 292

The 5th century is the time period from 401 to 500 in accordance with the Julian calendar in

Anno Domini / Common Era. 293

Shaw, M.N.,International law, Cambridge University Press, 2003.p 18. 294

Byzantine Empire, the eastern half of the Roman Empire, which survived for a thousand

years after the western half had crumbled into various feudal kingdoms and which finally, fell to

Ottoman Turkish onslaughts in 1453.

127

The introduction of the printing press encouraged the development of scientific,

humanistic, and individualist thought, while European explorers spread

European norms as a result of the growth of ocean navigation.

Following the consolidation of European states, their increasing wealth

and ambitions and the growth of trade, the need for rules governing their

relations increased. Early writers on international law that worked on the

questions of relations between nations were Italian lawyers Bartolo da

Sassoferrato (1313/14–1357)295

, regarded as the founder of the modern study of

private international law, and Baldo degli Ubaldi (1327–1400)296

, a famous

teacher and authority on Roman and feudal law. However, a new approach to

international law in the 16th and 17th centuries was developed by both

Francisco de Vitoria (1486–1546)297

and Francisco Suárez (1548–1617). 298

They argued that international law was founded upon the law of nature. In 1598

Italian jurist Alberico Gentili (1552–1608)299

, considered the inventor of the

secular school of thought in international law, published De jure belli libri tres

(1598; Three Books on the Law of War), which contained a comprehensive

discussion of the laws of war and treaties. Gentili’s work initiated a

transformation of the law of nature from a theological concept to a concept of

secular philosophy. The Dutch jurist Hugo Grotius (1583–1645)300

has

295

Bartolus de Saxoferrato (Italian: Bartolo da Sassoferrato) (1313 – 13 July 1357) was an

Italian law professor and one of the most prominent continental jurists of Medieval Roman Law. 296

A member of the noble family of the Ubaldi (Baldeschi), Baldus was born at Perugia in 1327,

and studied civil law there under Bartolus de Saxoferrato, being admitted to the degree of doctor

of civil law at the early age of seventeen. 297

Francisco de Vitoria, (born probably 1486, Vitoria, Álava, Castile—died August 12, 1546),

Spanish theologian best remembered for his defense of the rights of the Indians of the New

World against Spanish colonists and for his ideas of the limitations of justifiable warfare. 298

Francisco Suárez, byname Doctor Eximius (born Jan. 5, 1548, Granada, Spain—died Sept.

25, 1617, Lisbon), Spanish theologian and philosopher, a founder of international law, often

considered the most prominent Scholastic philosopher after St. Thomas Aquinas, and the major

theologian of the Roman Catholic order, the Society of Jesus (Jesuits). 299

Alberico Gentili, (born Jan. 14, 1552, San Ginesio, Papal States [Italy]—died June 19, 1608,

London, Eng.), Italian jurist considered by many to be the founder of the science of international

law and said to have been the first in western Europe to separate secular law from Roman

Catholic theology and canon law. 300

Hugo Grotius, Dutch Huigh de Groot (born April 10, 1583, Delft, Netherlands—died August

28, 1645, Rostock, Mecklenburg-Schwerin), Dutch jurist and scholar whose masterpiece De Jure

Belli ac Pacis (1625; On the Law of War and Peace) is considered one of the greatest


128

influenced the development of the field more than others. Grotius excised

theology from international law and organized it into a comprehensive system,

especially in De Jure Belli ac Pacis. Grotius underlined the freedom of the high

seas, which quickly achieved acceptance among the northern European powers.

International law in the modern sense is thus perceived of as starting in

the seventeenth century with the publication of Hugo Grotius and the conclusion

of the Treaty of Westphalia ending the Thirty Years War in 1648.301

The

Westphalian treaties of 1648 were a turning point in establishing the principle of

state sovereignty as a cornerstone of the international order.302

The scholars who

followed Grotius are divided into two schools: the naturalists such as the

German jurist Samuel von Pufendorf (1632–94)303

, who emphasized the

supremacy of the law of nature and the positivists such as Richard Zouche

(1590–1661)304

in England and Cornelis van Bynkershoek (1673–1743)305

in the

Netherlands, who stressed the actual practice of contemporary states over

concepts derived from biblical sources, Greek thought, or Roman law. These

new writings also focused greater attention on the law of peace and the conduct

of interstate relations than on the law of war. Ideas from both groups are

reflected in the works of the German philosopher Christian Wolff (1679–

1754)306

and the Swiss jurist Emerich de Vattel (1714–67).307

During the 18th

contributions to the development of international law. Also a statesman and diplomat, Grotius

has been called the “father of international law.” 301

For another approach on the history of international law please see: Anghie,

Antony,Imperialism, sovereignty and the making of international law, 37, Cambridge University

Press, 2007. Fassbender, Bardo, Peters, Anne, Peter, Simone and Högger, Daniel,The oxford

handbook of the history of international law, Oxford University Press, 2012. 302

Aust, Anthony,Handbook of international law, Cambridge University Press, London School

of Economics and Kendall Freeman Solicitors, 2005.p 3. 303

Samuel, baron von Pufendorf, (born January 8, 1632, Dorfchemnitz, near Thalheim, Saxony

[now in Germany]—died October 13, 1694, Berlin), German jurist and historian, best known for

his defense of the idea of natural law. He was created a baron in the last year of his life. 304

Richard Zouche, (born 1590, Ansty, Wiltshire, Eng.—died March 1, 1661, Oxford), English

jurist, one of the founders of international law, who became regius professor of civil law at

Oxford and later practiced successfully in London. 305

Cornelis van Bynkershoek, (born May 29, 1673, Middelburg, Zeeland, Neth.—died April 16,

1743, The Hague), Dutch jurist who helped develop international law along positivist lines. 306

Christian, baron von Wolff, Wolff also spelled Wolf (born January 24, 1679, Breslau,

Silesia [now Wrocław, Poland]—died April 9, 1754, Halle, Prussia [Germany]), philosopher,

mathematician, and scientist who worked in many subjects but who is best known as the German

spokesman of the Enlightenment.

129

century, the concept of natural rights played a major role in the American and

French revolutions. In international law, however, the concept of natural rights

only came to the forefront in the 20th century when two world wars occurred.308

Immanuel Kant believed that international law, as a law that was used to justify

war did not serve peace anymore, and therefore argued in the Metaphysics of

Morals309

that a new international law was needed. After World War I, the

establishment of such a new international law of peace was attempted through

the creation of League of Nations, followed after World War II, by the adoption

of Charter of the United Nations (1945) that nevertheless reconfirmed traditional

notions of state sovereignty and state consent. Today 193 States have expressed

their consent with the Charter through the ratification of the treaty.

The concept of “consent” was also developed in international law long

before World War II. In order to be bound, nations either had to formally agree

to a treaty or contribute to a general practice that was elevated to custom.310

Customary international law essentially reflects the views of states on what

international law requires them to do, and may be laid down at a later stage in

treaties.

In sum, the shift from naturalist to positivist thinking turned State

consent into a key concept in international law. States were the only actors in

international law, as is clear from Bentham’s classic definition of international

law as a system of law containing rules that govern the relations between

states.311

307

Emmerich de Vattel, (born April 25, 1714, Couvet, Neuchâtel, Switz.—died Dec. 28, 1767,

Neuchâtel), Swiss jurist who, in Le Droit des gens (1758; “The Law of Nations”), applied a

theory of natural law to international relations. His treatise was especially influential in the

United States because his principles of liberty and equality coincided with the ideals expressed

in the Declaration of Independence. In particular, his defense of neutrality and his rules for

commerce between neutral and belligerent states were considered authoritative in the U.S. 308

Katz, A., Dugard, J., Du Plessis, M. and Pronto, A.,International law: A south african

perspective, JUTA & Company Limited, 2013.p11. 309

Kant, Immanuel and Gregor, Mary J,The metaphysics of morals, Cambridge University Press,

1996. 310

Tunkin, Grigory I, The contemporary soviet theory of international law,Current Legal

Problems, 31, 1978. p. 177. 311

Bentham, Jeremy,An introduction to the principles of morals and legislation, Clarendon Press,

1879. P 296.


130

International law includes norms and institutions that deal with different

challenges such as peace, security, human rights, the environment, global spaces

etc. It gradually expanded into areas that historically fell within the exclusive

regulatory competence of domestic law, although it still lacks central legislative

and enforcement institutions.

4.3 The subjects of international law

4.3.1 States in international law

Traditionally and historically, states are considered as the main actors

and subjects of international law; and this area of law only regulated the relation

between states.312

States can potentially hold rights and duties across the whole

field of international law. The process of state formation is partly factual, partly

legal. The accepted criteria of statehood were laid down in the Montevideo

Convention (1933), which provides that a state must possess a permanent

population, a defined territory, a government, and the capacity to conduct

international relations.313

States are liable for breaches of their obligations. A

state is responsible for direct violations of international law—e.g., the breach of

a treaty or a customary rule. It is more controversial whether States can also

commit international crimes, as discussed by the International Law Commission

when it was drafting the Articles on State Responsibility.314

During the drafting

process, international crimes were defined as internationally wrongful acts

resulting from the breach by a state of an international obligation so essential for

the protection of the international community’s fundamental interests that its

312

Berman, Paul Schiff, From international law to law and globalization,bepress Legal Series,

2005. P 485.

see also Carter, B.E. and Trimble, P.R.,International law, Aspen Law & Business, 1999.

(“Public international law primarily governed the activities of governments in relation to other

governments.”). 313

165 LNTS 19. International law does not require the structure of a state to follow any

particular pattern: Western Sahara case, ICJ Reports, 1975, pp. 12, 43–4; 59 ILR, pp. 30, 60–1. 314

The articles on state responsibility with commentaries thereto Adopted by the international

law commission. On first reading, January 1997. Article 2 is about Possibility that every State

may be held to have committed an internationally wrongful act. Article 3 and 4 concern

elements of an internationally wrongful act of a State and Characterization of an act of a State

as internationally wrongful. Article 16 and 17 regards Existence of a breach of an international

obligation and Requirement that the international obligation be in force for the State.

131

breach is recognized as a crime by that community. Examples given included

aggression, colonial domination, and genocide. It was argued against the

proposal that only individuals could commit crimes, and that the legal

consequences of State crimes would be unclear. Accordingly, in its draft articles

finally adopted in 2001, the International Law Commission dispensed with the

concept but maintained the idea of a more serious form of international wrong.

The text refers to serious breaches of obligations arising under a peremptory

norm of international law (i.e., the rules of jus cogens, or those deemed essential

for the protection of fundamental international interests).315

4.3.2 Other actors in international law

States are no longer the only subjects of international law, nor are they

the only entities with international legal standing. Other actors tentatively

include intergovernmental organizations (IGOs), non-governmental

organizations (NGOs), multinational corporations (MNCs) and individuals.316

This section focuses on IGOs, NGOs and individuals as they all play important

roles in the global human rights protection system.

International organizations are prominent actors in international law.

The size and scope of international organizations vary from bilateral, sub-

regional, regional, to global, and they may encompass relatively narrow or very

broad subjects. The International Court of Justice has recognized some

international organizations as subjects of international law. In the Reparations

Case, the International Court of Justice confirmed that the United Nations could

315

In such circumstances, all states are under an obligation not to recognize such a situation and

to cooperate in ending it. States may take up the claims of individuals injured because of the acts

or omissions of another state. In such circumstances, the injured persons must have exhausted all

domestic remedies to hold the state responsible unless these are ineffective. Further, the injured

person must be a national of the state adopting the claim. Although states alone possess the right

to grant nationality, if the claim is pleaded against another state, the grant of nationality must

conform to the requirements of international law and, in particular, demonstrate the existence of

a genuine link between the individual and the state concerned. 316

See Carter, B.E., Trimble, P.R. and Weiner, A.S.,International law, Aspen Publishers, 2007.

p 14, Verzijl, Jan Hendrik Willem,International law in historical perspective, 3, Brill Archive,

1970.pp 17–43, See also the Western Sahara case, ICJ Reports, 1975, pp. 12, 39; 59 ILR, pp 30,

56, and Survey of International Law in Relation to the Work of Codification of the International

Law Commission, Memorandum of the Secretary-General, 1949, A/CN.4/1/Rev.1, p 24.


132

recover reparations in its own right for the death of one of its staff members

while engaged on UN business.317

International legal personality was crucial for

the UN to accomplish its duties, and the UN has the capability to bring claims,

to settle international agreements, and to enjoy rights and immunities from

national jurisdictions.

It is accepted that international organizations are subjects of international

law when they: 1. are a permanent association of States, with lawful objects; 2.

have legal powers and purposes distinct from the member States; and 3. can

exercise powers internationally, not only within a domestic system.318

Examples

of this type of international organization are the European Union, the

Organization of American States, the African Union, Organization of the

Islamic Conference and specialized UN agencies.

Since the end of World War II, the leading global organization has been

the United Nations. Although the General Assembly has largely

recommendatory powers, the Security Council can, through a binding resolution,

authorize the use of force if there is a threat to or a breach of international peace

and security or an act of aggression. Since the end of the Cold War, the council

has extended the definition of a threat to or a breach of international peace and

security to cover not only international conflicts but also internal conflicts (e.g.,

in Yugoslavia, Somalia, Liberia, and Rwanda).319

317

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ

Rep 1949, p174. 318

A/64/ 10, International Law Commission, Report of the Sixty - first Session (2009), p19. 319

The International Committee of the Red Cross, based in Switzerland, has a unique status in

international law as an inter-governmental organization as guardian of the Geneva Conventions

of 1949 for the protection of victims of armed conflict. It is neither an international organization

nor a non-governmental organization, but has a special legal status under treaty law by virtue of

its important functions in upholding legal protections in situations of armed conflict. Other

international organizations have developed significant roles in international relations. They

include the World Bank, which provides aid to promote economic development, the

International Monetary Fund, which helps countries manage their balance-of-payments problems,

and the WTO, which supervises and regulates international trade. Regional organizations and

agreements, such as the EU and the North American Free Trade Agreement between Canada,

Mexico, and the United States, govern areas that traditionally have fallen within the domestic

jurisdiction of states (e.g., trade, the environment, and labour standards). Non-governmental

Organisations (NGOs) Organisations such as Amnesty International and Greenpeace are known

133

Next to international organizations, individuals have become important

actors at international level. During the 20th century, a growing body of

international law was devoted to defining the rights and responsibilities of

individuals. The rights of individuals under international law are mentioned in

various human rights instruments and agreements. The development of human

rights law has advanced the recognition of individuals as subjects of

international law because at its heart is the idea that individuals have rights that

they can assert against States under international law.320

Although the UN

Charter includes human rights as a main objective of the organization, an agreed

list of human rights was drawn up later, when the General Assembly adopted

the Universal Declaration of Human Rights (1948; UDHR). Subsequently, the

UDHR was completed by a significant range of international treaties, such as

the Convention on the Prevention and Punishment of the Crime of Genocide

(1948), the International Convention on the Elimination of All Forms of Racial

Discrimination (1965), the International Covenant on Civil and Political Rights

(1966), the International Covenant on Economic, Social and Cultural Rights

(1966), the Convention on the Elimination of All Forms of Discrimination

Against Women (1979), the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (1984), the Convention on the

Rights of the Child (1989), the International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families (2003) and the

Convention on the Rights of Persons with Disabilities (2006). With the

exception of the Genocide Convention these agreements all have established

monitoring committees, which examine the regular reports required of states,

issue general and state-specific comments, and may entertain petitions from

individuals. In addition, the UN has established a range of organs and

mechanisms to protect human rights, notably the Commission on Human Rights

that was succeeded in 2006 by the Human Rights Council. Human rights

protection systems also exist at the regional level. The first system was

established by the Council of Europe when it adopted the European Convention

on Human Rights, which has more than 40 state parties together with a court

as ‘NGOs’ (non-governmental organisations). They do not have international legal personality,

but are involved in international political activity, and on some occasions have taken part in

international activities as members of a State delegation. 320

Stratton, Jane,Hot topics 69: Legal issues in plain language,international law, Legal

Information Access Centre (LIAC), State Library of New South Wales, 2009.p 12.


134

that can hear both interstate and individual applications. Other examples are the

Inter-American Convention on Human Rights and the African Charter on

Human and Peoples’ Rights (1982) which have both a court and a commission.

Together with the rights granted to individuals, international law created

individual responsibilities as well. In particular, following the London Charter

(1945) and the subsequent establishment of a tribunal in Nürnberg to prosecute

Nazi war criminals, individuals have been subject to international criminal

responsibility and have been directly liable for breaches of international law,

irrespective of domestic legal considerations. Individual responsibility was

acknowledged in the Geneva Conventions and their additional protocols and put

into effect by the statutes that created war crimes tribunals for Yugoslavia (1993)

and Rwanda (1994), both of which prosecuted, convicted, and sentenced persons

accused of war crimes. The Rome Statute of the International Criminal Court,

which entered into force in 2002, also provides for individual international

criminal responsibility.

In the field of human rights, Non-governmental Organizations (NGOs)

play a major role, and have even been labeled as “the conscience of the

world.”321

Amnesty International, Children’s Defense Fund (CDF), Human

Rights Action Center, Human Rights Watch, Human Rights Without Frontiers

(HRWF), National Association for the Advancement of Colored People

(NAACP), Simon Wiesenthal Center are some examples of the Human rights

NGOs that monitor the actions of governments and pressure on them to act

according to human rights principles. NGOs can be task-oriented expert bodies

or may be consist of members with a common interest.

NGOs are important mainly in law-making processes through

preparation and adoption of normative drafts, through lobbying, and the

media.322

NGOs may perform a variety of functions such as bringing public

concerns to governments, monitoring policy and program implementation, and

321

Cassese, Antonio,Human rights in a changing world, Polity Press Cambridge, 1990 , Willetts,

Peter,'The conscience of the world': The influence of non-governmental organisations in the un

system, Brookings Institution Press, 1996.p 11. 322

Kamminga, Menno T and Alston, P, The evolving status of ngos under international law: A

threat to the inter-state system?,Non-State Actors and Human Rights, 2002.pp 93,103,104.

135

encouraging participation of civil society stakeholders at the community

level.323

Sometimes NGOs act just as an instrument to encourage states to

conclude treaties such as international campaign to Ban Landmines that resulted

in the 1997 Mine Ban treaty.324

Van Boven perceives the increased involvement of NGOs in human

rights standards-setting as part of the development of an international law of

cooperation “which is supposed to serve common goals and common interests

that are vital for the survival of humankind.” He adds, “The international law of

human rights is a people-oriented law, and it is only natural that the shaping of

this law should be a process in which representative sectors of society

participate. This is a logical requirement of democracy.” 325

International human rights NGOs may affect state conduct. States, as the

primary actors in international law constitute the ultimate target of NGO activity

as well.326

Sometimes formal treaties determine particular tasks for certain

organizations, for example under the articles 9 and 10 of Geneva Convention;

humanitarian organization such as the international committee of the Red Cross

as a special category has an explicit task to protect prisoners of war, a mandate

which stems essentially from the Geneva Conventions of 1949.

But NGOs also take up important roles within international organizations.

For instance, according to ECOSOC resolution 1996/31 (on the Consultative

relationship between the United Nations and non-governmental organizations,

when NGOs meet the criteria in establishing consultative relations with UN,

323

For more information please see: Alston, Philip,Non-state actors and human rights, 9, Oxford

University Press Oxford, 2005. 324

Klabbers, J.,International law, Cambridge University Press, 2013 , Lindblom, A.K.,Non-

governmental organisations in international law, Cambridge University Press, 2005.p 88. 325

Van Boven, Theo, Role of non-governmental organizations in international human rights

standard-setting: A prerequisite of democracy, the,Cal. W. Int'l LJ, 20, 1989.He then continued

that “ While the origin of contemporary international law and a fortiori of international human

rights law is supposed to bend towards serving human and welfare interests, the international

law-making process generally follows traditional patterns with a predominant role for States.

This is an anomaly and reveals a lack of democratic quality”. 326

Joseph, Sarah and Mcbeth, Adam,Research handbook on international human rights law,

Edward Elgar Publishing, 2010.p 123.


136

they will be able to attend the meeting, submit the written statements or have

oral presentations during meetings.327

4.3.3 Current trends and transformation of international law

This part will explain two important factors that influence the era of

international law and transformed it: humanization and globalization.

4.3.3.1 Globalization

Many scholars have attempted to define globalization. Globalization can

be described as inter-connectivity between regions, peoples, ethnic, social,

cultural and commercial interests across the globe. The phenomenon has

affected different legal fields, including international law.328

Globalization refers to a “stretching process,” in which “connections

have been made between different social contexts or regions that become

networked across the earth as a whole.329

” For the purposes of international law,

globalization means that in a globalized world, international law recognizes

different state interests and finds ways to give effect to them, with the specific

327

ECOSOC Resolution 1996/31, 49th plenary meeting, 25 July 1996. 328

See, e.g. Berman, Paul Schiff, From international law to law and globalization,bepress Legal

Series, 2005.colum. J. Transat’l l. 485, 490; Sands, Philippe, Turtles and torturers: The

transformation of international law,NYUJ Int'l L. & Pol., 33, 2001. P527, 537; Moreover, the

term “globalization” has been used in many different fields besides the law, such as

anthropology, sociology, etc. For example, anthropologists have argued that we live in the

“global cultural acumen” or a “world of creolization.” Ulf Hannerz, Notes on Hannerz, Ulf,

Notes on the global ecumene,Public culture, 1, 1989.at 66; Foster, Robert J, Making national

cultures in the global ecumene,Annual review of anthropology, 1991.,Hannerz, Ulf, The world

in creolisation,Africa, 57, 1987. Sociologists, similarly, have shifted their emphasis from

bounded “societies” to a “starting point that concentrates upon analyzing how social life is

ordered across time and space….” Giddens, A.,The consequences of modernity, Wiley, 2013. 329

Anthony Giddens ‘The Globalization of Modernity" quoted in Colonial Discourse and Post-

Colonial Theory (Eds.) Patrick Williams and Paula Chrisman, Harvester Wheatsheaf, New York

1993 p. 181. Sands, Philippe, Turtles and torturers: The transformation of international

law,NYUJ Int'l L. & Pol., 33, 2001. p 537; see also Giddens, A.,The consequences of modernity,

Wiley, 2013. p 64. On globalization in general and its effect on the law, see, e.g., Falk, Richard

A,Predatory globalization: A critique, Polity, 1999 , Spiro, Peter J, Gobalization, international

law, and the academy,NYUJ Int'l L. & Pol., 32, 1999 , Stern, Brigitte, How to regulate

globalization,The role of law in international politics, 2000.

137

consequence that what a state does on a particular matter may be of specific

interest to another state.330

Thus, activities that were in the competence of

domestic law under the traditional conception of international law are now

internationalized.331

Because of the forces of globalization, the concept of the

sovereignty of states is changing in practice and international law has

transformed from a set of legal rules which only govern inter-state relations, to a

set of transnational documents that provide a legal framework for all different

actors on the international legal scene. Therefore, the subject matters such as the

environment, nuclear weapons, disease and terrorism have become of global

concern, and are thus considered by international law parameters.332

As John

Alan Cohan explains, “Domestic law has lost its power, “sovereign” authority

and is now supplemented, corrected, and watched by international law.333

”

The main reasons of transformation of international law are the

proliferation of actors such as international organizations and expansion of

jurisdiction in international law leading to proliferation of international norms as

well.334

The increasing number of actors in international law and the expansion

of international law into many different areas resulted in a proliferation of norms

in International Law that also challenge or curtail the sovereignty of states.335

Consequently, international legal norms seem no longer to be created only by

state actors; rather, today we deal with a world of transnational law making,

cross-border activity and interaction, where state and non-state actors together

“disseminate alternative normative systems across a diffuse and constantly

shifting global landscape.336

” As a consequence of the increasing number of

330

Sands, Philippe, Turtles and torturers: The transformation of international law,NYUJ Int'l L.

& Pol., 33, 2001.p 537. 331

Sterio, Milena, The evolution of international law,2008. Available at:

http://works.bepress.com/milena_sterio/1 332

Cohan, John Alan, Sovereignty in a postsovereign world,Fla. J. Int'l L., 18, 2006. 910 333

ibid. P 936. 334


2005. P 488. 335

Sands, Philippe, Turtles and torturers: The transformation of international law,NYUJ Int'l L.

& Pol., 33, 2001.P548 (noting a great increase in the norms of international law),

Ratner, Steven R and Wippman, David,International law: Norms, actors, process: A problem-

oriented approach, Aspen Pub, 2010., p 29. 336


2005.,p 492.


138

international actors and norms, dispute settlement and the allocation of

responsibility become more complex. Today, international law, in its

transformed or globalized version, governs all sorts of relations, including those

implicating states, regional bodies, NGOs, trade organizations, commercial

actors, and private individuals.337

In an increasing number of cases, certain

sovereign powers of states have been delegated to international institutions.

The International Court of Justice (“ICJ”) dispute settlement system

remains a forum for state grievances only.338

The ICJ advisory opinion339

procedure, on the other hand, is open to (some) IGOs. In accordance with

Article 96.1 of the Charter of the United Nations, "the General Assembly or the

Security Council may request the International Court of Justice to give an

advisory opinion on any legal question”. Article 96.2 of the Charter provides

that "other organs of the United Nations and specialized agencies, which may at

any time be so authorized by the General Assembly, may also request advisory

opinions of the Court on legal questions arising within the scope of their

activities."340

337

Berman, Paul Schiff, Pluralist approach to international law, a,Yale J. Int'l L., 32, 2007. p

312. 338

Carter, B.E., Trimble, P.R. and Weiner, A.S.,International law, Aspen Publishers, 2007.P

10-12. 339

An ICJ advisory opinion is an opinion of the ICJ on a question of international law. Pursuant

to Article 96 of the Charter of the United Nations (UN Charter) and Article 65(1) of the Statute

of the International Court of Justice (ICJ Statute), only UN organs and UN specialised agencies

are eligible to request an advisory opinion from the ICJ. The UN General Assembly and the

Security Council may request an advisory opinion in respect of “any legal question” while other

UN organs and agencies (which have been authorised to do so by the General Assembly) may

request an advisory opinion on “legal questions arising within their scope of activities”. States as

such may not request an advisory. 340

Five UN organs and 16 agencies of the UN family (see list below) are authorized to request

advisory opinions. The UN General Assembly and the Security Council may request an advisory

opinion "on any legal question"; same as other UN organs and agencies "on legal questions

arising within the scope of their activities". Organizations entitled to request advisory opinions.

UN organs includes General Assembly, Security Council, Economic and Social Council,

Trusteeship Council, Interim Committee of the General Assembly. Agencies of the UN family

includes International Labour Organisation (ILO), Food and Agriculture Organization of the

United Nations (FAO), United Nations Educational, Scientific and Cultural Organization

(UNESCO), World Health Organization (WHO), International Bank for Reconstruction and

Development (IBRD), International Finance Corporation (IFC), International Development

Association (IDA), International Monetary Fund (IMF), International Civil Aviation

139

Individuals have been given the ability to complain about the violation of

their rights in an international arena. Currently, seven of the human rights treaty

bodies (The Human Rights Committee(CCPR), The Committee on the

Elimination of Racial Discrimination (CERD), The Committee against Torture

(CAT), The Committee on Elimination of Discrimination against Women

(CEDAW), The Committee on the Rights of Persons with Disabilities (CRPD),

The Committee on Enforced Disappearances (CED) and The Committee on

Economic, Social and Cultural Rights (CESCR) may, under certain conditions,

receive and consider individual complaints or communications from individuals.

For two other treaty bodies (the Committee on Migrant Workers (CMW), and

the Committee on the Rights of the Child (CRC)) the individual complaint

mechanisms have not yet entered into force.341

The World Trade Organisation (WTO) dispute settlement is only

between states, but state claims are often driven by company interests (and

lobbying efforts). State and non-state interests are tied in a global web of trade

relationships embodied in the organization’s structure and processes.342

The

International Centre for Settlement of Investment Disputes (ICSID) is an

autonomous international institution operating as part of the World Bank group

providing for arbitration between States and companies under the Convention on

the settlement of investment disputes between States and Nationals of Other

States.343

Organization (ICAO), International Telecommunication Union (ITU), World Meteorological

Organization (WMO), International Maritime Organization (IMO), World Intellectual Property

Organization (WIPO), International Fund for Agricultural Development (IFAD), United Nations

Industrial Development Organization (UNIDO), International Atomic Energy Agency (IAEA)

http://www.icj-cij.org/presscom/en/kos_faq_en.pdf.

http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2&p3=1. 341

http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx. 342

Many commentators and scholars have noted the increasing role of the WTO in developing a

global common law of international trade and human rights issues. See, e.g., Benedek, Wolfgang,

De Feyter, Koen and Marrella, Fabrizio,Economic globalisation and human rights, 1,

Cambridge University Press, 2007 , Bhala, Raj, Myth about stare decisis and international trade

law (part one of a trilogy), the,Am. U. Int'l L. Rev., 14, 1998. 343

https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHo

me&pageName=AboutICSID_Home.


140

In addition, sometimes NGOs play roles in disputes.344

For instance,

NGOs are allowed to access indirectly the WTO dispute settlement system. In

other words, while they have no direct access and no standing before

adjudicating bodies, the Appellate Body of the WTO has held that NGOs are

allowed to file amicus curiae345

submissions to both panels and the Appellate

Body of WTO. So, as amicus curiae, NGOs can participate at the discretion of

the Tribunal.346

Finally, the globalization process also requires from States that

they cooperate to protect their own national interest. The growth in actors,

norms and activities that apply across borders forces states to engage in

international action, even if their main concern remains the protection of the

interests and the rights of their own population.347

Cooperation is increasingly

necessary to achieve goals that are set domestically.

4.3.3.2 Humanization of international law

The idea of humanization of international law considers the

“international community” as a concept that may be affected by certain acts,

primarily by crimes and serious human rights violations. Certain crimes such as

genocide are deemed to influence all of us - not only the specifically targeted

group of people or only the victims. Therefore, any state may be eligible to

exercise jurisdiction on anyone who committed any of those acts regardless of

any connection between the alleged acts and the state asserting jurisdiction

particular, and in particular, when the connected states do not take proper action

344

For more information please see: Merrills, Jg,International dispute settlement, Cambridge

University Press, 2005 , Vicuña, Francisco Orrego,International dispute settlement in an

evolving global society: Constitutionalization, accessibility, privatization, Cambridge University

Press, 2004. 345

The term amicus curiae literally means “friend of the court”; in the U.S. Supreme Court, for

example, it denotes a person who is not a party to a case, but has a strong interest in the subject

matter, and may therefore ask the court for permission to file a brief. In the context of WTO

dispute settlement, the term amicus brief means letters and other information submitted by non –

parties in the course of dispute settlement proceedings. 346

Brandstetter, Patricia, The participation of ngos in the wto dispute settlement system,Seminar

aus Völkerrecht (International Economic Law) ao.Univ.Prof.MMag.Dr.August Reinisch, LL.M.

(NYU), Wintersemester 2003. p 9. 347

- Feyter, Koen De,Globalization and common responsibilities of states, Ashgate, March 2013.

141

to protect their own population.348

The exercise of this universal jurisdiction is

justified by perceiving the perpetrators as the enemies of all humankind. Of

course, there are vast discussions about the meaning of the concepts like

“international community”, “humanity” and “international crimes” and different

reasons may explain why certain crimes are international crimes.349

Crimes that are usually classified as international crimes include

genocide, crimes against humanity, war crimes, and the crime of aggression.

Both States and the individual perpetrators may incur responsibility for such

crimes. For example, in the Bosnia and Herzegovina v. Serbia and Montenegro

case , the ICJ held that, under the genocide convention, states are not only

under the obligation to provide for individual criminal responsibility in domestic

legislation, but they also have a direct obligation not to commit genocide

themselves.350

In addition, new developments in international law show that

international law no longer governs purely state relations, but also includes the

protection of non-state actors vis-à-vis different states351

. For example, the 1984

Torture Convention includes a provision about universal jurisdiction352

for a

possible prosecution of offenders.353

Article 5 of the Torture Convention offers

different basis of jurisdiction, including territorial jurisdiction and then it

specifies, “[e]ach State Party shall likewise take such measures as may be

348

Addis, Adeno, Imagining the international community: The constitutive dimension of

universal jurisdiction,Human Rights Quarterly, 31, 2009. 349

For more information please see : Addis, Adeno, Individualism, communitarianism, and the

rights of ethnic minorities,Notre Dame L. Rev., 67, 1991 , Barber, Benjamin, Constitutional

faith,For love of country: Debating the limits of patriotism, 1996 , Politis, Nicolas,Le problème

des limitations de la souveraineté et la théorie de l'abus des droits dans les rapports

internationaux, Hachette, 1926.quoted in Addis, Adeno, Imagining the international community:

The constitutive dimension of universal jurisdiction,Human Rights Quarterly, 31, 2009 , Berman,

Nathaniel, But the alternative is despair”: European nationalism and the modernist renewal

ofinternational law’(1993),Harvard Law Review, 106 . 350

See international court of justice, application of convention on the prevention of genocide .

Bosnia and Herzegovina v. Serbia and Montenegro case, Judgment ICJ report 2007, par 142-

201. 351

Ratner, Steven R and Wippman, David,International law: Norms, actors, process: A

problem-oriented approach, Aspen Pub, 2010. P17. 352

It should be mentioned that this subject is somewhat contested whether this is Universal

jurisdiction or not since it is still related to territory. 353

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10,1984, 1465 U.N.T.S. p 85.


142

necessary to establish its jurisdiction over such offences in cases where the

alleged offender is present in any territory under its jurisdiction…” In Belgium

v. Senegal, the ICJ found that “States parties to the Convention have a common

interest to ensure . . . that acts of torture are prevented and that, if they occur,

their authors do not enjoy impunity.” The Court defined these obligations as

“obligations erga omnes partes” in the sense that each State party has an interest

in compliance with them in any given case. This common interest entitles each

state party to the Convention to make a claim for the cessation of any breach by

another state party regardless of whether the applicant state has a special interest

in bringing the claim due to the nationality of the victims.354

The ICJ affirmed

the obligation to prosecute or extradite Hissène Habré under the Convention

against Torture.355

Moreover, human rights norms sometimes go beyond State prohibitions;

certain duties on states, such as the duty to either prosecute or extradite

offenders are also imposed. For example, the Torture Convention includes an

“extradite or prosecute” provision.356

The Genocide Convention requires

member states to “give effect to the provisions of the present Convention, and,

in particular, to provide effective penalties for persons guilty of genocide or any

of the other acts enumerated in article III.”357

The ICC Statute provides that if

the state fails to protect its own individuals, the international criminal court may

act within its jurisdiction, of course, limited to the list of international crimes.358

The UN Security Council is empowered to refer situations to the ICC. Article

13 of the ICC Statute says:

354

Questions Concerning the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment (Jul.

20, 2012)], available at http://www.icj-cij.org/docket/files/144/17064.pdf., pp 68, 69. 355

Buys, Cindy Galway, Introductory note to the international court of justice: Obligation to

prosecute or extradite (belg. V. Sen.),International Legal Materials, Asil Insights, 51, 2012. The

International Court of Justice Affirms the Obligation to Prosecute or Extradite HisseĚne Habreě

Under the Convention Against Torture'. 356

Provision in its article 7. Torture Convention. 357

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9 1948, 78

U.N.T.S. 2777. 358

Article 17, Statute of International Criminal Court, 17 July 1998.

143

“A situation in which one or more of such crimes appears to have been

committed is referred to the Prosecutor by the Security Council acting under

Chapter VII of the Charter of the United Nations”.

The Security Council thus referred the situation in Libya on 15 February

2011 to the prosecutor of the ICC. The Security Council argued that the Libyan

government was involved in gross and systematic attacks against the civilian

population that can constitute crimes against humanity. Libya was not a party to

the ICC Statute, but this is not a requirement in case of a referral by Security

Council.359

The concept of the responsibility to protect, which is also part of the

humanization process of international law, refers to a limited set of crimes.

According to the General Assembly resolution incorporating the 2005 World

Summit outcome, the responsibility to protect applies to genocide, war crimes,

ethnic cleansing and crimes against humanity.360

Each individual state has the

responsibility to protect its own population from those crimes and the

international community should encourage states or help them to exercise this

responsibility by using appropriate diplomatic and peaceful means. Use of force

can be authorized by the Security Council when the peaceful means fail, and

upon a determination that a state failed to protect its own people.361

For example

in resolution 1973 (2011), the UN Security Council affirmed the failure of the

Libyan authorities to protect their own population and allowed member states to

take all necessary measures to protect people under the threat of attack in Libya

etc.362

In sum, the powerful forces of globalization and humanization have

impacted on the traditional state-centric nature of international law. The

increasing number of actors and norms affect the process of law-making and the

theory of sources. Treaties and customary law remain important, but at the same

time soft law rules are produced in processes that include non-State actors, as is

explained in the following section.

359

Un Security Council resolution 1970 (26 February 2011), Para 4. 360

UN general assembly resolution 60/1 ( 24 October 2005) Para 138-9. 361

Feyter, Koen De,Globalization and common responsibilities of states, Ashgate, March 2013. 362

UN security council resolution 1973 (17 March 2011), Para 4.


144

4.4 The sources of international law

The section on sources discusses both hard and soft law and their

relevance in human rights law.

4.4.1 The formal sources of international law

The cornerstone of classic international law is the consent of states.

Enforcement also is usually dependent on the willingness of States to enforce.363

In cases of non-compliance, enforcement takes place by means of individual or

collective actions of other states.364

Consent can be achieved in different ways.

In treaty law, there are several ways by which states may express their consent

to be bound. They can do so through ratification, acceptance, approval, or

accession, depending on what the treaty stipulates and on the relevant national

practice. The obvious form is an explicit treaty, imposing obligations on the

states parties. Treaty law remains the main source of legal obligation in

contemporary international law.

Besides treaties, other documents and agreements serve as guidelines for

the behavior of states, although they may not be legally binding. Consent may

also be inferred from established and consistent practice of states in conducting

their relationships with each other.

The classic list of sources of international law can be found in Article

38(1) of the 1946 Statute of the International Court of Justice;

a) International conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

b) International customs, as evidence of a general practice accepted as law;

c) The general principles of law recognized by civilized nations;

363

Aust, Anthony,Handbook of international law, Cambridge University Press, London School

of Economics and Kendall Freeman Solicitors, 2005.p 46. 364

Stratton, Jane,Hot topics 69: Legal issues in plain language,international law, Legal

Information Access Centre (LIAC), State Library of New South Wales, 2009.

145

d) Judicial decisions and the teachings of the most highly qualified publicists

of the various nations, as subsidiary means for the determination of rules of law.

The Statute does not aim to create a hierarchy of sources, but judicial

decisions and doctrine are generally considered to be of a secondary nature.365

Treaties are important because there is no doubt that the obligations they

contain are binding on consenting States.366

Treaties are adopted by (a majority

of) the States involved in the drafting process. It has become increasingly

common for states to sign a convention first, subsequently submit it to their

legislature for approval and finally ratify it. Several years may pass from the

time of adoption until the treaty is ratified.367

A convention enters into force only

after the required minimum number of states has expressed consent to be bound

by it. For instance, the ICCPR stipulates that it enters into force three months

after the date of deposit of 35 instruments of ratification or accession (Article

49). The ICCPR was adopted by the UNGA on 16 December 1966; it was

opened for signature, ratification and accession on 19 December 1966, and

entered into force on 23 March 1976, i.e., almost ten years after its adoption.

More than forty major international conventions for the protection of

human rights have been adopted. They may bear different names – such as

‘covenant’, ‘convention’ or ‘protocol’ – but they are equally binding on the

State parties. The main particularity of human rights treaties is that they

prescribe State conduct vis-à-vis individuals within their jurisdiction.

Sometimes, treaties can become customary international law and thus

impact even on states that are not a party to the treaty. 368 A straightforward

example is the four 1949 Geneva Conventions in the area of international

365 Bassiouni, M Cherif, Functional approach to general principles of international law,

a,Mich. J. Int'l L., 11, 1989.p782. 366

Howeve, conventions also contain softer legal obligations that can be seen from the language

used, for instance words like “ a state shall to” or “a state should”. 367

http://www.humanrights.is/the-human-rights-

project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/theconceptsofhumanrig

htsanintroduction/alterationofhumanrightstreatyobligations/ 368

Eriksson, Maria,Defining rape: Emerging obligations for states under international law?, 38,

Martinus Nijhoff Publishers, 2011. P 27.


146

humanitarian law.369

The four Geneva Conventions of 1949 and Protocol I

contain a list of grave breaches. The Fourth Geneva Convention lists (GC 4 Art.

147) taking hostages, extensive destruction and appropriation of property when

it is not justified by military necessity and carried out unlawfully and wantonly,

unlawful deportation, transfer, or confinement as grave breaches.370

States who

are parties to these treaties must enact and enforce laws penalizing any of these

crimes. States are also required to search for persons who commit these crimes,

or forced others to commit them, and to bring them to trial regardless of their

nationalities and the place where the crimes took place (Art 146). In 1993, the

United Nations Security Council adopted a report by the Secretary-General and

a Commission of Experts, which concluded that the Geneva Conventions had

become one of the bodies of customary international law; therefore, also non-

State parties have to abide by the Conventions whenever they engage in armed

conflicts.371

In the Tadic judgment of the ICTY, the core content of the

Conventions was held to be of a customary nature even in internal armed

conflict.372

369

There are three additional protocols to the Geneva Convention, the Protection of Victims of

Non-International Armed Conflicts and the Adoption of an Additional Distinctive Emblem. 370

It means that according to this convention, not all violations are treated equally. It also,

contains some provisions related to General Protection of Populations against certain

consequences of war, how to treat the protected persons and provisions in relation to punishment

and legislation. It comes to end by mentioning some rules related to implementation of the

Convention. 371

See Statute of the International Criminal Tribunal for the former Yugoslavia Security Council

resolution 827 (1993), 25 May 1993. http://legal.un.org/avl/ha/icty/icty.html. 372

The Trial Chamber also found that the conferral of primacy of jurisdiction on the Tribunal

does not violate international law and that, in any event, the accused had no locus standi to raise

the issue of violation of State sovereignty. Addressing the various challenges to subject matter

jurisdiction, the Trial Chamber examined the arguments raised in respect of each of the Articles

of the Statute of the Tribunal in turn. In considering Article 2 of the Statute, the Trial Chamber

found that the element of internationality is not a jurisdictional criterion of the offences charged

and accordingly did not rule upon the nature of the armed conflict in the region nor on the

Prosecutor's alternative contention that the “grave breaches" provisions of the 1949 Geneva

Conventions apply as a result of certain agreements entered into by various parties to the conflict.

Similarly, the Trial Chamber held that the character of the conflict, whether international or

internal, does not affect the subject matter jurisdiction of the Tribunal under Article 3, finding

that the term "laws or customs of war" applies to both international and internal armed conflicts.

The Trial Chamber determined that the minimum standards of Common Article 3 of the Geneva

Conventions apply to the conflict in the former Yugoslavia, regardless of its character, and that

the prosecution of the accused for those offences does not violate the principle of nullum crimen

147

The European conventions and their contribution to international law

For the issue at hand and for the purpose of this research, the European

human rights treaties such as the European convention in human rights (ECHR)

and the case-law developed by its court are also very important. The European

Convention on Human Rights (ECHR) (formally the Convention for the

Protection of Human Rights and Fundamental Freedoms) is an international

treaty to protect human rights and fundamental freedoms in Europe. The

European Convention on Human Rights of November 4, 1950, and its

Protocols373

constitute the most significant contribution of the Council of

Europe374

to the development of international human rights law.375

Through the

adoption of the European Convention, fifteen of the rights declared in the

Universal Declaration of Human Rights of the United Nations of 1948 were

transformed into legal obligations between the Contracting Parties.376

The

Convention sets up a European Commission and a European Court of Human

Rights (ECtHR) to ensure the implementation of the convention. The ECtHR is

a significant institution because any person who claims a human rights violation

sine lege. Finally, the Trial Chamber found that the language of Article 5 of the Statute is clear

and unambiguous and thus, although the Trial Chamber considered that no nexus is required in

customary international law between crimes against humanity and war crimes or crimes against

peace or indeed between crimes against humanity and an armed conflict, there is, however, a

requirement for a nexus with an armed conflict, either international or internal, for the offence to

fall within the jurisdiction of the Tribunal. ICTY, Trial Chamber, Tadić, judgment of 10 Aug.

1995, CASE No. IT-94-1-T / DEFENDANT: Mr. Dusko Tadic. 373

The text of the Convention and Protocols, the more important decisions of the Commission

and the Court are published in the annual Yearbook of the Convention on Human Rights. See

also Robertson, Arthur Henry,Human rights in europe, Manchester University Press, 1963 ,

Weil, Gordon Lee,The european convention on human rights: Background, development and

prospects, 5, AW Sythoff, 1963. 374

The Council of Europe is an international organization promoting co-operation between all

countries of Europe in the areas of legal standards, human rights, democratic development, the

rule of law and cultural co-operation. It was founded in 1949, has 47 member states with some

800 million citizens, and is an entirely separate body from the European Union (EU), which has

28 member states. Unlike the EU, the Council of Europe cannot make binding laws. The two do

however share certain symbols such as the flag and the anthem. The best-known bodies of the

Council of Europe are the European Court of Human Rights, which enforces the European

Convention on Human Rights, and the European Pharmacopoeia Commission, which sets the

quality standards for pharmaceutical products in Europe. 375

Robertson, Arthur Henry,Human rights in europe, Manchester University Press, 1963. 376

Austria, Belgium, Cyprus, Denmark, Fed. Rep. of Germany, Greece, Iceland, Ireland, Italy,

Luxembourg, Netherlands, Norway, Sweden, Turkey and the United Kingdom.


148

can take a case to the Court (after domestic remedies are exhausted). Judgments

finding violations are binding on the States concerned and they are obliged to

execute them. State parties can also take cases against other state parties to the

Court, although this power is not often used. The Committee of Ministers of the

Council of Europe monitors the execution of judgments, particularly to ensure

payment of the amounts awarded by the Court to the applicants in compensation

for the damage they have sustained.

A multilayer relation exists between international law, European law and

domestic law that falls largely outside the scope of this research.377

Clearly, the

existence of an agreement between numerous European nations to submit to a

collective supra-national legal system contributes to the importance of human

rights as an issue of international concern,378

and to the recognition of

individuals as international actors. The European conventions and the case-law

of the Court clearly affect not only on the States parties, but also other States. As

Merrills notes in his book "when taken as a whole the jurisprudence of the Court

has set an inspiring example not only to those who may serve at Strasbourg in

the future, but also to those responsible for deciding human rights issues

elsewhere.”379

He continues:

“The fact that a State is a party to a human rights treaty means that

there is a legal yardstick against which its practice can be measured… If a

human rights treaty contains enforcement machinery the effect is even more

pronounced. When governments know that policies must be justified in an

international forum an additional element enters their decision- making. Thus,

with the State's obligations to the individual as a constant background to official

deliberations, the impact of a treaty such as the European Convention is likely

377

For more information about this multilayer relations please see, Forowicz, Magdalena,The

reception of international law in the european court of human rights, Oxford University Press,

2010. 378

Although some academics and international lawyers may disagree over the extent of

protection offered by the European courts, the fact that such machinery exists is itself a

remarkable achievement. 379

Merrills, Jg,The development of international law by the european court of human rights,

Manchester University Press, 1988.P 235.

149

to be out of all proportion to the number of cases in which conduct is actually

challenged. 380

”

With regard to domestic effect of European conventions and its court

Merrills believes that the Court's contribution to “changes in domestic law and

practice" provides the most significant evidence of its impact.381

P. van Dijk and

G.J.H. van Hoof, scholars from the Netherlands, who wrote a detailed study

about the theory and practice of the European convention on human rights, reach

a similar conclusion.382

On the other hand, the importance of the convention and its judgments

on global perceptions and opinions concerning human rights cannot be ignored.

As Merrills has elaborated in depth in his book, the decisions of the European

courts have particular consequences beyond its jurisdiction mostly because it is

considered as one of the most developed of such systems.383

In addition,

Theodor Meron referred to European courts noting that

“The decisions of such organs are frequently and increasingly invoked

outside the context of their constitutive instruments and cited as authoritative

statements of human rights law. Interpretations of human rights conventions by

quasi-judicial or supervisory bodies affects the internal and external behavior of

states. They shape the practice of states and may establish and reflect the

agreement of the parties regarding the interpretation of a treaty . . .

Cumulatively, the practice of judicial, quasi-judicial, and supervisory organs

has a significant role in generating customary rules.”384

International tribunals and the European Court of Human Rights may

also refer to each other in order to interpret rules. As Olivier de Frouville

explains, while in their early years ad hoc international criminal tribunals

380

ibid. Chapter 1, p 2. 381

ibid. p12. 382

For more information please see, Dijk, P Van and Hoof, Gjh Van,Theory and practice of the

european convention on human rights, Kluwer Law and Taxation Publishers (Deventer,

Netherlands and Boston), 1984. 383

Merrills, Jg,The development of international law by the european court of human rights,

Manchester University Press, 1988. pp ix, 18. 384

Meron, Theodor,Human rights and humanitarian norms as customary law, Clarendon Press

^ eOxford Oxford, 1989. P 100.


150

referred to the case law of the European Court of Human Rights (ECtHR), today

the ECtHR increasingly refers to the international criminal tribunals’ case law in

interpreting the European Convention of Human Rights as the European court

becomes more involved in dealing with international humanitarian law and

international criminal law issues.385

Although these examples regarding the interaction between the regional

and the global (ECHR, ECtHR and international law) are not exhaustive, they

show that how European conventions can assist in the development of

international law. They also demonstrate that in the process of transformation of

international law, the contribution of the ECHR and the ECtHR is to strengthen

the role of individuals in international law by giving them the opportunity to

access an international court and by providing a strong enforcement mechanism.

Customary international law is the second source of law making in

international law. Since treaties do not cover all areas and not all States are

parties to all conventions, customary international law fulfills a vital role.

Customary international law may come into existence through State practice or

originate in widely ratified international treaties.

There were many differing opinions about what rules have customary

law status. The Statute of ICJ acknowledges the existence of customary

international law in Article 38(1)(b), incorporated into the United Nations

Charter by Article 92 "The Court, whose function is to decide in accordance

with international law such disputes as are submitted to it, shall

apply...international custom, as evidence of a general practice accepted as

law.” Article 38(1)(b) of ICJ Statute defines customary international law in as

"evidence of a general practice accepted as law” This is generally determined

through two factors: the general practice of states and what states have accepted

as law.386

Therefore, custom comes from a general, continual and uniform

385

De Frouville, Olivier, The influence of the european court of human rights’ case law on

international criminal law of torture and inhuman or degrading treatment,Journal of

International Criminal Justice, 9, 2011. 386

Dinstein, Yoram,The conduct of hostilities under the law of international armed conflict,

Cambridge University Press, 2004. P5.

151

practice of states and such practice has to be required by the rule of law.387

In

the Continental Shelf case, the International Court of Justice held that, “It is of

course axiomatic that the material of customary international law is to be

looked for primarily in the actual practice and opinio juris of States388

.” The

basic rule as regards continuity and repetition was laid down in the Asylum case

in 1950.389

The ICJ declared that a customary rule must be “in accordance with

a constant and uniform usage practiced by the States in question.”390

The Court

emphasized its view that some degree of uniformity amongst state practices was

essential before a custom could come into existence in the Anglo-Norwegian

Fisheries case.391

In the North Sea Continental Shelf cases392

, which involved a

dispute between Germany on the one hand and Holland and Denmark on the

other over the delimitation of the continental shelf, the ICJ observed that state

practice, “including that of states whose interests are specially affected”, had to

be “both extensive and virtually uniform in the sense of the provision invoked”.

This was held to be indispensable to the formation of a new rule of customary

international law.393

However, the ICJ held in Nicaragua v. United States394

that

the elements of an international customary law would be opinio juris (belief that

an action was carried out by states due to a legal obligation) which is then

proven by existing state practices.395

It also asserted that practice does not have

to be perfect,

387

Roberts, Anthea Elizabeth, Traditional and modern approaches to customary international

law: A reconciliation,American Journal of International Law, 2001. p 757. 388

ICJ Reports, 1985, pp. 13, 29; 81 ILR, p. 239. See also the Advisory Opinion on the Legality

of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, pp. 226, 253; 110 ILR, p. 163. 389

- ICJ Reports, 1950, p. 266; 17 ILR, p. 280. 390

- ICJ Reports, 1950, pp. 276–7; 17 ILR, p. 284. 391

- ICJ Reports, 1951, pp. 116, 131 and 138; 18 ILR, p. 86. 392

- ICJ Reports, 1969, p. 3; 41 ILR, p. 29. 393

- ICJ Reports, 1969, p. 43; 41 ILR, p. 72. Note that the Court was dealing with the creation of

a custom on the basis of what had been purely a treaty rule. See Akehurst, Michael, Custom as a

source of international law,British Yearbook of International Law, 47, 1976. p. 21, See also the

Paquete Habana case, 175 US 677 (1900) and the Lotus case, PCIJ, Series A, No. 10, 1927, p.

18; 4 AD, p. 153. 394

ICJ Reports, 1986, p. 14; 76 ILR, p. 349. 395

Shaw, Malcolm N,International law, 6th, edition Cambridge University Press, Cambridge,

2008. pp. 72-93, For more information about customary international law please see: Joseph,

Sarah and Mcbeth, Adam,Research handbook on international human rights law, Edward Elgar

Publishing, 2010 , Schlütter, Birgit,Developments in customary international law: Theory and


152

“186. It is not to be expected that in the practice of States the application

of the rules in question should have been perfect, in the sense that States should

have refrained, with complete consistency, from the use of force or from

intervention in each other's interna1 affairs. The Court does not consider that,

for a rule to be established as customary, the corresponding practice must be in

absolutely rigorous conformity with the rule. In order to deduce the existence of

customary rules, the Court deems it sufficient that the conduct of States should,

in general, be consistent with such rules, and that instances of State conduct

inconsistent with a given rule should generally have been treated as breaches of

that rule, not as indications of the recognition of a new rule….”396

In addition, the customary international criminal law may be taken from

the provisions of certain conventional international criminal laws. For example,

the provisions of the 1949 Geneva conventions have been considered as an

integral part of the customary international law.397

The Human Rights Committee in its General Comment 24 (1994) has

listed the rights within the ICCPR which it believes represent customary

international law:

“Reservations that offend peremptory norms would not be compatible

with the object and purpose of the Covenant. Although treaties that are mere

exchanges of obligations between States allow them to reserve inter se

application of rules of general international law, it is otherwise in human rights

treaties, which are for the benefit of persons within their jurisdiction.

Accordingly, provisions in the Covenant that represent customary international

law (and a fortiori when they have the character of peremptory norms) may not

be the subject of reservations. Accordingly, [A] State may not reserve the right

to engage in slavery, to torture, to subject persons to cruel, inhuman or

degrading treatment or punishment, to arbitrarily deprive persons of their lives,

the practice of the international court of justice and the international ad hoc criminal tribunals

for rwanda and yugoslavia, 62, Brill, 2010 , Villiger, Mark Eugen,Customary international law

and treaties: A study of their interactions and interrelations, with special consideration of the

1969 vienna convention on the law of treaties, 7, BRILL, 1985. 396

ICJ Reports, 1986, para 186. 397

ICTY, Trial Chamber, Tadić, judgment of 10 Aug. 1995, par 98-117, ICJ, Nuclear Weapons

case, Advisory Opinion, 8 July 1996, pp. 257–258, 79 and 82.

153

to arbitrarily arrest and detain persons, to deny freedom of thought, conscience

and religion, to presume a person guilty unless he proves his innocence, to

execute pregnant women and children, to permit the advocacy of national,

racial or religious hatred, to deny to persons of marriageable age the right to

marry, or to deny to minorities the right to enjoy their own culture, profess their

own religion, or use their own language and [...] the right to a fair trial [...].398

The ICJ has also commented on the customary law nature of some

human rights related norms. It held that many rules of international

humanitarian law constitute “intransgressible principles of international

customary law”. In its advisory opinion on Nuclear Weapons, the Court stated

that the principle of distinction was one of the“cardinal principles” of

international humanitarian law and one of the “intransgressible principles of

international customary law.” 399

In addition, it observed that the principles

underlying the Genocide Convention are “recognized by civilized nations as

binding on States, even without any conventional obligation”, with the

Convention itself confirming and endorsing “the most elementary principles of

morality.” The Court thus recognized that genocide is supremely unlawful under

both conventional and customary law, considering international obligations erga

omnes.400

In its very first case, the Corfu Channel Case401

, the Court spoke of

398

Human Rights Committee, General Comment 24 (52), General comment on issues relating to

reservations made upon ratification or accession to the Covenant or the Optional Protocols

thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc.

CCPR/C/21/Rev.1/Add.6 (1994),

http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/69c55b086f72957ec12563ed004ecf7a?Open

document, par.8. 399

ICJ Reports 1996, Nuclear Weapons case, Advisory Opinion, p. 226, p. 257, para. 79. 400

Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In

legal terminology, erga omnes rights or obligations are owed toward all. For instance a property

right is an erga omnes entitlement, and therefore enforceable against anybody infringing that

right. An erga omnes right (a statutory right) can here be distinguished from a right based on

contract, which is only enforceable against the contracting party. In international law it has been

used as a legal term describing obligations owed by states towards the community of states as a

whole. An erga omnes obligation exists because of the universal and undeniable interest in the

perpetuation of critical rights (and the prevention of their breach). Consequently, any state has

the right to complain of a breach. Examples of erga omnes norms include piracy, genocide,

slavery, torture, and racial discrimination. The concept was recognized in the International Court

of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep

1970 3 at paragraph 33]: "… an essential distinction should be drawn between the obligations of

a State towards the international community as a whole, and those arising vis-à-vis another State


154

certain ‘general and well-recognized principles, namely: elementary

considerations of humanity, even more exacting in peace than in war.’402

In this

case, the ICJ held that the Geneva Conventions of 1949, in their common article

3, defined rules reflecting "elementary considerations of humanity" that are

applicable as customary international law.403

In view of these cases of ICJ, not

only the prohibitions of genocide, but also the rights and prohibitions contained

in treaties such as the 1949 Geneva Conventions are viewed as customary404

,

and have a higher status than ordinary international laws.405

As affirmed by the

International Court of Justice in 1970, certain obligations under international

law "are the concern of all States ... [and i]n view of the importance of the

rights involved, all States can be held to have a legal interest in their

protection.406

" They are, the Court declared, obligatio erga omnes (obligations

owing by and to all); and they include prohibitions of genocide and the

deprivation of basic rights of the human person. Therefore, war crime and

in the field of diplomatic protection. By their very nature, the former are the concern of all States.

In view of the importance of the rights involved, all States can be held to have a legal interest in

their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in

contemporary international law, from the outlawing of acts of aggression, and of genocide, as

also from the principles and rules concerning the basic rights of the human person, including

protection from slavery and racial discrimination. Some of the corresponding rights of protection

have entered into the body of general international law . . . others are conferred by international

instruments of a universal or quasi-universal character." 401

Corfu Channel Case, 1949 I.C.J. 4, 22 Apr. 1949. 402

Corfu Channel , United Kingdom v Albania, 1949, ICJ Rep 4, 22. 403

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,

112 (June 27). Of course, questions have been raised since, about whether the Court correctly

held that the rules set out in the common article 3 of the Geneva Conventions have the status of

customary international law for more information please see:

Abi-Saab, Rosemary,The" general principles" of humanitarian law according to the

international court of justice, Cambridge Univ Press, 1987 , Meron, Theodor,Human rights and

humanitarian norms as customary law, Clarendon Press ^ eOxford Oxford, 1989. 404

See, e.g., For a commentary, Meron, Theodor, Geneva conventions as customary law, the,Am.

J. Int'l L., 81, 1987. pp. 348-370, Abi-Saab, Rosemary,The" general principles" of humanitarian

law according to the international court of justice, Cambridge Univ Press, 1987. pp. 381-38,

Paust, Jordan J, Suing saddam: Private remedies for war crimes and hostage-taking,Va. J. Int'l

L., 31, 1990. see, e.g., Report of the Secretary-General Pursuant to Paragraph 2 of Security

Council Resolution 808, U.N. SCOR, 48th Sess., 1 35, U.N. Doc. S/25704 (1993), reprinted in

32 I.L.M. 1163, 1170 (1993), approved by S.C. Res. 827, U.N. Doc. S/Res/ 827 (1993),

reprinted in 32 I.L.M. 1203, 1204 (1993). 405

Paust, Jordan J, Complex nature, sources and evidences of customary human rights, the,Ga. J.

Int'l & Comp. L., 25, 1995. 406

Belgium v Spain, Second Phase, ICJ Rep 1970 3, Para 33.

155

violations of fundamental human rights are also included in this list as part of

customary international law.407

General principles of law are the third source of international law

identified by the ICJ’s statute. These principles essentially offer a mechanism to

deal with international issues that are not covered in treaties or customary

international law. As in any domestic system of law, sometimes judges are faced

with a situation not dealt with in parliamentary statute nor in judicial precedent.

In these situations, judges usually attempt to solve the problem by deducing

rules from already accepted rules or principles such as those emanating from

justice, equity or considerations of public policy. In international law, general

principles of law are referred to in order to avoid a non-liquet finding.408 These

general principles may derive from municipal law or directly from international

law. They have procedural or evidential value, and may sometimes deal with the

machinery litigation—e.g., the principle, established in Chorzow Factory (1927–

28), that the breach of an engagement involves an obligation to make reparation.

Accordingly, in the Chorzow Factory case, Poland was obliged to pay

compensation to Germany for the illegal expropriation of a factory.409 They may

be approached from different perspectives: from natural law 410 or from positive

law411 or from a mixture of both. 412

407

Paust, Jordan J, Complex nature, sources and evidences of customary human rights, the,Ga. J.

Int'l & Comp. L., 25, 1995.P 151. 408

See e.g. Stone, Julius, Non liquet and the function of law in the international community,Brit.

YB Int'l L., 35, 1959. p. 196, Pellet, Alain, Article 38,The Statute of the International Court of

Justice: a commentary. Oxford University Press, Oxford, 2006. p. 704, Thirlway, Hugh, The law

and procedure of the international court of justice 1960-1989: Part one,Brit. YB Int'l L., 60,

1989. p. 76, Weil, Prosper, Court cannot conclude definitively... Non liquet revisited, the,Colum.

J. Transnat'l L., 36, 1998. , p. 109, See also the North Sea Continental Shelf cases, ICJ Reports,

1969, p. 46; 41 ILR, p. 29, and the Nicaragua case, ICJ Reports, 1986, p. 135; 76 ILR, p. 349. 409

See the Chile–United States Commission decision with regard to the deaths of Letelier and

Moffitt: 31 ILM, 1982, pp. 1, 9; 88 ILR, p. 727. 410

See e.g. Lauterpacht, Hersch, Grotian tradition in international law, the,Brit. YB Int'l L., 23,

1946 , Lauterpacht, Hersch,Private law sources and analogies of international law, HeinOnline,

1970 , Waldock, H, General course on public international law,'recueil, 106 (1962), 1-250.,'

Human Rights in Contemporary International Law and the Significance of the European

Convention', British Institute of International and Comparative Law (London, 1965), (pp. 1-

23.Human Rights in Contemporary International Law and the Significance of the European

Convention', British Institute of International and Comparative Law (London, 1965) p. 54, Jenks,

Clarence Wilfred,The common law of mankind, Stevens, 1958. p. 169, and Judge Tanaka


156

Perhaps the most important general principle of international law is

“good faith”413. It governs the creation and performance of legal obligations and

is the foundation of treaty law. For example, this principle is incorporated in the

United Nations Charter, which provides in article 2(2) that “all Members, in

order to ensure to all of them the rights and benefits resulting from membership,

shall fulfill in good faith the obligations assumed by them in accordance with

the present Charter”. The same principle also appears in the Declaration on

Principles of International Law Concerning Friendly Relations and Co-operation

among States adopted by the General Assembly in resolution 2625 (XXV), 1970,

requiring that States fulfill in good faith their obligations resulting from

international law generally, including treaties. 414 The International Court of

Justice also confirmed in the Nuclear Tests cases that one of the basic principles

governing the creation and performance of legal obligations, whatever their

source, is the principle of good faith. However the Court also mentioned that

good faith as a concept is “not in itself a source of obligation where none would

otherwise exist”415. Shaw concludes: “The principle of good faith, therefore, is

a background principle informing and shaping the observance of existing rules

(dissenting), South-West Africa case, (Second Phase), ICJ Reports, 1966, pp. 6, 294–9; 37 ILR,

pp. 243, 455–9. 411

Tunkin, Grigoriĭ Ivanovich,Theory of international law, Harvard University Press, 1974.

Chapter 7. 412

Ian, Brownlie, Principles of public international law, (2003), p. 16, Virally, Michel, The

sources of international law,Manual of public international law, 116, 1968. 413

Oppenheim’s International Law notes that this is ‘of overriding importance’, p. 38. See Kolb,

Robert and Abi-Saab, Georges, La bonne foi en droit international public: Contribution à

l'étude des principes généraux de droit,2000 , Thirlway, Hugh, The law and procedure of the

international court of justice 1960-1989: Part one,Brit. YB Int'l L., 60, 1989 , Zoller, Elisabeth

and Bastid, M Suzanne,La bonne foi en droit international public, A. Pédone, 1977. (Part One)’

pp. 3, 7 ff., and Fitzmaurice, Gerald,The law and procedure of the international court of justice,

2, Grotius, 1986 , Thirlway, Hugh, The law and procedure of the international court of justice

1960–1989 supplement, 2009: Parts seven and eight,British Yearbook of International Law, 80,

2010. p. 609. 414

Case T-115/94, Opel Austria Gmbh v. Republic of Austria, 22 January 1997.

415 ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412. The Border and Transborder Armed

Actions case (Nicaragua v. Honduras), ICJ Reports, 1988, p. 105; 84 ILR, p. 218. See also Judge

Ajibolo’s Separate Opinion in the Libya/Chad case, ICJ Reports, 1994, pp. 6, 71–4; 100 ILR, pp.

1, 69–72, and the statement by the Inter-American Court of Human Rights in the Re-

introduction of the Death Penalty in Peru case, 16 Human Rights Law Journal, 1995, pp. 9, 13.

157

of international law and in addition constraining the manner in which those

rules may legitimately be exercised.”416

Another important general principle of international law is that of equity.

This principle permits a degree of flexibility in the application and enforcement

of international law. For example, the Law of the Sea treaty calls for the

delimitation based on equity of exclusive economic zones and continental

shelves between states with opposing or adjacent coasts. 417 The most famous

decision on this principle was that of Judge Hudson in the Diversion of Water

from the Meuse case in 1937 between Holland and Belgium. Hudson pointed

out that principles of equity have long been treated as part of international law

and applied by the courts. With regard to article 38 of the Statute, he mentioned,

“if not independently of that article, the Court has some freedom to consider

principles of equity as part of the international law which it must apply.”418

However, this principle is open to varied interpretation.419

Other sources are mentioned in Article 38 (1) of the ICJ’s statute

which recognizes judicial decisions and scholarly writings as subsidiary means

for the determination of the law. Both municipal and international judicial

decisions can provide new principles and rules. In municipal cases, international

legal rules can become clear through their consistent application by the courts of

a number of states. However, the international judicial decisions of bodies such

as the ICJ at The Hague, the UN International Tribunal for the Law of the Sea at

Hamburg (Germany), and international arbitral tribunals make a more direct

contribution to international law. While article 59 of the Statute of the

416 Shaw, M.N.,International law, Cambridge University Press, 2003. P 104.

417 See Akehurst, Michael, Equity and general principles of law,Int’l & Comp. LQ, 25, 1976 ,

Cheng, Bin, Justice and equity in international law’(1955),Current Legal Problems, 8, p. 185,

Lauterpacht, Elihu,Equity, evasion, equivocation and evolution in international law, 1977.E.

Lauterpacht, p. 33, and Lauterpacht, Elihu,Aspects of the administration of international justice,

Cambridge University Press, 1991.pp. 117–52; Jennings, Ry, Equity and equitable principles,42

Annuaire Suisse de Droit International, 27, 1986.p. 38; Lauterpacht, Hersch, Oppenheim’s

international law,Vol. II, Longman's, London (7th ed. 1952)(hereinafter Lauterpacht), 202, 1952.

p. 43.

418 PCIJ, Series A/B, No. 70, pp. 73, 77; 8 AD, pp. 444, 450.

419 See e.g. JudgeWeeramantry, the JanMayen (Denmark v. Norway) case, ICJ Reports, 1993,

pp. 38, 217; 99 ILR, pp. 395, 585. Cf. Judge Schwebel’s Separate Opinion, ICJ Reports, 1993, p.

118; 99 ILR, p. 486.


158

International Court of Justice states the decisions of the Court only have binding

force for the parties and in respect of the case under consideration, the Court

often refers to previous case-law in order to create certainty in the judgment

process.420

Regarding the other sources of international law, International law can

arise indirectly from other instruments, first and foremost from resolutions and

declarations of the General Assembly of the United Nations. Although UN

General Assembly resolutions, are only recommendatory 421 —except with

respect to certain organizational procedures—they can be extremely influential.

Resolutions may contribute to the establishment of new customary rules, both in

terms of state practice and in the process of establishing acceptance by states of

the practice “as law” (the opinio juris). In order to have this effect, a resolution

must contain generalizable provisions and attract substantial support from

countries with diverse ideological, cultural, and political perspectives. For

instance, the International Court of Justice in the Nicaragua case expressed that

“opinio juris may, though with all due caution, be deduced from, inter

alia, the attitude of the Parties [i.e. the US and Nicaragua] and the attitude of

States towards certain General Assembly resolutions, and particularly

resolution 2625 (XXV) entitled ‘Declaration on Principles of International Law

420

It occurred in Anglo-Norwegian Fisheries case (ICJ Reports, 1951, p. 116; 18 ILR, p. 86. See

further below, chapter 11, p. 558.), or the Reparation case (ICJ Reports, 1949, p. 174; 16 AD, p.

318. See further below, chapter 23, p. 1296), the Genocide case (ICJ Reports, 1951, p. 15; 18

ILR, p. 364), the Nottebohm case (ICJ Reports, 1955, p. 4; 22 ILR, p. 349), and the range of

cases concerning maritime delimitation. See e.g. Thirlway, Hugh, The law and procedure of the

international court of justice 1960–1989 supplement, 2009: Parts seven and eight,British

Yearbook of International Law, 80, 2010. p. 116, Akehurst, Michael. "The hierarchy of the

sources of international law." British Yearbook of International Law 47.1 (1976): 273-285. 421

See e.g. Asamoah, Obed Y,The legal significance of the declarations of the general assembly

of the united nations, Martinus Nijhoff, 1967. Johnson, Dhn, Effect of resolutions of the general

assembly of the united nations, the,Brit. YB Int'l L., 32, 1955. p. 97, Castaneda, Jorge and

Amoia, Alba,Legal effects of united nations resolutions, Columbia University Press New York,

1969 , Falk, Richard, On the quasi-legislative competence of the general assembly"(1966),AJIL,

60, p 782, Cassese, Antonio,International law in a divided world, Clarendon Press 1992. pp.

192–5, Virally, Michel, La valeur juridique des recommandations des organisations

internationales,Annuaire français de droit international, 2, 1956. p. 69, Sloan, F Blaine, Binding

force of a recommendation of the general assembly of the united nations, the,Brit. YB Int'l L., 25,

1948. p. 1, Sloan, Blaine, General assembly resolutions revisited’(1987),BYIL, 58, p 39.

159

concerning Friendly Relations and Co-operation among States in accordance

with the Charter of the United Nations.”422

Other examples of such resolutions include the Declaration on the

Granting of Independence to Colonial Countries and Peoples (1960)423

, the

Declaration on the Legal Principles Governing Activities of States in the

Exploration and Use of Outer Space (1963)424

, and the Declaration on Principles

of International Law Concerning Friendly Relations and Co-operation Among

States (1970).425

Therefore, general assembly resolutions or recommendations

can be used as evidence of customary law.426

International organizations now

participate alongside states in creating customary norms. Their acts may be a

part of developing practice and constitute evidence of opinio Juris. 427

Additionally, the Statutes of the ICTY and ICTR are also acts of an international

organization as they were established by UN Security Council resolutions.

Consequently, the case law of the ad hoc tribunals can be seen as practice in

customary international law.428

The International Criminal Tribunal for Rwanda (ICTR) is an

international court established on 8 November 1994 by the United Nations

Security Council in Resolution 955 in order to judge individuals responsible for

the Rwandan Genocide and other serious violations of international law in

Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31

December 1994.429

The tribunal has jurisdiction over genocide, crimes against

humanity and war crimes, which are defined as violations of Common Article

422

ICJ Reports, 1986, pp. 14, 99–100; 76 ILR, pp 349, 433–4. 423

Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)

(UNGA resolution 1514 (XV)). 424

Declaration on the Legal Principles Governing Activities of States in the Exploration and Use

of Outer Space (1963) (General Assembly resolution 1962. 425

Declaration on Principles of International Law Concerning Friendly Relations and Co-

operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970. 426

For more information please see: Katz, A., Dugard, J., Du Plessis, M. and Pronto,

A.,International law: A south african perspective, JUTA & Company Limited, 2013. P 30. 427

Gallant, Kenneth, The principle of legality in international and comparative criminal

law,Cambridge University Press, 2009. p268- 306.

428 Obviously judgments of the ad hoc tribunals are binding for the individual concerned. Ibid.,

p.268- 348. Bantekas, Ilias, Reflections on some sources and methods of international criminal

and humanitarian law,International Criminal Law Review, 6, 2006. p 130. 429

United Nations Security Council Resolution 955 S-RES-955(1994) on 8 November 1994 .


160

Three and Additional Protocol II of the Geneva Conventions (dealing with war

crimes committed during internal conflicts). The maximum sentence it can

impose is life imprisonment.

The International Criminal Tribunal for the former Yugoslavia

(ICTY) is a body of the United Nations established to prosecute serious crimes

committed during the wars in the former Yugoslavia. The Court was established

by Resolution 827 of the United Nations Security Council, which was passed on

25 May 1993. It has jurisdiction over four categories of crime committed on the

territory of the former Yugoslavia since 1991430

: Grave breaches of the Geneva

Conventions, violations of the laws or customs of war, genocide, and crime

against humanity. As same as ICTR, the maximum sentence can be issued is life

imprisonment.

The international criminal legal framework has developed through the

work of the ad hoc tribunals and the International Criminal Court. The Rome

Statute of the International Criminal Court was adopted at a diplomatic

conference on 17 July 1998. The Statute provides the establishment of a

permanent International Criminal Court to investigate and prosecute people

accused of genocide, crimes against humanity, war crimes and the crime of

aggression.431

The Rome Statute entered into force on 1 July 2002 ; the ICC can

only deal with crimes committed after that date.432

Regarding the jurisdiction of

the court, the Rome Statute of the ICC used both international humanitarian law

and international human rights law. For instance, War crimes are based on the

1949 Geneva conventions, while the prohibition of slavery and torture (included

in the Statute as crimes against humanity) originate from international human

rights treaties. Regarding the genocide, the Statute incorporates the definition of

430

http://www.icty.org/x/file/Legal%20Library/Statute/statute_re808_1993_en.pdf. 431

On 11 June 2010, the Review Conference of Rome Statute (held in Kampala, Uganda

between 31 May and 11 June 2010) adopted by consensus amendments to the Rome Statute

which include a definition of the crime of aggression and a regime establishing how the Court

will exercise its jurisdiction over this crime. The conditions for entry into force decided upon in

Kampala provide that the Court will not be able to exercise its jurisdiction over the crime until

after 1 January 2017 when a decision is to make by States Parties to activate the jurisdiction. 432

Article 11 of the Rome Statute.

161

genocide in the Genocide Convention.433

The court can generally exercise

jurisdiction only in cases where the accused is a national of a state party, the

alleged crime took place on the territory of a state party, or a situation is referred

to the court by the United Nations Security Council.434

It can exercise its

jurisdiction only when national courts are unwilling or unable to investigate or

prosecute such crimes.435

Primary responsibility to investigate and punish crimes

is therefore left to individual states.436

The Rome Statute provides that all persons are presumed innocent until

proven guilty beyond reasonable doubt, and establishes certain rights of the

accused and persons during investigations. (Article 66, 67). Moreover, the

Statute of the International Criminal Court and its Rules of Procedure and

Evidence grant a series of rights to victims. According to these rules, victims

have the possibility under the Statute to present their views and observations

before the Court. The Rome Statute contains provisions, which enable victims to

participate in all stages of the proceedings before the Court. (articles 43,68)437

Article 79 of the Rome Statute establishes a Trust Fund to make financial and

other forms of reparations to victims and their families and victimized

communities.

433

Definition of the crime of aggression by the Review Conference of Rome Statute (held in

Kampala: Article 8 bis adopted in Kampala defines the individual crime of aggression as the

planning, preparation, initiation or execution by a person in a leadership position of an act of

aggression. Importantly, it contains the threshold requirement that the act of aggression must

constitute a manifest violation of the Charter of the United Nations. An act of aggression is

defined as the use of armed force by one State against another State without the justification of

self-defense or authorization by the Security Council. The definition of the act of aggression, as

well as the actions qualifying as acts of aggression contained in the amendments (for example

invasion by armed forces, bombardment and blockade), are influenced by the UN General

Assembly Resolution 3314 (XXIX) of 14 December 1974. The threshold and formulation of this

definition, draws heavily upon the pre-existing language and general provisions in the Rome

Statute and the UN Charter, and reflects a compromise made by many States and in the lead up

to the Review Conference. 434

Articles 12 & 13 of the Rome Statute. 435

Articles 17 & 20 of the Rome Statute. 436

International Criminal Court. Office of the Prosecutor. Accessed 21 July 2007.

http://web.archive.org/web/20080119102802/http://www.icc-cpi.int/organs/otp.html. 437

http://web.archive.org/web/20070606204922/http://www.icc-

cpi.int/victimsissues/witnessprotection.html.


162

Unilateral actions by a state are another source of international law when

the State publicly announces its intention to be bound by an obligation. An

example was France’s decision to stop atmospheric nuclear testing during its

litigation at the ICJ with Australia and New Zealand (1974) concerning the

legality of such testing.438

Unilateral statements may also constitute evidence of

a State’s views on a particular issue.

Even when an instrument or document does not entail a legal obligation,

it may be influential within the international community.439

The Helsinki

Accords (1975), which aimed at reducing tensions between the Soviet Union

and the United States during the Cold War, were explicitly non- binding but had

immense political effects. In certain areas, including environmental law,

economic law and human rights law, a range of recommendations, guidelines,

codes of practice, and standards may produce what is termed “soft law”— rules

that are not legally binding, but may nevertheless strongly influence the

behaviour of addressees.

4.4.2 The concepts of hard law and soft law

In the field of international law, “Hard law” refers to binding legal

instruments that create rights and duties for States and other international actors.

These instruments result in legally enforceable commitments for countries

(states) and other international subjects.440

For instance, under articles 24 and 25

of the UN Charter, UN Security council is able to adopt resolutions binding on

all member states of the organization. This source has not been mentioned in

38(1) but according to 103 UN Charter prevailing over other Member State

obligations (even those flowing from treaties). From an international relations

perspective, the adoption of hard law offers advantages and disadvantages.

International actors may benefit from reducing the cost of transactions,

438

Nuclear Tests cases, ICJ Reports, 1974, pp. 253, 267; 57 ILR, pp. 398, 412. See also the

Nicaragua case, ICJ Reports, 1986, pp. 14, 132; 76 ILR, pp. 349, 466, and the Burkina Faso v.

Mali case, ICJ Reports, 1986, pp. 554, 573–4; 80 ILR, pp. 459, 477–8. 439

See e.g. the Report of the International Law Commission, A/57/10, 2002, p 215.

440 For an extensive discussion of these dimensions see Abbott, Kenneth W and Snidal,

Duncan, Hard and soft law in international governance,International organization, 54, 2000.

163

supporting the reliability of their commitment and access to dispute resolution.

Hard law restricts sovereignty and limits the actors’ behavior.441

On the other hand, the term “soft law” refers to quasi-legal instruments

that do not have any legally binding force, or its binding force is not as strong as

hard law. In the context of international law, the term "soft law" encompasses

resolutions and declarations of the UN General Assembly, statements,

principles, codes of conduct, codes of practice etc.442

In international law, the notion of "soft law" is somewhat contested.

Some writers do not accept its existence or impact and oppose it from different

perspectives. Some realists emphasize the absence of an independent judiciary

and enforcement powers in international law and thus conclude that all

international law is soft.443

Others argue that accepting soft law may challenge

the stability of international law: Weil asserts that the increasing use of soft law

“might destabilize the whole international normative system and turn it into an

instrument that can no longer serve its purpose.”444

However, other international

practitioners argue that although soft law is considered to be non-binding, its

long-term effect may be to create new obligations. From this perspective, soft

law is a step in a process of creating hard law. Principles in declarations or

recommendations that already have been accepted through soft law instruments

can later be solidified in a treaty, or they may have direct effect on the practice

of states because they are referred to by the general public, the media, academic

conferences, on the internet etc. As Szasz explains, “declarations may catalyse

the creation of customary law by expressing in normative terms certain

441

ibid. p 422. 442

There is a vast body of literature on international soft law that evaluating all of them is out of

the scope of this research, however, please see especially: Bothe, Michael, Legal and non-legal

norms–a meaningful distinction in international relations?,Netherlands Yearbook of

International Law, 11, 1980 , Erades, Lambertus,Essays on international and comparative law:

In honour of judge erades, Brill Archive, 1983 , Gold, Joseph, Strengthening the soft

international law of exchange arrangements,Am. J. Int'l L., 77, 1983 , Gruchalla-Wesierski,

Tadeusz, Framework for understanding soft law, a,McGill LJ, 30, 1984 , Seidl-Hohenveldern,

Ignaz,International economic" soft law", Martinus Nijhoff, 1979. 443

Downs, George W, Rocke, David M and Barsoom, Peter N, Is the good news about

compliance good news about cooperation?,International organization, 50, 1996. 444

Weil, Prosper, Towards relative normativity in international law,Am. J. Int'l L., 77, 1983. P

423.


164

principles whose general acceptance is already in the air (…) and thereby

making it easier and more likely for states to conform their conduct to them.445

"

The adoption of soft law instruments may be preferred by States when

they are reluctant to ratify or sign too many international commitments. Hartmut

Hillgenberg argues that soft law can be used as an independent tool to regulate

states’ behavior in cases where a treaty is not an option.446

Sometimes

international actors intentionally choose softer process of obligation as superior

institutional arrangements particularly when it is not easy for parties to make

major commitments.447

Soft law has been very important in the field of

international environmental law where States have been reluctant to commit to

many environmental initiatives.448

The Rio Declaration on the environment and

development of 1992 contains a number of principles and duties of states in this

field, that were later successfully transformed into hard law

In addition, when soft law instruments deal with sensitive issues such as

human rights, they may have faster and more direct influence on the domestic

practice of states that refuse to ratify treaties. Soft law human rights instruments

may provide direction to States that are not ready to accept international

obligations and the risk of sanctions.449

Soft law gradually allows countries to

become familiar with accepted norms at international level.450

As Roberto

Andorno argues “This gradual procedure leaves more room for discussion and

achieving consensus on issues that are particularly complex or sensitive, or

exposed to change.”451

The Helsinki Final Act of the conference on Security and

445

Szasz, Paul C,International norm-making, United Nations University, 1992. p 41-70. 446

Hillgenberg, Hartmut, A fresh look at soft law,European journal of international law, 10, 1999.

Available at: http://ejil.oxfordjournals.org/cgi/reprint/10/3/499. 447

For more information please see: Lipson, Charles, Why are some international agreements

informal?,International organization, Cambridge University Press, 45, 1991. 448

Birnie Patricia, W and Boyle, Alan E,International law and the environment, Oxford Univ.

Press, 1992. p 26. 449

Guzman, Andrew T, The design of international agreements,European journal of international

law, 16, 2005. p592. 450

Lenoir, Noëlle and Mathieu, Bertrand,Les normes internationales de la bioéthique, Presses

universitaires de France, 1998.p 47. 451

Andorno, Roberto, The invaluable role of soft law in the development of universal norms in

bioethics, Ein Beitrag zum Workshop “Die Umsetzung bioethischer Prinzipien im

internationalen Vergleich, (2007).Ein Beitrag zum Workshop “Die Umsetzung bioethischer

Prinzipien im internationalen Vergleich Available at: http://www.unesco.de/1507.html

165

Co-operation in Europe of 1975 thus had an intense effect on the promotion of

human rights in the Eastern Europe.452

It is worth recalling that the Universal

Declaration of Human Rights of 1948 was adopted in soft law form, in order to

avoid the risk of non-ratification by countries.453

The UDHR created a platform

for international treaties that nevertheless remained subject to reservations.454

Particularly on the issue of human rights soft law operates indirectly by guiding

State behaviour. With the building of State practice and the passing of time, a

process of transformation of the soft law standards into hard law occurs.

452

1992, 31 ILM 874. 453

Glendon, Mary Ann,A world made new: Eleanor roosevelt and the universal declaration of

human rights, Random House LLC, 2001., p71. 454

Boyle, Alan E, Some reflections on the relationship of treaties and soft

law’(1999),International and Comparative Law Quarterly, 48, pp 901-913.

Chapter 5: Rape in international law

166

5 Chapter 5: Rape in international law


5.1 Introduction

After inspecting the difficulties that women victims of rape face in

Islamic law and in the Iranian legal system, this chapter turns to how

international law deals with rape and the protection of victims, particularly in

terms of compensation and evidence. The definition of rape in international law

is analyzed. This is followed by a critical discussion of the right to

compensation and of the right to provide evidence.

It should be made clear from the outset that international law does not

(yet) deal with rape as an independent crime. In international law, rape is not

considered as an autonomous concept but as an element of another category of

crimes such as torture, war crime, crime against humanity etc. In other words,

rape is addressed in international law and by international tribunals as an

167

element in the assessment of a broader crime. (With the exception of the

Convention on preventing and combating violence against women and domestic

violence (Istanbul convention), see below.) Consequently, this chapter is not

limited to a particular branch of international law, and goes beyond hard law.

Rules protecting victims of rape can be found in hard and soft law, and in

various branches of international and regional law such as human rights law,

international criminal law and international humanitarian law (IHL).

Important soft law sources include particularly the reports of

monitoring bodies of the United Nations such as the reports of the Special

Rapporteur on violence against women. The United Nations Commission on

Human Rights in resolution 1994/45 decided to appoint a Special Rapporteur on

Violence against Women, including its Causes and Consequences. Since March

2006, the Special Rapporteur reports to the Human Rights Council, as per

Human Rights Council’s decision 1/102. The Special Rapporteur’s mandate is

based, in part, on article 4 of the UN Declaration on the Elimination of Violence

against Women, which stipulates that "States should exercise due diligence to

prevent, investigate and, in accordance with national legislation, punish acts of

violence against women, whether those acts are perpetrated by the State or by

private persons". The Special Rapporteur has undertaken and reported on a

number of country visits, including in Islamic countries, such as Saudi Arabia

(January 2008), Algeria (January 2007), Iran (February 2005), and the Darfur

region of the Sudan (2005).

The main instrument of relevance at the European level is the EU

Council Framework Decision of 15 March 2001 on the standing of victims in

criminal proceedings455

, which has recently revised in the form of a directive.456

The directive is designed to afford victims the best legal protection and defence

of their interests, irrespective of the Member State in which they find

themselves. The directive also contains provisions on affording victims

assistance before and after criminal proceedings, so as to alleviate the effects of

the crime. To that end, the Member States agreed to align their legislation on

criminal proceedings so as to guarantee to victims: The right to be heard in the

455

Official Journal L 82 of 22.03.2001. 456

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF.


168

proceedings and the right to furnish evidence; Access from the outset to

information of relevance for the protection of their interests; Access to

appropriate interpreting and communication facilities; The opportunity to

participate in the proceedings as a victim and to have access to legal advice and,

where warranted, legal aid free of charge; The right to have legal costs refunded;

A suitable level of protection for crime victims and their families, particularly as

regards their safety and protection of their privacy; The right to compensation;

The possibility for victims resident in another Member State to participate

properly in the criminal proceedings (teleconferencing or video-conferencing,

etc.). Respect for individuals' dignity is to be safeguarded throughout the

proceedings and Member States are to make special arrangements to cater for

certain vulnerable categories of victim. Member States are also to ensure that

staff dealing with victims receives appropriate training. In addition, the Council

of Europe adopted a European Convention on the Compensation of Victims of

Violent Crime (1983). This was followed in 1985 by a Recommendation issued

by the Council of Ministers on the position of victims within the framework of

criminal law and procedure, calling for states to ensure that the needs of victims

are taken into account in the national criminal justice process. The

recommendation requires that victims should be kept informed at all stages of

proceedings, that they should have a right to challenge a decision not to

prosecute or a right to bring private proceedings, and that they should be able to

obtain compensation within the criminal justice process.

Moreover, in 2011 the Council of Europe adopted the Convention on

preventing and combating violence against women and domestic violence

(Istanbul convention).457

This Convention adopts an innovative approach toward

protection of individual (women) during peacetime as it says, “This convention

shall apply in times of peace and in situations of armed conflict.”

Although adopted at the regional level, the convention may have a global

impact in considering rape as an autonomous crime and in providing a separate

definition of this crime in article 36 (see below). This convention not only

requires state parties to adopt legislative measures, but also sets up a

comprehensive framework, policies and measures for the protection of and

457

It enters into force in 1/8/2014.

169

assistance to all victims of violence against women and domestic violence at

procedural level. It asks Parties to take the necessary legislative and other

measures to exercise due diligence to prevent, investigate, punish and provide

reparation for acts of violence covered by the scope of this Convention that are

perpetrated by non-State actors.458

5.2 The Definition of Rape in International Law

A large number of documents in the fields of international humanitarian

law, international human rights law and international criminal law prohibit rape,

but there is no specific and single definition of this crime that these documents

put forth.

The definition of violence against women in general is based on the UN

Declaration459

on the Elimination of Violence against Women: "the term

'violence against women' means any act of gender-based violence that results in,

or is likely to result in, physical, sexual or psychological harm or suffering to

women, including threats of such acts, coercion or arbitrary deprivation of

liberty, whether occurring in public or in private life". “Rape” as such has not

been defined in this declaration.

The Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW) does not explicitly mention sexual violence and rape.

However, CEDAW defines discrimination as:

Any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition, enjoyment

or exercise by women, irrespective of their marital status, on a basis of equality

of men and women, of human rights and fundamental freedoms in the political,

economic, social, cultural, civil or any other field. (Article 1).

458

http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm. 459

Declarations are generally non-binding. That is, the state does not have a legal obligation to

uphold the standards or rights outlined in a declaration. Conventions or covenants are legally

binding documents. States have an obligation to uphold the rights contained in a convention to

which they are a signatory, with the exception of any reservations made to the convention.


170

As Evatt argued, discrimination is referred to as any distinction,

exclusion or restriction. Actions constituting discrimination against women not

explicitly mentioned in CEDAW are covered by the Optional Protocol to the

Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW) which has been interpreted to include violence against women. For

instance, several cases heard by the CEDAW committee have related to violence

against women (such as the Ciudad Juárez case, UN CEDAW, 2005460

), and

states have to prepare information regarding their efforts to prevent violence

against women in their reports to the CEDAW committee. 461 In addition,

violence against women is explicitly addressed in the CEDAW committee's

general recommendation number 19 (UN CEDAW, 1992), noting that "gender-

based violence may breach specific provisions of the Convention, regardless of

whether those provisions expressly mention violence" (Para 6).462

In addition, violence against women and sexual violence were

incorporated into non-binding declarations, such as the Vienna (1993)463

and

Beijing (1995)464

Declarations.465 It is within these declarations that sexual and

physical violence have been firmly and explicitly located as human rights

violations. What constitutes sexual violence is defined broadly within the

Beijing Declaration and includes, but is not limited to:

460

Ensalaco, Mark, Murder in ciudad juárez a parable of women’s struggle for human

rights,Violence against women, 12, 2006. 461

Evatt, Elizabeth, Women and human rights,Monash UL Rev., 28, 2002.

The covenants on civil and political rights and economic and social rights are generally

considered to be "mainstream" rights bodies, as they are addressing "universal" rights as

opposed to "women's" rights only. 462

A/47/38, 1992, Para 6. The CEDAW committee comprises 23 experts on gender and

women's issues selected from around the world. 463

Vienna Declaration and Programme of Action Adopted by the World Conference on Human

Rights in Vienna on 25 June 1993 available at

http://www.ohchr.org/en/professionalinterest/pages/vienna.aspx. 464

Fourth World Conference on Women Beijing Declaration, in Beijing in September 1995,

available at http://www.un.org/womenwatch/daw/beijing/platform/declar.htm. 465

Friedman, Elisabeth Jay, Gendering the agenda: The impact of the transnational women's

rights movement at the un conferences of the 1990s, Women's studies international forum, vol.

26, (2003), pp. 313-331.Women's studies international forum , Kelly, Liz, Inside outsiders:

Mainstreaming violence against women into human rights discourse and practice,International

Feminist Journal of Politics, 7, 2005.

171

violence occurring in the family and within the general community;

sexual abuse of female children;

marital rape;

rape;

sexual abuse;

sexual harassment and intimidation; and

sexual violence perpetrated or condoned by the state.466

Importantly, the Beijing Declaration also deals with causes of violence

against women and mentions that sexual (and other) violence against women

occurs as a result of social values, cultural beliefs and unequal power relations

(sec. 117–118). Violence against women forms "one of the crucial social

mechanisms by which women are forced into a subordinate position compared

with men" (sec. 117). Involvement of the state is also recognized as contributing

to the cycle of violence experienced by many women, as "there is often a failure

to protect victims or punish perpetrators.” (sec. 117)

Therefore, within the Beijing and Vienna Declarations sexual violence

has been recognized as systematic violence that is rooted in power and gender

relations rather than being an individual anomaly, in keeping with feminist

conceptions of sexual and other forms of gendered violence.467

General

recommendation No. 21 by the Committee on the Elimination of Discrimination

against Women builds on the Declarations when it recognizes the “importance

of culture and tradition in shaping the thinking and behavior of men and women

and the significant part they play in restricting the exercise of basic rights by

466

http://www.un.org/womenwatch/daw/beijing/platform/declar.htm. 467

O'hare, Ursula A, Realizing human rights for women,Human Rights Quarterly, 21, 1999. pp.

374–375.


172

women.”468

These soft law instruments all contribute to the gradual

establishment of international rules for the protection of women.

International humanitarian law prohibits rape in various treaties, such as

the Geneva Conventions (e.g. article 27 of the Fourth Geneva Convention), the

Hague Convention of July 1899 (Article I of the Annex to the II), and the Hague

Convention of 1907(Article I of the IV) and in The Rome Statute (article 7), but

none of these instruments provide a definition.

At European level, the Istanbul Convention on preventing and combating

violence against women and domestic violence condemns all forms of violence

and discrimination against women including domestic violence, sexual

harassment, rape, forced marriage, crimes committed in the name of so-called

“honour” and genital mutilation, which constitute a serious violation of the

human rights of women and girls and a major obstacle to the achievement of

equality between women and men.469

The Istanbul convention is very significant

in this sense as it provides a detailed definition of rape. Article 36 criminalizes

different forms of sexual violence, including rape. State parties are required to

criminalize the following intentional conducts: “a: engaging in non-consensual

vaginal, anal or oral penetration of a sexual nature of the body of another

person with any bodily part or object; b: engaging in other non-consensual acts

of a sexual nature with a person; c: causing another person to engage in non-

consensual acts of a sexual nature with a third person.” In addition, the

convention specifically recognizes marital rape by emphasizing, “Parties shall

take the necessary legislative or other measures to ensure that the provisions of

paragraph 1 also apply to acts committed against former or current spouses or

partners as recognised by internal law.”

Ad hoc tribunals adjudicating international criminal law have used

various definitions of rape in their judgments. The lack of consistency relates in

particular to the relative weight to be attributed to ‘force’ and ‘non-consent’ as

468

A/49/38, CEDAW General Recommendation No. 21: Equality in Marriage and Family

Relations, Adopted at the Thirteenth Session of the Committee on the Elimination of

Discrimination against Women 1994, Para 3, available at:

http://www.refworld.org/docid/48abd52c0.html. 469

http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm.

173

elements of the crime, and to whether the actus reus of rape includes a wider

range of acts than intercourse.

The Akayesu judgment by the ICTR in 1998470

was the first to offer a

definition of rape, although regional human rights courts had already discussed

rape as a human rights violation earlier. Afterwards, other tribunals and human

rights courts revisited the precedent set in Akayesu, although sometimes with

different results, as discussed immediately below.

The International Criminal Tribunal for the former Yugoslavia (ICTY)

and the International Criminal Tribunal for Rwanda (ICTR) have recognized

rape and other forms of sexual violence as serious offences. The Akayesu

judgment of the ICTR defined rape in the context of genocide: The Tribunal

considered “sexual violence, which includes rape, as any act of a sexual nature

which is committed on a person under circumstances which are coercive. Sexual

violence is not limited to physical invasion of the human body and may include

acts that do not involve penetration or even physical contact….”471

On December 1998, an ICTY Trial Chamber, in the Furundzija

Judgment, convicted a Special Forces commander of rape and torture as war

crimes under Common Article 3 of the Geneva Convention, as recognized under

Article 3 of the ICTY Statute. The trial chamber of the ICTY held that the actus

reus element of rape as “(i) the sexual penetration, however slight: of the vagina

or anus of the victim by the penis of the perpetrator or any other object used by

the perpetrator; or of the mouth of the victim by the penis of the

perpetrator; ….”472

In the Kunarac case of February 2001, the Trial Chamber of the ICTY

sentenced three accused to prison terms for rape as a crime against humanity.

The actus reus of rape developed by the ICTY, described rape as a physical

470

Eriksson, Maria,Defining rape: Emerging obligations for states under international law?, 38,

Martinus Nijhoff Publishers, 2011.P 571. 471

Prosecutor v. Akayesu, ICTR-96-4-T, September 1998, Para 688

http://69.94.11.53/ENGLISH/cases/Akayesu/index.htm. See also, the ICTY decision in

Prosecutor v. Furundzija, IT-95-17/1 December 1998. Such decisions have contributed

substantially to the acceptance of rape as a grave breach of international humanitarian law. 472

Furundzija Judgment, para. 180.


174

invasion of the vagina or anus of the victim, by a penis or an object. Oral sex is

also included. The Trial Chamber indicated the elements of rape as,

The sexual penetration, however slight: (a) of the vagina or anus of the

victim by the penis of the perpetrator or any other object used by the perpetrator;

or (b) of the mouth of the victim by the penis of the perpetrator; where such

penetration occurs without the consent of the victim. 473

According to the UN Report of the Special Rapporteur on the Situation

of Systematic Rape, Sexual Slavery and Slavery-like Practices during Periods of

Armed Conflict,

Rape should be understood to be the insertion, under conditions of force,

coercion or duress, of any object, including but not limited to a penis, into a

victim's vagina or anus; or the insertion, under conditions of force, coercion or

duress, of a penis into the mouth of the victim. Rape is defined in gender-neutral

terms, as both men and women are victims of rape. It is important, nevertheless,

to emphasize that all forms of sexual violence, including but not limited to rape,

must be condemned and prevented.474

In addition, the report of the Special Rapporteur on the Situation of

Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed

Conflict mentioned,

The definitions of rape used in the ICTY and the ICTR are consistent in

recognizing that: (i) rape is a serious crime of violence; (ii) rape is not limited

to forcible sexual intercourse; (iii) both women and men can be victims and

473

Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT- 96-23/1-T, Judgment (Feb. 22,

2001), available at http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf, para. 460. 474

E/CN.4/Sub.2/1998/13- 22 June 1998, Final Report of the Special Rapporteur on the Situation

of Systematic Rape, Sexual Slavery and Slavery like Practices During Periods of Armed

Conflict, p24.

175

perpetrators of rape; and (iv) coercion, as an element of rape, has a broad

meaning which is not limited to physical force.475

Restricting rape to penetration of the vagina would exclude other forms

of sexual violence against women. The UN Special Rapporteur on Sexual

Slavery states,

“The historic focus on the act of penetration largely derives from a male

preoccupation with assuring women’s chastity and ascertaining paternity of

children.”476 As has been noted by the UN Special Rapporteur on Violence

against Women, however, in fact, “frequently, the offender is unable or chooses

not to penetrate his victim in this manner, but may force her to perform acts of

oral sex, penetrate her with other parts of the body or other objects or demean

her in other ways.”477

In sum, it should be mentioned that according to ad hoc tribunals and

other international institution the actus reus element of rape is not limited to

intercourse by sexual organ, but may include a wide range of forms of sexual

violence. Regarding the Mens rea element there are different opinions which

will be explained in the next section.

5.2.1 A quick glance at the Mens rea of rape: non-consent or coercion?

There is an important international debate on the constitutive elements of

rape and whether or not the elements of non-consent or the coercion of the

victims have to be included. A discussion of the various approaches now follows.

Mens rea, in rape cases, consists of having sexual relations with

knowledge that the other person does not consent or by applying force. The

mens rea in rape cases has not been extensively discussed in the international

475

E/CN.4/Sub.2/2000/21 6 June 2000,Para 46, contemporary forms of slavery Systematic rape,

sexual slavery and slavery-like practices during armed conflict Update to the final report

submitted by Special Rapporteur Ms. Gay J. McDougall. 476

UN Doc. E/CN.4/Sub.2/1998/13, 22 Jun 1998, para. 24. 477

UN. Doc.E/CN.4/1999/68/add.3, 21 January 1999, para. 36, Report of the Special Rapporteur

on Violence Against Women, Its Causes and Consequences: Mission to Indonesia and East-

Timor on the Issue of Violence Against Women,. and E/CN 4 (1999), Para 68.


176

criminal law, because rape is categorized under three international crimes;

therefore, this has caused the concept of mens rea to be somewhat different from

that used in Islamic law. For example, rape in the context of torture has to serve

the purpose of obtaining information etc. In the 1998 ICTR case of Akayesu

rape was considered in the context of a crime against humanity: rape was “A

physical invasion of a sexual nature, committed on a person under

circumstances which are coercive. … Threats, intimidation, extortion and other

forms of duress which prey on fear or desperation may constitute coercion, and

coercion may be inherent in certain circumstances.”478

In this case, the tribunal

held that coercion was one of the elements of rape. On December 1998, an

ICTY Trial Chamber, in the Furundzija Judgment, accepted coercion or force or

threat of force against a victim or third person as one of the aspects of rape.479

Both decisions do not refer to the non-consent of the victim as a

prerequisite to the committing of rape.480

In other words, the definitions of rape

used in the ICTY and the ICTR are consistent in recognizing that: (i) rape is a

serious crime of violence; …. and (ii) coercion, is an important element of rape,

therefore rape is not limited to physical force.481

In the Kunarac case of February 2001 (by the Trial Chamber of ICTY),

mens rea is discussed to some extent, as the defense argued mistaken belief in

consent. The Trial Chamber acknowledged that (lack of) consent should be

evaluated in the circumstances of an armed conflict.482

In this case, the non-

consent standard was accepted by judges as it was said “… Penetration occurs

478

Prosecutor v. Akayesu, ICTR-96-4-T, September 1998, Para 688.

http://69.94.11.53/ENGLISH/cases/Akayesu/index.htm. 479

Furundzija Judgment, Para. 180. 480

De Brouwer, Anne-Marie,Supranational criminal prosecution of sexual violence: The icc and

the practice of the icty and the ictr, 20, Intersentia, 2006.P 121. 481

E/CN.4/Sub.2/2000/21 6 June 2000, Update to the final report submitted by Ms. Gay J.

McDougall, Special Rapporteur, Systematic rape, sexual slavery and slavery-like practices

during armed conflict, p12. 482

Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT- 96-23/1-T, Judgment (Feb. 22,

2001), available at http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf, par 442. (i)

the sexual activity is accompanied by force or threat of force to the victim or a third party; (ii)

the sexual activity is accompanied by force or a variety of other specified circumstances which

made the victim particularly vulnerable or negated her ability to make an informed refusal; or

(iii) the sexual activity occurs without the consent of the victim."

177

without the consent of the victim. Consent for this purpose, must be given

voluntary, as a result of the victim’s free will, and it is assessed in the context of

the surrounding circumstances.”483

Under the doctrine of stare decisis, the

Kunarac judgment set an important precedent. The same approach was followed

in the Prosecutor v. Laurent Semanza.484

The elements of rape were also further developed by the SPSC (Special

Panel for Serious Crimes in East Timor).485

In the Cardoso case, the SPSC

judges expressed their agreement with the Kunarac case – that lack of consent is

central to the elements of rape and that consent must be given voluntarily and

out of the victim’s free will.486

The ICTR in the Gacumbitsi case mentioned, “The victim’s non-consent,

and the perpetrator’s knowledge of such non-consent were indeed elements of

the crime of rape that the Prosecutor must prove beyond a reasonable

doubt.”487

In Gacumbitsi, the ICTR held that the accused must be aware, or

have reason to be aware, of the coercive circumstances that undermined the

possibilities of genuine consent.488

Proof of this level of knowledge was

facilitated by Rule 94 of the Rules of Procedure and Evidence of the ICTR,

which permitted the Tribunal to take judicial notice of facts of common

knowledge from other proceedings. In the Karamera case, the genocide,

widespread or systematic attack and armed conflict in 1994 against the Tutsi

483

Kunarac Judgment, para. 460. 484

Prosecutor v. Laurent Semanza, Judgment and Sentence, Case No. ICTR-97-20-T, 15 May

2003 (Semanza Judgment). 485

The Special Panels for Serious Crimes (SPSC) in East Timor were established by the United

Nations, acting as the transitional authority between the end of the Indonesian occupation in

1999 and the independence of East Timor in 2002. The UN Transitional Authority in East Timor

(UNTAET) established the Special Panels under its mandate to establish law and order after the

end of the hostilities. The UNTAET Regulation 2000/15, approved in July 2000, described the

operation of the new Special Panels. 486

Sellers, Patricia Viseur,The prosecution of sexual violence in conflict: The importance of

human rights as means of interpretation, Women's Human Rights and Gender Unit (WRGU),

2012. p22 and UNTAET Regulation 2000/25, Section 34. 487

The Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, ICTR, Appeal Judgment of 7 July

2006, para. 157. 488

The Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-A, ICTR, Appeal Judgment of 7 July

2006, para. 157.


178

ethnic group were held to constitute facts of common knowledge.489

Therefore,

the Kunarac standard prevailed in rape cases before the ICTR and ICTY. It

should be mentioned that tribunals believe that proof of coercion will be easy in

the cases of genocide, crime against humanity and armed conflict.490

In June 2007, the SCSL (Special Court for Sierra Leone)491

issued its

first trial judgment, in the AFRC case. The trial chamber set forth the elements

for rape under crimes against humanity as follows,

1. The non-consensual penetration, however slight, of the vagina or anus

of victim by the penis of the perpetrator or by any object used by the perpetrator

or of the mouth of the victim by the penis of the perpetrator; and

2. The intent to do this sexual penetration and the knowledge that it

occurs without the consent of the victim.

After adopting the definition, the judges further found that,

Consent of the victim must be given voluntarily, as a result of the

victim’s free will, assessed in the context of the surroundings .… in situations of

armed conflict, coercion is almost always universal. Continuous resistance of

the victim and physical force or even threat of force by the perpetrator are not

required to establish coercion. Children below the age of 14 cannot give valid

consent.492

489

Prosecutor v. Karemera, Case No. ICTR-98-44-AR73 (C), ICTR, Decision on Prosecutor’s

Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006, paras. 22-38. 490

See e.g. Prosecutor v. Kunarac, Kovac and Vukovic, Appeal Judgment of 12 June 2002, para.

130, The Prosecutor v. Gacumbitsi, Appeal Judgment, 7 July 2006, para. 155, The Prosecutor v.

Jean-Paul Akayesu, Judgment of 2 September 1998, para. 688. 491

The Special Court for Sierra Leone, or the SCSL, is a judicial body set up by the government

of Sierra Leone and the United Nations to "prosecute persons who bear the greatest

responsibility for serious violations of international humanitarian law and Sierra Leonean law"

committed in Sierra Leone after 30 November 1996 and during the Sierra Leone Civil War. 492

Prosecutor v. Alex Tamba Brima, Brima,Bazzy Kamera, Santigie Borbor Kanu,SCSL-04-16-

T, 20 June 2007 (AFRC case), para. 1068/1188693, AFRC, Para 693-694.

179

In addition, The ICC Elements of the Crimes (The EoC of the ICC)493

include a definition of rape as,

(1)The perpetrator invaded the body of a person by conduct resulting in

penetration, however slight, of any part of the body of the victim or of the

perpetrator with a sexual organ, or of the anal or genital opening of the victim

with any object or any other part of the body. (2) The invasion was committed

by force, or threat of force or coercion, such as that caused by fear of violence,

duress, detention, psychological oppression, or abuse of power, against such a

person or another person, or by taking advantage of a coercive environment, or

the invasion was committed against a person incapable of giving genuine

consent.494

The ICC definition of rape is a combination of the rape definitions

offered by ICTY and ICTR and parts of the ICTY/ICTR procedural Rule and

Evidence employed by the ad hoc Tribunals. 495

According to article 30 of Rome

statute, Intent is defined as,

a) In relation to conduct, that person means to engage in the conduct, b)

in relation to a consequence, that person means to cause that consequence or is

aware that it will occur in the ordinary course of events. Knowledge entails

493

In Articles 6, 7 and 8, the Rome Statute sets out a list of crimes over which the ICC will have

jurisdiction: genocide, crimes against humanity and war crimes. In order to provide greater

certainty and clarity concerning the content of each crime, a preparatory commission (PrepCom),

which was mandated by the UN General Assembly, finalized a document on elements of crimes

(EOC). The EOC, which were adopted in the meantime by the Assembly of States Parties, will

guide the future judges and will therefore be of crucial importance for the work of the ICC in the

interpretation of the provisions on crimes. 494

EoC, Article 8(2) (b) (xxii).

495 Sellers, Patricia Viseur,The prosecution of sexual violence in conflict: The importance of

human rights as means of interpretation, Women's Human Rights and Gender Unit (WRGU),

2012. P 26, see also Yakin Ertürk , 15 years of the united nations special rapporteur on violence

against women (1994-2009)—a critical review, The United Nations Special Rapporteur on

Violence against Women, Its Causes and Consequences.P17.

http://www2.ohchr.org/english/issues/women/rapporteur/docs/15YearReviewofVAWMandate.p

df.


180

“awareness that a circumstance exists or a consequence will occur in the

ordinary course of events.”496

In addition, based on article 7 of the Rome Statute international crimes

may also require a particular knowledge, e.g. the mens rea in genocide is “intent

to destroy, in whole or in part, a national, ethnical, racial or religious

group”.497

For war crimes, the perpetrator must be “aware of the factual

circumstances that established the existence of an armed conflict”. In other

words, the knowledge that the sexual act occurred without consent could be

inferred from the circumstances surrounding the events of an armed conflict.498

At European level, as it has been explained earlier, the Istanbul

convention puts much stress on the non-consent element in article 36. It also

mentions that consent must be given voluntarily as the result of the person’s free

will assessed in the context of the surrounding circumstances.499

The European Court of Human Rights, when dealing with the nature and

definition of rape, mainly focused on the non-consent element. The ECHR has

attributed responsibility to state parties for rape crimes where agents of the state

committed the rape or where the state failed to provide an adequate remedy at

the national level. The European Convention does not explicitly include a right

to be free from sexual violence. Initially, the Court addressed rape as a violation

of the right to privacy. Later on, the ECHR recognized rape as torture, a severe

form of inhumane treatment.500

The ECtHR has mainly discussed the criminalization of rape in three

cases dealing with the nature and definition of rape. Two of these cases deal

with article 3 of the European convention of human rights regarding the torture

496

For more detailed overview of all cases regarding rape and sexual violence please see: De

Brouwer, A.M.,Supranational criminal prosecution of sexual violence: The icc and the practice

of the icty and the ictr, Intersentia, 2005 , De Brouwer, Anne-Marie, Ku, Charlotte, Römkens,

Renée G and Herik, Larissa J,Sexual violence as an international crime: Interdisciplinary

approaches, Intersentia, 2013. 497

See e.g. Article 6 of the Rome Statute. 498

Article 8, Introduction, Elements of Crimes. 499

http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm. 500

Strumpen-Darrie, Christine,Rape: A survey of current international jurisprudence, College of

Law, American University, 2000.pp 13, 17.

181

and inhuman and degrading treatment501

and categorized rape as a means of

torture.

In the case of X and Y v. the Netherlands, in 1985,502

the Court did not

consider the sexual violence to be a violation of Article 3 and the rape was only

discussed as a violation of the right to privacy. In this case, the court referred to

Article 8 of the ECHR, discussing the person’s entitlement to respect for private

and family life. The European court found that the concept of private life

covered “the physical and moral integrity of the person, including his or her

sexual life.” 503

In the case of Aydin v. Turkey, decided in 1997, 504

the Court clearly

mentioned that the rape constituted torture. The Court discussed the nature of

rape and concluded,

Rape leaves deep psychological scars on the victims which do not

respond to the passage of time as quickly as other forms of physical and mental

violence. The applicant also experienced the acute physical pain of forced

penetration, which must have left her feeling debased and violated both

physically and emotionally.505

In addition, in M.C. v. Bulgaria the Court recognized a violation of

Article 3 without indicating whether it satisfied the torture requirements.506

In

the M.C. v. Bulgaria case, the definition in the Kunarac judgment was used as a

reference in the area of human rights law. The court concluded that member

states must base their definitions of rape upon the element of non-consent;

however, this did not prevent formulations focusing on force, if interpreted in a

501

Article 3: Prohibition of torture No one shall be subjected to torture or to inhuman or

degrading treatment or punishment. 502

X and Y v. The Netherlands, ECtHR, (Application No. 8978/80), Judgment of 26 March1985 503

X and Y v. The Netherlands, ECtHR, Para 22. 504

Aydin v. Turkey, ECtHR, (Application No. 57/1996/676/866), Judgment of 25 September

1997. 505

Aydin v. Turkey, ECtHR , Para 83. 506

M.C. v. Bulgaria , ECtHR (Application No. 39272/98), Judgment of 4 December 2003.


182

way consistent with ‘non-consent’. The ECtHR in the M.C. v. Bulgaria case

discussed the criminal elements of rape as identified by the ICTY.507

In conclusion: international courts and tribunals have defined various

elements of rape, but no final authority on the definition of rape is available in

international law. A case-by-case approach prevails, although the courts

influence each other in dealing with concepts such as force, coercion and non-

consent. This also occurs across fields of international law, as when the ECtHR

relies on the Kunarac judgment.508

As Francoise Hampson argues, the

definitions of the ad hoc tribunals can be applied in human rights law in

situations outside of the context of armed conflict or mass- violence.509

The tribunals appear to have moved from coercion to a focus on non-

consent, that is to be assessed in the surrounding circumstances. The use of a

non-consent standard is arguably required under human rights law in order to

protect the individual’s sexual autonomy. Although the use of non-consent and

an assessment in light of the circumstances may offer the best way of

guarantying the rights of victims, a degree of flexibility remains necessary.

Some situations might not be covered, e.g. when the victim is brought into a

state of being unable to resist, suffers from physical or mental incapacity, or is

deceived due to misrepresentation etc. In addition, force may certainly be an

indication of non-consent but other forms of coercive behavior can also lead to

unwanted sexual relations; limiting the definition to force would leave out a

multitude of acts that are experienced as rape by the victim. A non-consent

based standard would therefore encompass more sexual acts that the individual

typically experiences as unwanted than a definition requiring force. Moreover,

in the context of armed conflicts, the argument has been raised that a non-

507

For more information about Rape cases ECTHR please see: Karagiannakis, Magdalini, Case

analysis: The definition of rape and its characterization as an act of genocide–a review of the

jurisprudence of the international criminal tribunals for rwanda and the former

yugoslavia,Leiden journal of international law, 12, 1999 , Pitea, Cesare, Rape as a human rights

violation and a criminal offence: The european court's judgment in mc v. Bulgaria,J. Int'l Crim.

Just., 3, 2005 , Radačić, Ivana, Rape cases in the jurisprudence of the european court of human

rights: Defining rape and determining the scope of state's obligations,electronic form only:: NE,

2008. 508

See for example, M.C v. Bulgaria, ECtHR, Case of the Miguel Castro-Castro Prison,

IACtHR. 509

UN Doc. E/CN.4/Sub.2/2004/6, para 19- 23.

183

consent based definition of rape is inappropriate, since the coercive

circumstances of a conflict create a presumption of non-consent, rendering such

an inquiry superfluous.

Finally, from the perspective of the rights of victims it would be ideal to

have a single definition of rape that is applied by all international tribunals. It

will help to have a single, united and hegemonic definition that prevent of chaos

and discrimination in the courts. As long as rape is not assessed autonomously

but as part of a broader crime, and in a wide variety of contexts, flexibility

remains important. The Istanbul convention represents a significant step in this

direction because it provides a single definition of rape and considers rape as an

autonomous crime. Although this is a regional convention, non-members of the

Council of Europe that participated in the drafting are invited to ratify the text as

well, showing the ambition of the drafters to have a wider impact. One of the

explicit purposes of the Istanbul convention is to “promote international co-

operation with a view to eliminating violence against women and domestic

violence.” This innovative approach can inspire and motivate the international

community to engage in a similar law-making exercise at the global level.

5.3 Victims and the right to provide evidence in international law

Since the right to furnish evidence is not explicitly mentioned in

international treaties, it needs to be deduced from other rights that are

guaranteed in international documents. Three rights are pertinent: the right of

victims to participation, the right to remedy and the right to protection.

In addition, international law, unlike traditional Islamic law, does not

limit the type of evidence that can be brought. Testimony, confession,

documentary evidence, real or physical evidence, digital evidence,

demonstrative evidence, scientific evidence including genetic and medico-legal

evidences and circumstantial evidence can all be brought to establish the truth -

as can perhaps be compared with knowledge of judges in the Shiite perspective

and circumstantial evidence in the Maliki school of thought. For instance, the

ICC rules of procedure and evidence in rule 64 only talks about the admissibility

of evidences before the court, not about different types of evidence. It says,

“Evidence ruled irrelevant or inadmissible shall not be considered by the


184

Chamber”. Therefore, international law is mainly preoccupied with the right to

be protected when victims are asked to testify as a witness or with the processes

that may facilitate victims to present their evidence in the courts such as the

requirements for testimony, witness, how they can testify, or how to protect

them etc.510

In the next section, the types of evidence that may assist victims of rape are

reviewed in brief. This is followed by a discussion of how international law

enables victims to bring evidence before the courts.

5.3.1 Different types of evidence

In the following part, different types of evidence which victims of rape may

provide are listed. These evidences have been confirmed by ICC and other

tribunals as well.

5.3.1.1 Testimony

The most traditional evidence is testimony that is obtained from a

witness who makes a statement or declaration of facts. Testimony may be oral

or written, and it is usually made under oath. Testimony can be provided by the

persons who witnessed the facts. Eyewitness identification, in criminal law, is

evidence received from a witness who has actually seen an event and can testify

in court. Expert witnesses are educated and trained persons who are believed to

have expertise and specialized knowledge in a particular subject. Some judges

may officially and legally rely upon the witness's specialized (scientific,

technical or other) opinion about an evidence or factual issue within the scope of

his expertise, referred to as the expert opinion, as assistance to the fact-finder.

Expert witnesses may also deliver expert evidence about facts from the domain

of their expertise. The rule of procedure and evidences of ICC accepts this

510

ICC Rules of Procedure and Evidence, Adopted by the Assembly of States Parties, First

session, New York, 3-10 September 2002, Official Records ICC-ASP/1/3.

185

evidence and provides some conditions on compellability of witnesses in rule 65.

This evidence also has been admitted in the case law of ICJ as well.511

5.3.1.2 Circumstantial evidence

This evidence is relevant to the existence of main facts, but it does not

prove it itself. That is, the existence of the main fact is understood from the

indirect or circumstantial evidence by a process of probable reasoning. The

introduction of a defendant’s fingerprints or a DNA sample are examples of

circumstantial evidence. The evidence must comply with the rules of evidence

law to be acceptable. Relevancy is one of the requirements of acceptability of

evidence which means that the evidence must establish or invalidate a legal

element or have probative value as to the likelihood of an element in the case.512

Some evidence may be disqualified under some conditions such as unfair

prejudice, confusion etc. Generally in law, evidence that is not probative (i.e.

does not prove what it is submitted for) is prohibited, and is thus excluded from

the proceedings or the record.513

The ICC stated in Prosecutor v. Mathieu

Ngudjolo: “No provision in the Rome Statute framework precludes the Chamber

from relying on circumstantial evidence. Where, based on the evidence, there is

only one reasonable finding to be drawn from particular facts, the Chamber

concluded that they have been established beyond reasonable doubt.” 514

At the

International Court of Justice, the Corfu Channel Case (United Kingdom v.

Albania), 1949, serves as a reference for the trend in accepting circumstantial

511 Evensen, Jens, Evidence before international courts,Nordisk Tidsskrift Int'l Ret, 25, 1955.

p55. 512

Probative is a term used in law to signify "tending to prove." 513

According to Rule 401 of the Federal Rules of Evidence (FRE), evidence is relevant if it has

the "tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence." Federal Rule

403 allows relevant evidence to be excluded "if its probative value is substantially outweighed

by the danger of unfair prejudice", if it leads to confusion of the issues, if it is misleading or if it

is a waste of time. California Evidence Code section 352 also allows for exclusion to avoid

"substantial danger of undue prejudice." For example, evidence that the victim of a car accident

was apparently a "liar, cheater, womanizer, and a man of low morals" was unduly prejudicial

and irrelevant to whether he had a valid product liability claim against the manufacturer of the

tires on his van (which had rolled over resulting in severe brain damage) (Winfred D. v. Michelin

North America, Inc., 165 Cal. App. 4th 1011 (2008) (reversing jury verdict for defendant). 514

ICC-01/04-02/12, 18 December 2012, Para 71.


186

evidence, shift of the burden of proof, proof beyond reasonable doubt and

admissibility of illegally acquired evidence.515

5.3.1.3 Documentary evidence

Documentary evidence is any evidence introduced at a trial in the form

of documents. This evidence can be in written form such as invoice or contracts

etc. and includes other medias such as photographs, tape recordings, films, and

printed emails etc. Documentary evidence should be corroborated by an

eyewitness to the execution of the document, or the testimony of a witness being

able to identify the handwriting of the purported author or through the provision

of an original document unless there is a good reason not to do so.

The ICC held that it would rely on expert and documentary evidence to

prosecute the cases against the President of Kenya Uhuru Kenyatta and his

deputy William Ruto following the withdrawal of key witnesses.516

ICC

spokesperson Fadi El Abdallah said in a video interview that witnesses were just

one form of evidence that prosecutor Fatou Bensouda will rely on.517

The ICJ

also accepts this kind of evidence. For instance, Art. 43 No. 1 of Rules of Court

and Art. 43 of the Statute of the Court seem to assume that copies of

documentary evidence may be presented before the Court. The view expressed

by Fachiri in his book on “The Permanent Court of International Justice: its

constitution, procedure and work” that the original must be produced before this

Court if possible, is rather an expression of the traditional Anglo-American rule

of documentary evidence than of the rules obtaining under international law.518

In the Anglo-Norwegian Fisheries-case, both Norway and England produced a

For more information please see: Scharf, Michael P and Day, Margaux, International court of

justice's treatment of circumstantial evidence and adverse inferences, the,Chi. J. Int'l L., 13,

2012. Scharf, Michael P and Day, Margaux, Reconcilable difference: A critical assessment of

the international court of justice’s treatment of circumstantial evidence,2010. Available at:

http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=michael_scharf 516

ICC-01/09-02/11, The Prosecutor v. Uhuru Muigai Kenyatta. 517

http://www.businessdailyafrica.com/ICC-to-use-experts-and-documents-in-Kenya-court-

cases/-/539546/1980222/-/14rr9xyz/-/index.html. 518

Fachiri, Alexander Pandelli,The permanent court of international justice: Its constitution,

procedure and work, Scientia Verlag Und Antiquariat, 1932. 2. ed., p 119.

187

series of documents in evidence, either in the form of typed copies or photo

states duly certified by the respective agents.519

5.3.1.4 Real or Physical evidence

Real or physical evidence is any material object, introduced to a trial,

intended to prove a fact in an issue based on its demonstrable physical

characteristics. Physical evidence can include all or part of any object. This

evidence can include injured parts of the body, a weapon etc. Trace evidence,

such as fingerprints and firearm residue, is also a type of real evidence. Real

evidence is usually reported upon by an expert witness with appropriate

qualifications to give an opinion, such as a forensic scientist or an expert

qualified in forensic engineering. In a rape trial for example (or a civil trial for

assault), the physical evidence may include biological evidence such as DNA

left by the attacker on the victim's body, the body itself, the weapon used, or

casts of footprints or tire prints found at the scene of the crime. Admissibility of

real evidence is subject to confirmation, expression of relevance etc. through

witness statements or by circumstantial evidence called the chain of custody.

The ICC Rules of Procedure and Evidence admit the validity of physical

evidence in rule number 10.520

5.3.1.5 Digital evidence

Digital evidence contains information stored or transmitted in digital

form. The court assesses the relevance and validity of the evidence, whether or

not it is hearsay and whether a copy is acceptable or the original edition is

required.521

This kind of evidence can play an important role in some serious

crimes such as rape, homicide, abduction, trafficking etc.522

Nowadays, the ICC

519

Evensen, Jens, Evidence before international courts,Nordisk Tidsskrift Int'l Ret, 25, 1955. p

22. 520

Rule 10, Retention of information and evidence, Rules of Procedure and Evidence 521

Casey, E.,Digital evidence and computer crime: Forensic science, computers and the internet,

Academic Press, 2011. P 807. 522

For more information please see: O’neill, Kathleen, Sentilles, Della and Brinks, Daniel M,

New wine in old wineskins? New problems in the use of electronic evidence in human rights

investigations and prosecutions, Report prepared Under the auspices of the Bernard and Audre

Rapoport Center for Human Rights, available at,


188

prosecutors and investigators are also looking into new technologies to access

untapped probative evidence, including the use of remote sensing, satellite

imaging, cyber investigations, and digital and video analysis.523

5.3.1.6 Scientific evidence (Genetic and medico-legal evidence)

Genetic (DNA) evidence: DNA profiling is a technique employed by

forensic scientists to help identify the individuals by their particular DNA

profiles. DNA profiles are encrypted sets of numbers that reflect a person's

DNA makeup. DNA evidence is of importance in sexual assault cases. When a

rape crime or in general a sexual crime is committed, the offender's DNA may

be left on the victim's body or clothing or at the crime scene. DNA evidence will

be very helpful to identify the offenders and even some elements of crime. An

offender's DNA can be obtained from many different sources, including his/her

saliva, sweat, blood, semen, hair, and skin cells. When a sexual assault victim

undergoes a forensic medical examination, the evidence collected from the

victim's body and/or clothing, which may include the offender's DNA, is

packaged in a sexual assault evidence kit (sometimes referred to as a "rape kit").

Additional evidence, such as body fluids left at the location of the crime (e.g.,

on bedding, furniture, or the rim of a drinking glass) may also be collected at the

crime scene. The rape kit and the crime scene evidence samples are usually sent

to a crime lab for analyzing and identifying the offenders.524

Medico-legal evidence: medical evidence in sexual offences,

particularly rape, is very important. Proper interpretation of the evidence may

http://www.utexas.edu/law/centers/humanrights/projects_and_publications/Rapoport-E-

evidence-report.pdf. 523

Human Rights Center at the University of California, Berkeley, School of Law, Beyond

Reasonable Doubt, using scientific evidence to advance prosecutions and the International

Criminal Court, workshop report from consultation with the ICC Office of the Prosecutor from

23–25 October 2013, p 4,

www.law.berkeley.edu/files/HRC/HRC_Beyond_Reasonable_Doubt_FINAL.pdf.

And An International Bar Association , Witnesses before the International Criminal Court ,

International Criminal Court Programme report on the ICC’s efforts and challenges to protect,

support and ensure the rights of witnesses July 2013, Supported by the IBAHRI Trust, Ngane,

Sylvia Ntube, Witnesses before the international criminal court,Law & Prac. Int'l Cts. &

Tribunals, 8, 2009. 524

For instance; Rape treatment centre of santa monika, UCLA medical centre.

189

protect victims and improper interpretation may expose them to the risk of

secondary victimization. A medico legal examination can include physical and

psychiatric assessment. This kind of assessment is even more important when a

psychiatric report is used to evaluate the extent of psychological harm and the

amount of compensation to be awarded to the victims for example in relation to

compensation for work-related stress or after a traumatic event such as an

accident.525

Article 135 of the ICC Rules of Procedure and Evidence provides

some requirements for medical examination of the accused.

5.3.2 The right of victims to participate in the proceedings

The notion of ‘participation’ is an abstract term without any specific

definition. Edwards has suggested that it derives from the general concept of

citizenship, and may include "being in control, having a say, being listened to,

or being treated with dignity and respect." 526 The concept of victim

‘participation’ may include contributing to the sentencing process, pre-trial

participatory rights and such rights as to undertake a private prosecution or to

get involved in plea negotiation; or it may refer to the place of victims within the

trial itself.527

The majority of international instruments suggest that victims

should be able to participate to some degree in proceedings, but without offering

much detail. 528 There are some international mechanisms that allow the

concerns and views of victims to be heard,529 but none of them provides that

victims should be considered parties to proceedings.

The instruments that address the issue are relatively unclear or non-

prescriptive. For example, Principle 6(b) of the UN Declaration on Victims

states that the judicial process should allow the views and concerns of victims to

525

Black, Dora, Newman, Martin, Harris-Hendriks, Jean and Mezey, Gillian,Psychological

trauma: A developmental approach, Gaskell London, 1997.PP 365-366. 526

Edwards, Ian, An ambiguous participant the crime victim and criminal justice decision-

making,British Journal of Criminology, 44, 2004. P 973. 527

It should be mentioned that the modalities of participation vary among tribunals, among

domestic systems etc. 528

Doak, Jonathan,Victims' rights, human rights and criminal justice: Reconceiving the role of

third parties, Hart, 2008. P 116. 529

See e.g. Art 25(3) UN Convention Against Transnational Organised Crime; Principle 5(3)

UNVictims Declaration.


190

be presented and considered at appropriate stages of the proceedings where their

personal interests are affected, without prejudice to the accused. Similarly, the

EU directive grants victims a right to be heard and supply evidence (Articles 10,

23). Principle 4 of the UN Principles on the Effective Investigation and

Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment530

provides that victims and their legal representatives both have

rights to be informed and have access to any hearing or relevant information

about the investigation, and are entitled to present additional evidence.

International treaties contain equally open norms. For example, Article 25 (3) of

the Convention against Transnational Organized Crime replicates the UN

Victims’ Declaration in requiring only that: each State Party shall, subject to its

domestic law, enable views and concerns of victims to be presented and

considered at appropriate stages of criminal proceedings.531

Article 6 of the

Convention’s Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children provides that, in appropriate cases, victims of

trafficking shall be “assisted to express their views and concerns at appropriate

stages of criminal proceedings in a manner not prejudicial to the rights of the

defense.”

The lack of consensus on the extent to which victims should be entitled

to participate is also reflected in the rules of international criminal tribunals.

The role of victims testifying before the International Criminal Tribunals for

Yugoslavia and Rwanda is limited to testifying as witnesses. Victims are

permitted to speak only when questioned in the context of examination or cross-

examination. Moreover, there is no right to legal representation, and no right to

introduce additional evidence.532

The Rome Statute of ICC includes a general right to participation.

According to Article 68(3) victims at the International Criminal Court have a

right to present their views and make submissions when their benefits are at risk.

The Court shall take appropriate measures to protect the safety, physical and

psychological well-being, dignity and privacy of victims and witnesses. Of

530

GA/RES/55/89. 531

UN Doc A/45/49. 532


third parties, Hart, 2008. P 136.

191

course, these measures shall not be prejudicial to or inconsistent with the rights

of the accused and a fair and impartial trial. (Art 68(1).) Rule 90 of the Rules of

Procedure and Evidence states that victims or their legal representative may

apply to the Chamber to participate in the trial in three ways: to attend and

participate in the proceedings; (R 91(2)); to question a witness, an expert or the

accused; (R 91) and to make opening and closing statements.533

Under Rule

91(2), the Chamber has to determine the extent to which victims are able to

participate, and may limit their participation. The ICC also mentions more

specifically the right of women victims. The ICC Statute and Rules mainly

address women both as witnesses and victims. In many instances, women will

come to the Court in both roles at the same time. The ICC Statute and Rules

create a comprehensive system of witness protection and recognize their specific

needs. Article 68 on the protection of the victims and witnesses and their

participation in the proceedings specifically reflects gender concerns,

The Court shall take appropriate measures to protect the safety,

physical and psychological well-being, dignity and privacy of victims and

witnesses. The Court shall have regard to all relevant factors, including age,

gender as defined in Article 7, paragraph 3, and health, and the nature of the

crime, in particular, but not limited to, where the crime involves sexual or

gender violence or violence against children.

The article provides that protective measures such as holding in camera

hearings or allowing evidence by electronic means shall be provided in the case

of a victim of sexual violence or a child who is a victim or a witness, having

regard to all the circumstances, particularly the views of the victim or witness.

The ICC Statute also creates a Victims and Witnesses Unit under Article 43(6),

This Unit shall provide, in consultation with the Office of the Prosecutor,

protective measures and security arrangements, counselling and other

appropriate assistance for witnesses, victims who appear before the Court and

533

Rule 89(1). Where there are a number of victims, the Court may request that victims choose a

common legal representative (R 90(1)(2)). If a victim is unable to afford legal representation,

financial assistance may be available from the Registry (R 90(5)). R 91(2). Art 43(6) of the

Statute requires that the appointment of a victims’ advocate is to be effected through the Victims

and Witnesses Unit. Further details on the assignment of advocates are contained within R 90.


192

others who are at risk on account of testimony given by such witnesses. The Unit

shall include staff with expertise in trauma, including trauma related to crimes

of sexual violence.

The responsibilities and functions of the Victims and Witnesses Unit are

elaborated in Rules 16 to 19.534

Similarly, the International Criminal Tribunal

for the Former Yugoslavia (ICTY), the Rules of Procedure and Evidence

provide for the establishment of a Victim and Witnesses Unit, which has two

main functions: to recommend protective measures for victims and witnesses in

accordance with Article 22 of the Statute; and to provide counselling and

support for them, particularly in cases of rape and sexual assault.535

In sum, some aspects of the right to participation that have been

identified by different tribunals or conventions can be relevant for the right to

provide evidence, such as: the protection of victims’ privacy, victims’ right to

be heard, allowing them to present evidence by electronic means, accepting

camera hearings or providing legal assistance for victims. These aspects will

help and facilitate victims to present their evidence before the courts without

fear or danger.

5.3.3 Right to protection

The right to protection of victims can be discussed from two perspectives:

the prevention of victimization and the protection against secondary

victimization. The right to furnish evidence and the protection of victims as

witnesses in court contribute to a certain extent to the prevention of secondary

victimization. This term is mainly used to describe the additional pain of victims

resulting from the institutional response to an offence. Because of the nature of

rape and the public perception of the crime, many victims suffer emotional and

physical consequences of their victimization. Victims will often be asked to

participate in court proceedings and to testify and, in most cases, they will be

interviewed in detail about aspects of the crime such as intercourse; the previous

534

Rules of Procedure and Evidence, Adopted by the Assembly of States Parties, First session,

New York, 3-10 September 2002, Official Records ICC-ASP/1/3. 535


third parties, Hart, 2008. P 69.

193

sexual relationship between the defendant and the victim; clothing, behaviour

and mental state (e.g. was the victim sober?); the job position (was the victim a

sex worker?) etc. All of these questions may imply criticism of the victim, who

will need to justify her or his behaviour. These kinds of questions may cause

secondary victimization.

Some international instruments provide vague and general obligations to

treat victims and witnesses with respect and sensitivity particularly when they

provide evidence. For example, Principle 4 of the UN Declaration on Victims

provides that "victims should be treated with compassion and respect for their

dignity." Guideline C.8 of the Council of Europe’s Recommendation No R(85)

provides that a victim of crime has the right to be "questioned in a manner

which gives due consideration to his personal situation, his rights and dignity."

However, by looking at developments within international criminal

justice, we may be able to find out some potential indicators of consensus.

According to the Declaration of Basic Principles of Justice for Victims of Crime

and Abuse of Power Adopted by General Assembly resolution 40/34 of 29

November 1985 victims should have access to justice and fair treatment. This

declaration says,

The responsiveness of judicial and administrative processes to the needs

of victims should be facilitated by: (c) Providing proper assistance to victims

throughout the legal process; (d) Taking measures to minimize inconvenience to

victims, protect their privacy, when necessary, and ensure their safety, as well

as that of their families and witnesses on their behalf, from intimidation and

retaliation.

According to the Declaration, victims also have the right to assistance,

Victims should be informed of the availability of health and social

services and other relevant assistance and be readily afforded access to them.

Police, justice, health, social service and other personnel concerned should

receive training to sensitize them to the needs of victims, and guidelines to

ensure proper and prompt aid. In providing services and assistance to victims,

attention should be given to those who have special needs because of the nature


194

of the harm inflicted or because of factors such as those mentioned in paragraph

3 above.

Providing assistance for victims of rape and helping them to furnish

proper evidence can be perceived as part of a protective strategy.

Article 68 the Rome Statute of the ICC contains particular measures for

the protection of victims. A range of factors, including age, gender and the

nature of the offences are to be taken into account.536

Article 69(2) empowers the

Court to receive oral or recorded testimony of a witness by means of video or

audio technology, or through documentary evidence. Next to Article 69(2), the

Rules of Procedure and Evidence make specific provision for the receipt of

evidence through video technology. First, under Rule 67, the Chamber may

allow a witness to give testimony by means of audio or video technology,

although this must not prevent the questioning of the witness by the Prosecutor,

defence or Chamber. Rule 67(3) adds that the Chamber will guarantee that the

location chosen for the conduct of the audio or video-link testimony is helpful to

the giving of truthful and open testimony and to the safety, physical and

psychological well-being, dignity and privacy of the witness. Under Article

43(6), the Victims and Witnesses Unit will consult with the Office of the

Prosecutor concerning the availability of protective measures, security

arrangements and counselling for victims, witnesses and ‘others who are at risk

on account of testimony given by such witnesses.’ Testimony at the ICC may

also be given in pre-recorded form. Rule 68 allows pre-recorded evidence to be

cited, providing that both the Prosecutor and the defence have had the

opportunity to examine the witness either during the recording; or at a

subsequent appearance in the proceedings. Specific provision for vulnerable

victims is made by Rule 112(4), which provides that the Prosecutor can use

audio or video recording when questioning victims of sexual or gender violence,

or a child, where such measures could reduce any subsequent detrimental effects

to the victim.

A further point to note concerning the treatment of rape victims in

international criminal trials is that the use of evidence with regard to previous

536

Art 68(2).

195

sexual history is generally prohibited. At the ICTY, a victim’s previous sexual

conduct is considered as irrelevant and inadmissible.537

Other rules have been

formulated specifically to protect victims of rape and sexual assault. No

corroboration of the victim’s testimony is required in matters of sexual assault538

,

Furthermore, if a defence of consent is raised, the Tribunal may take note of

factors that vitiate consent, including physical violence and moral or

psychological constraints.539

Rule 34 also attempts to reduce the unavoidable

stress and fear experienced by many sexual complainants by providing suitable

consideration, in the appointment of staff, to the employment of qualified

women. This rule was particularly important, as rapes were extremely common

in the Yugoslav conflict. In the same way, Rule 70 of the Rules of Procedure

and Evidence at the ICC states that credibility, character or predisposition to

sexual availability of a victim or witness cannot be inferred by reason of the

sexual nature of the prior or subsequent conduct of a victim or witness. Under

Rule 71, the Court shall not admit the previous or subsequent sexual conduct of

a victim or witness as evidence, subject to the general discretion to rule on the

relevance or admissibility of all evidence under Article 69(4) of the Statute. The

Special Rapporteur on torture and other cruel, inhuman or degrading treatment

or punishment has noted that the admission of this type of evidence increases

the trauma of testifying as women may be humiliated in having to expose

aspects of their private life that are irrelevant for the crime being tried. This

report also has highlighted the difficulties that victim of rape face in national

courts. It says,

Also rules of procedure and evidence of national courts may overlook

women-specific needs: they often require evidence of physical resistance by the

victim in order to show lack of consent, which means that women who were too

terrified to fight back and struggle with the perpetrator may be unable to prove

that they were raped. Also courts frequently ignore “soft” evidence such as

psychological assessments (“battered woman syndrome”). Furthermore, in

some countries a rape victim must present eye witnesses in order to prove that

537

Rule 96(iv). 538

Rule 91(1). 539

Rule 96(ii).


196

the crime took place, which is obviously problematic in cases of sexual

violence.540

At the end, it is worth nothing that the Istanbul convention also provides

some provisions in order to protect women victims of violence. For instance

article 56 requires states parties to take the necessary legislative or other

measures to protect the rights and interests of victims, including their special

needs as witnesses, at all stages of investigations and judicial proceedings, in

particular by:

…. d: enabling victims, in a manner consistent with the procedural rules

of internal law, to be heard, to supply evidence and have their views, needs and

concerns presented, directly or through an intermediary,; e providing victims

with appropriate support services so that their rights and interests are duly

presented and taken into account; h: providing victims with independent and

competent interpreters when victims are parties to proceedings or when they are

supplying evidence; i enabling victims to testify, according to the rules provided

by their internal law, in the courtroom without being present or at least without

the presence of the alleged perpetrator, notably through the use of appropriate

communication technologies, where available.

It finally mentions, “A child victim and child witness of violence against

women and domestic violence shall be afforded, where appropriate, special

protection measures taking into account the best interests of the child.”

5.3.4 Right to a remedy

The right to a remedy encompasses different elements. As Shelton

suggests: “The concept of a ‘remedy’ may be understood to refer to ‘the range

of measures that may be taken in response to an actual or threatened violation

of human rights.”541

540

A/HRC/7/3, Para 62. 541

Shelton, Dinah,Remedies in international human rights law, Oxford University Press, 1999. P

4.

197

These measures fall into two categories: first, there are some elements

relating to general and procedural types of redress, such as the state obligation to

prevent crime, and to respond to crime by providing appropriate systems of

investigation, prosecution and punishment. Secondly, there are remedies

providing redress to victims such as reparation, compensation, rehabilitation,

and satisfaction, etc.542

The right of victims to furnish evidence and to be assisted

in that regard could be included in the group of measures dealing with

investigations and proper responses to crime.

Several international and regional human rights instruments articulate

the duty to provide a remedy for human rights violations. These documents deal

with both aspects of the right. In international human rights law, this right

appears for the first time in 1948 as a part of the Universal Declaration of

Human Rights. Article 8 of the Declaration notes that everyone has the right to

an effective remedy by the competent national tribunals for acts violating the

fundamental rights granted by the constitution or by law. Afterwards, Article 2(3)

of the International Covenant on Civil and Political Rights requires states to

ensure that: any person whose rights or freedoms are violated shall have an

effective remedy.

In a General Comment adopted in 1982 on Article 7 ICCPR, which

prohibits torture and cruel, inhuman and degrading treatment and punishment,

the Human Rights Committee emphasizes that the Article should be read

together with the right to a remedy contained in Article 2, and insisted that

States must ensure an effective protection through some machinery of control.

Complaints about ill-treatment must be investigated effectively by competent

authorities. Those found guilty must be held responsible, and the alleged victims

must themselves have effective remedies at their disposal, including the right to

obtain compensation.543

The Basic Principles and Guidelines on the Right to a Remedy and

Reparation of Victims of Violations of International Human Rights and

542


third parties, Hart, 2008.P 159. 543

CCPR General Comment No. 7, UN Doc No A/37/40 (1982). Para 1.


198

Humanitarian Law specify the rights of victims in relation to remedial action.544

Principle 3 outlines the obligation of states to:

(a) take appropriate legislative and administrative and other

appropriate measures to prevent violations (b) investigate violations effectively,

promptly, thoroughly and impartially and, where appropriate, take action

against those allegedly responsible ”in accordance with domestic and

international law (c) provide those who claim to be victims of a human rights or

humanitarian law violation with equal and effective access to justice . . .

irrespective of who may ultimately be the bearer of responsibility for the

violation; and (d) provide effective remedies to victims, including reparation.

It is thus generally accepted that states have a duty to investigate serious

human rights violations and to prosecute and punish perpetrators.545

Assisting

victims to furnish proper evidence contributes to the realization of this aim.546

At the European level, the Committee of Ministers of the Council of

Europe has adopted non-binding recommendations on victims’ rights that has

raised awareness of the importance of these rights in the Member States. The

European Union has adopted a Framework Decision on the Standing of Victims

544

UN Doc A/RES/60/147. 545

Seibert-Fohr, A.,Prosecuting serious human rights violations, OUP Oxford, 2009. p 245. 546

International Convention for the Protection of All Persons from Enforced Disappearance

(E/CN.4/2005/WG.22/WP.1/REV.4) stipulates that each State party should take appropriate

measures to investigate instances of enforced disappearances, (Art 3.) and to ensure that

enforced disappearance constitutes an offence under its criminal law.(Art 4.) Similar state

obligations can be found in the Convention on the Elimination of All Forms of Discrimination

against Women, (See Arts 2(b) and 2(c).) the Convention on the Elimination of Racial

Discrimination (Art 6.) and the Convention on the Rights of the Child. (Art 39.) Under

international humanitarian law, the Convention on the Prevention and Punishment of the Crime

of Genocide oblige the parties to prevent, prosecute, punish and provide for effective penalties

for instances of genocide.( GA/RES/260 A (III), Arts 1, 4 and 5.) Under the Geneva conventions

(49 of Geneva Convention (I) 75 UNTS 31; Art 50 of Geneva Convention (II) 75 UNTS 85; Art

129 of Geneva Convention (III) 75 UNTS 135; and Art 146 of Geneva Convention (IV) 75

UNTS 28.) and the first Additional Protocol of 1977, (Art 85 of Additional Protocol II.) states

involved in international conflicts are subject to a duty to prosecute and punish perpetrators of

‘grave breaches’ including torture, inhuman treatment, and depriving civilians of due process

rights.

199

in Criminal Proceedings (2001/220/JHA), which revised into a directive on 25

October 2012547

and is an obligatory instrument.

Recommendation No. R (85) 11 on the Position of the Victim in the

Framework of Criminal Law and Procedure (1985), provides that victims should

be able to request a review of a decision not to prosecute, and be granted the

right to institute a private prosecution (article 7). It also emphasizes the

importance of providing information to victims including on the date and place

of the hearing, opportunities to claim compensation and the availability of legal

assistance (article 9). In addition, it recommends that information concerning the

victim’s injuries and losses should be taken into consideration for compensating

victims (article 12). Its provisions represented the beginnings of a European

recognition of the importance of addressing victims’ needs and of including

their perspectives in the criminal justice process. Recommendation No. R (87)

21 of the Committee of Ministers on Assistance to Victims and Prevention of

Victimization (1987) deals with the provision of support and assistance to

victims outside the criminal justice system. It was later replaced by

Recommendation (2006) 8 on Assistance to Crime Victims (2006), which is

placed firmly within a victims’ rights framework. Article 2 provides that states

must ensure that victims’ rights are recognized and respected with reference to

human rights, particularly the rights to ‘security, dignity, private and family life’

and that the measures in Rec (2006) 8 must be ‘made available to victims

without discrimination’.

These measures require that States provide victims with medical,

psychological and social assistance and ensure that vulnerable victims have

access to special measures to assist them in testifying (article 3); to ensure that

victims have access to information about support services, court procedure,

protection, legal advice, etc. (article 6); and to provide compensation to victims

of serious, intentional, violent crimes and their families if the victim has died

(article 8). Although Rec (2006) 8 is not binding on Member States, it refers to

rights also included in the Framework Decision.

547

Official Journal, L 31 5/ 57, 14/11/2012 .

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF.


200

Directive 2012/29/EU of the European parliament and of the council

establishes minimum standards on the rights, support and protection of victims

of crime, (replacing Council Framework Decision 2001/220/JHA.)548

The

directive grants victims several rights, including the right to receive information

of relevance for the protection of their interests throughout the criminal justice

process (article 3 and 4); the right to have the possibility of being heard and to

give evidence (article 10); the right to compensation (article 16), the right to

protection, particularly as regards their safety and privacy, including, where

necessary, the right to testify in a manner that shields them from the effects of

giving evidence in open court (article 18, 20, 21, 23).

The European Court of Human Rights (ECtHR) has also dealt with

victims’ rights in its jurisprudence. The ECtHR has held that, where witnesses

are too afraid to testify, their rights/interests may legitimate the use of

anonymous evidence, hearsay evidence, or special measures, such as the

relaying of pre-recorded interviews. In appropriate circumstances, the limitation

of the defendant’s right in article 6(3)(d) in this regard may be justified. The

ECtHR has also recognized that victims’ interests must be taken into account

with regard to the defendant’s right to a fair trial in instances where special

measures such as pre-recorded testimony are used in order to free the witness

from having to testify in court.549

This approach was adopted in SN v Sweden,550

a case concerning a victim of sexual abuse whose testimony was admitted via

video and audio recordings. This testimony was ‘virtually the sole evidence’ on

which the applicant’s conviction was based (Para 46).

To conclude this section, although the right to provide evidence is not

explicitly mentioned in international documents, it can be protected and

included under other rights such the right to a remedy, the right to protection and

the right to participation. These rights encompass many procedures and rules to

facilitate the protection of victims during criminal procedure and help them to

present their evidence before the court.

548

It should be remind that here this is a body not of the Council of Europe, but of the EU – (so

the directive applies to a smaller group of States). 549

Wolhuter, Lorraine, Olley, Neil and Denham, David,Victimology: Victimisation and victims'

rights, Taylor & Francis US, 2008. p 123. 550

39 EHRR 13. (2004), Para 35-46.

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5.4 Victims and the right to compensation in international law

The relatively recent but fundamental shift in international law towards

the recognition of the rights and duties of individuals opens the doors to

awarding compensation to victims of violations of human rights and

international humanitarian law.

In the area of State responsibility, compensation mainly encompasses

financially assessable damage.551

With respect to financially assessable damages

the commentary on art. 36 of the Draft Articles on State Responsibility states

that: [a]wards of compensation encompass material losses (loss of earnings,

pensions, medical expenses etc.) and non-material damage (pain and suffering,

mental anguish, humiliation, loss of enjoyment of life and loss of

companionship or consortium) - the latter is usually quantified on the basis of an

equitable assessment. It is disputed and often denied that compensation in

international law involves punitive damages.552

However, the Draft Articles on

State Responsibility apply only in the relationship between states and therefore

do no address reparation individuals or actions by individuals against states.553

The right of victims to compensation is considered in some human rights

instruments. The International Covenant on Civil and Political Rights, generally

requires States parties to ensure “that any person whose rights or freedoms as

herein recognized are violated shall have an effective remedy” (art. 2 (3)). The

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power says that,

Offenders or third parties responsible for their behavior should, where

appropriate, make fair restitution to victims, their families or dependents. Such

551

Cassese, Antonio,International criminal law, 2, Oxford University Press Oxford, 2003. 552

Gray, Christine D,Judicial remedies in international law, Oxford University Press, 1990. P

75. Text adopted by the International Law Commission at its fifty-third session, in 2001, and

submitted to the General Assembly as a part of the Commission’s report covering the work of

that session (A/56/10). The report, which also contains commentaries on the draft articles,

appears in the Yearbook of the International Law Commission, 2001, vol. II, Part Two, as

corrected. 553

This has been pronounced in Bassiouni principles.

http://www2.ohchr.org/english/issues/remedy/principles.htm,

http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx.


202

restitution should include the return of property or payment for the harm or loss

suffered, reimbursement of expenses incurred as a result of the victimization, the

provision of services and the restoration of rights.

In addition, the Declaration requires from the government that it

compensates victims when offenders are unable to afford compensation.554

The

establishment of national funds for compensation is encouraged.

The Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law

and Serious Violations of International Humanitarian Law reaffirm the need to

strengthen and expand national funds for compensation to victims together with

the expeditious development of appropriate rights and remedies for victims.

Principle 18 mentioned that,

In accordance with domestic law and international law, and taking

account of individual circumstances, victims of gross violations of international

human rights law and serious violations of international humanitarian law

should, as appropriate and proportional to the gravity of the violation and the

circumstances of each case, be provided with full and effective reparation, as

laid out in principles 19 to 23, which include the following forms: restitution,

compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Principle 20 lists different types of damages that should be compensated;

it says,

Compensation should be provided for any economically assessable

damage, as appropriate and proportional to the gravity of the violation and the

circumstances of each case, resulting from gross violations of international

human rights law and serious violations of international humanitarian law, such

as:(a) Physical or mental harm;(b) Lost opportunities, including employment,

554

It said in part 12.” When compensation is not fully available from the offender or other

sources, States should endeavor to provide financial compensation to: ( a ) Victims who have

sustained significant bodily injury or impairment of physical or mental health as a result of

serious crimes; ( b ) The family, in particular dependents of persons who have died or become

physically or mentally incapacitated as a result of such victimization.” Adopted by General

Assembly resolution 40/34 of 29 November 1985.

203

education and social benefits;(c) Material damages and loss of earnings,

including loss of earning potential;(d) Moral damage;(e) Costs required for

legal or expert assistance, medicine and medical services, and psychological

and social services.555

Specifically, the Committee on the Elimination of Discrimination against

Women has clarified that reparation should be proportionate to the physical and

mental harm undergone and to the gravity of the violations suffered. All the

major legal and policy instruments relating to violence against women affirm the

importance of remedies.556

The UN General Assembly Declaration on the

Elimination of Violence against Women article 4 (d) states that States should

provide women subjected to violence with,

Access to the mechanisms of justice and, as provided for by national

legislation, to just and effective remedies for the harm that they have suffered;

States should also inform women of their rights in seeking redress through such

mechanisms.

In addition, the Committee on the Elimination of Discrimination against

Women in General Recommendation No. 19 recommended in Para. 24 that “(i)

provision of effective complaints procedures and remedies, including

compensation, should be provided.”557

General Assembly resolution 52/86,

annex, Para. 10 (c) also emphasizes the right to compensation “urging States to

ensure women victims of violence receive “prompt and fair redress” including

restitution or compensation.”

Rashida Manjoo, UN special rapporteur on Violence against Women,

also discussed reparations for women who suffered violence during peace and

post-conflict situation.558

She stated:

Reparation measures should not concentrate on the fairly limited and

traditionally conceived catalogue of violations of civil and political rights, but

555

Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005. 556

E.g. the OAS Convention on Violence against Women, art. 7 (g) (women victims of violence

to have “effective access to restitution, reparations or just and effective remedies”). 557

http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm 558

A/HRC/14/22.


204

instead should include the worst forms of crimes or violations targeting women

and girls. It must additionally be acknowledged that the same violations may

entail different harms for men and women, but also for women and girls and

women from specific groups, and that violations may be perpetrated with the

complicity of non-State actors.559

The Beijing Declaration and Platform for Action, para.124 recommends

that States provide women that are victims of violence with “access to just and

effective remedies, including compensation and indemnification and healing of

victims”; they should also have access to the mechanisms of justice and

effective remedies for the harm they have suffered and be informed of their legal

rights. In addition, Para 9 states,

Under general international law and specific human rights covenants,

States may also be responsible for private acts if they fail to act with due

diligence to prevent violations of rights or to investigate and punish acts of

violence, and for providing compensation.560

According to the European Convention on the Compensation of Victims

of Violent Crimes (1983) Member States have a duty to make a contribution to

the compensation of eligible victims, namely to those who have suffered

‘serious bodily injury or impairment of health directly attributable to an

intentional crime of violence’ as well as to ‘the dependents of persons who have

died as a result of such crime’.561

The duty to compensate applies even if the

perpetrator has not been prosecuted or punished.562

The Compensation

559

A/HRC/14/22, Para 83. 560

The Beijing +5, Outcome Document, para.69 (b) states the obligation of the governments to

take measures to provide victims with avenues for redress; Para 98 (a) holds that “governments

and international organizations should “improve knowledge and awareness of the remedies

available” for violations of women’s human rights”. In addition, Article 25(2) of the UNTOC

Convention requires States Parties to establish appropriate procedures to provide access to

compensation and restitution for victims and requires that this right be Communicated to victims.

Article 14 of the UNTOC Convention requires States Parties to give priority consideration to

returning confiscated proceeds of crime or property to a requesting State Party so that it can give

compensation to victims. United nations convention against transnational organized crime and

the protocols thereto, General Assembly resolution 55/25 of 15 November 2000. 561

Article 2.1. 562

Article 2.2.

205

Convention provides that Member States must compensate eligible victims for,

at least, loss of earnings, medical expenses, hospital costs, funeral expenses and

loss of maintenance (in the case of dependents of deceased victims).563

It thus

envisages the award of sums that reflect the losses that victims have suffered

due to the crime. In addition to provisions for state compensation for victims of

violent crimes, the European Union has affirmed the right of victims to be

compensated by offenders. Article 16 of the EU directive provides that Member

States must guarantee the entitlement of victims to receive a decision within a

reasonable time, during criminal proceedings, concerning compensation by the

offender, unless domestic law makes provision for the award of compensation in

another way. Furthermore, Member States must encourage offenders ‘to provide

adequate compensation to victims’.

More recently, the Istanbul convention has dealt with right to

compensation through both perpetrators and State compensation. Article 30

stipulates,

“1-Parties shall take the necessary legislative or other measures to ensure that

victims have the right to claim compensation from perpetrators for any of the

offences established in accordance with this Convention. 2- Adequate State

compensation shall be awarded to those who have sustained serious bodily

injury or impairment of health, to the extent that the damage is not covered by

other sources such as the perpetrator, insurance or State-funded health and

social provisions. This does not preclude Parties from claiming regress for

compensation awarded from the perpetrator, as long as due regard is paid to

the victim’s safety. 3- Measures taken pursuant to paragraph 2 shall ensure the

granting of compensation within a reasonable time.”

In addition, some - UN reports contain recommendations on

compensation to victims. For example, the Special report on Bosnia and

Herzegovina advised to compensate victims of rape. 564

In addition, with regard

563

Article 4. 564

Committee on the Elimination of Discrimination against Women, 13th Session,Summary

record of the 252nd meeting, held at headquarters, , UN, on Tuesday, 1 February 1994. Para 20,

24, 25 and 34. A/HRC/23/49/Add.3, Para 62-94-102-104(i).


206

to the United Nations Organization Mission in the Democratic Republic of the

Congo (MONUC), Yakin Ertürk regretted that "at the time of writing, the United

Nations was still lacking a mechanism to provide victims of sexual exploitation

and abuse with adequate compensation". She recommended that the United

Nations give the Office of Internal Oversight Services the capacity to investigate

all allegations of sexual exploitation and misconduct of peacekeeping forces….,

where allegations are substantiated, to ensure that the victim receives

compensation from MONUC or relevant troop-contributing countries.565

Article 75 of Rome Statute of the International Criminal Court deals with

reparation to victims. It says,

1. The Court shall establish principles relating to reparations to, or in

respect of, victims, including restitution, compensation and rehabilitation. On

this basis, in its decision the Court may, either upon request or on its own

motion in exceptional circumstances, determine the scope and extent of any

damage, loss and injury to, or in respect of, victims and will state the principles

on which it is acting. 2. The Court may make an order directly against a

convicted person specifying appropriate reparations to, or in respect of, victims,

including restitution, compensation and rehabilitation. Where appropriate, the

Court may order that the award for reparations be made through the Trust Fund

provided for in article 79.

The Trust Fund established under article 79 of the Rome Statute, is one

important contribution to the Rome Statute’s overall goal to restore peace by

dispensing retributive justice to criminals and restorative justice to victims. The

fund may make payments directly to victims or their families or to other bodies,

such as organizations.566

The funds can be allocated either to individuals or to a

Throughout the 1992-1995 war, thousands of women and girls experienced rape and other

forms of sexual violence. While some women experienced isolated experiences of rape, others

were raped systematically and repeatedly, sometimes while being held as sex slaves in detention

centres. 565

Yakin Ertürk, 15 years of the united nations special rapporteur on violence against women

(1994-2009),a critical review, The United Nations Special Rapporteur on Violence against

Women, Its Causes and Consequences, P 18. 566

Rule 98 (3) and (4) of the Rules of Procedure and Evidence, see also Article 79 of the Rome

Statute, Fischer, Peter G, Victims' trust fund of the international criminal court-formation of a

207

collective. Apart from that, the Court’s policies and operation will have an

influence on how the Fund will be used. There are several sources to finance the

Trust Fund. According to article 79 of the Rome Statute fines and forfeiture can

be transferred from the Court to the Fund. In addition to imprisonment the ICC

can order under article 77 (2) of the Rome Statute fines and forfeiture of

proceeds, property and asserts. The latter will be performed by state parties in

accordance with their national law and those funds will be transferred to the

Court (see art. 109). Once the Court has ordered fines and forfeiture it may or

may not transfer it to the Trust Fund.567

Other contributions shall come from

external sources such as governments and international organizations. The Trust

Fund shall also be funded by voluntary contributions which must first be

approved by the Board of Directors.568

The Assembly of State Parties can also

decide to contribute to the Fund. According to Rule 76 and 22 of the Regulation

the Trust Fund is obliged to report annually to the Assembly of States Parties on

its activities and projects and on all offered voluntary contributions. The

Committee on Budget and Finance of the Assembly of States Parties is tasked

with examining the budget of the Trust Fund on a yearly basis and making

recommendations as to its best possible financial management. The Fund can

only incur obligations once it has the necessary budget. Considering the nature

of the crimes within the Court’s jurisdiction and the situations which it is

investigating at the moment, the ICC may face a huge range of victims,

including victims of sexual crimes.569

functional reparations scheme, the,Emory Int'l L. Rev., 17, 2003 , Ingadottir, Thordis,The

international criminal court: Recommendations on policy and practice: Financing, victims,

judges, and immunities, Transnational Pub Inc, 2003. P 122, see also Regulation 69. 567

Art. 79(2) Rome Statute states: `The Court may order money and other property collected

through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.´ 568

The Board shall refuse contributions which are not consistent with the goals and activities of

the Trust Fund. 569

The special UN Inquiry Commission led by Antonio Cassese has investigated violence in

Darfur, Sudan and has found that the violence including sexual violence amounts to crimes

against humanity with ethnic dimensions. With projects now active in northern Uganda and the

Democratic Republic of the Congo, the Trust Fund for Victims is making concrete differences in

the lives of an estimated 70,000 victim survivors. More information available at

http://trustfundforvictims.org/success-stories,

http://trustfundforvictims.org/sites/default/files/media_library/documents/pdf/TFV%20Program

me%20Progress%20Report%20Winter%202012Finalcompressed.pdf.


208

The Lubanga case is the first ICC case in which reparation principles

were laid down, including for women. Thomas Lubanga Dyilo (born 29

December 1960) has been convicted by the ICC for the war crime of enlisting

children under the age of fifteen; conscripting children under the age of fifteen;

and using children under the age of fifteen to participate actively in hostilities.

ICC Trial Chamber I, on 7 August 2012, issued its first decision on the

principles for victims' reparations for harm suffered as a consequence of the

crimes committed by Lubanga. The judges set out what the basis would be for

the reparations award, as well as what the process would look like to come to

the actual award. Trial Chamber I decided that the Trust Fund for Victims (TFV)

will collect reparations proposals from victims, which will then be approved by

the Chamber.570

Under the principle of “accessibility, Non-discrimination and

Consultation with Victims”, women's Initiatives for gender justice571

emphasize

the importance of including a gender-responsive approach in the process of

consulting with victims and survivors, as part of the wider formulation of a

reparations programme and it stresses that boys, girls, men and women can be

affected in widely different ways by the same crime, given the existing gender

inequalities in the region and the unequal obstacles faced by women and girls as

regards access to justice, information and public life.572

An important non-legal instrument that deals specifically with this right

is the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and

Reparation, adopted at the International Meeting on Women’s and Girls’ Right

to a Remedy and Reparation, held in Nairobi from 19 to 21 March 2007. The

Declaration affirms that the particular circumstances in which women and girls

are made victims of crimes and human rights violations in situations of conflict

require approaches specially adapted to their needs, interests and priorities. It

identifies basic principles related to women’s and girls’ right to a remedy and

reparations, and focuses on access to reparation and key aspects of reparation for

women and girls.

570

http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf. 571

The Women’s Initiatives for Gender Justice is an international women’s human rights

organisation that advocates for gender justice through the International Criminal Court (ICC)

and through domestic mechanisms, including peace negotiations and justice processes.

http://www.iccwomen.org/ 572

http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf, para 34.

209

International courts, such as ICC (The Trust Fund of the ICC), also dealt

with right to compensation in their jurisprudence emphasizing the responsibility

of perpetrators. The ICC can take action only if the states are unwilling or

unable to protect victims.573

However, especially for victims of sexual violence

it is still very unlikely to seek/obtain compensation before domestic courts in

many countries due to prevailing discrimination of women or lack of awareness

of gender issues.574

Even in the cases where victims are able to file law suits

against the responsible state before another Court, they will be confronted with

state immunity as one of the hardest procedural obstacles to overcome. Women

in particular often face normative and practical obstacles, which prevent them

from accessing the benefits of compensation programs. Therefore, International

law should provide women whose opportunities to achieve legal, social, political

and economic equality in society are still very limited the protection and

compensation to overcome their loss and suffering. Providing women with

compensation will contribute to achieve long-term goals for gender justice.

In concluding this part, it should be mentioned that the responsibility of

states to provide a proper protective system for victims or to prevent violence

against women in society remains controversial. International human rights

instruments rather focus on the responsibility of states to respond properly to

human rights violations. For instance, The United Nations General Assembly

Declaration on the Elimination of Violence against Women (1993), in its Article

4 (c), urges States to “exercise due diligence to prevent, investigate and, in

accordance with national legislation, punish acts of violence against women,

whether those acts are perpetrated by the State or private persons”. The third

report of the special rapporteur on violence against women, of 20 January 2006

to the Commission on Human Rights of the United Nations Economic and

Social Council, considered that there is a rule of customary international law

that “obliges States to prevent and respond to acts of violence against women

573

Article 17 Rome Statutes. 574

Jewkes, Rachel, Intimate partner violence: Causes and prevention,The Lancet, 359, 2002. p

361. Schwager, Elke, The right to compensation for victims of an armed conflict,Chinese journal

of international law, 4, 2005. p 424. CASE OF OPUZ v. TURKEY, Application no. 33401/02 ,

09/06/2009.para 125.


210

with due diligence.”575

In Velazquez-Rodriguez v. Honduras, the Inter-

American Court of Human Rights stated,

An illegal act which violates human rights and which is initially not

directly imputable to a State (for example, because it is the act of a private

person or because the person responsible has not been identified) can lead to

international responsibility of the State, not because of an act itself, but because

of the lack of due diligence to prevent the violation or to respond to it as

required by the Convention.576

The responsibility of states has also been mentioned in the Opuz Case,

The legal basis for the ultimate attribution of responsibility to a State

for private acts relies on State failure to comply with the duty to ensure human

rights protection, as set out in Article 1 § 1 of the American Convention on

Human Rights; The Inter-amercan court’s case-law reflects this principle by

repeatedly holding States internationally responsible on account of their lack of

due diligence to prevent human rights violations, to investigate and sanction

perpetrators or to provide appropriate reparations to their families.577

The Court then held (in para 125) the national authorities responsible for

failing to act with due diligence to prevent violence against women, including

violence by private actors, or to investigate, prosecute and punish such violence,

the State might be responsible for such acts.578

5.5 Conclusion

The history and evolution of international law demonstrates that while

states still have an important role in international law, individuals also have been

recognized as an important subject in this field. International law has been

influenced by two main factors, globalization and humanization, which

inevitably impact on the situation of individuals under international law. These

factors represent the fact that with increasing role of individuals, international

575

E/CN.4/2006/61. 576

Judgment of 29 July 1988, Inter-Am. Ct. H.R. (ser. C) No. 4, § 172. 577

CASE OF OPUZ v. TURKEY, Application no. 33401/02 , 09/06/2009.para 84. 578

Case of Opus v. Turkey, para 125.

211

law should provide proper mechanism to protect them not only in the context of

war, but also in peace time. Examples of this trend include: the First Optional

Protocol of the International Covenant on Civil and Political Rights, enabling

the Human Rights Committee to consider allegations from individuals

pertaining to violations of their civil and political rights; 579

and the Optional

Protocol to the ICESCR that enablesindividuals or groups of individuals, under

the jurisdiction of a State Party, to claim to be victims of a violation of any of

the economic, social and cultural rights set forth in the Covenant by that State

Party before the Committee on Economic, Social and Cultural Rights (CESCR).

At the European level, the ECtHR is a significant institution because any

person who claims a human rights violation can take a case to the Court (of

course, after domestic remedies are exhausted). Judgments finding violations are

binding on the States concerned and they are obliged to execute them. Although

it is limited to States parties of ECHR, it represents the intention of a high

number of countries to provide a super-national organization to protect human

rights.

In addition, the Istanbul convention (on preventing and combating

violence against women and domestic violence) requires state parties to provide

protection to women against violence during peacetime, which is actually a new

development. One of the convention goals is to promote international co-

operation beyond the regional level in order to protect women from different

types of violence.

These all are in fact representing the promising signs in international law

and proving the transformation process of international law to protect

individuals not only during war, but also in peacetime; which consequently

leads to establish international courts to provide enough assistance, and

protection for victims.

In addition, the powerful forces of globalization and humanization,

which transformed international law, have had significant impact on the sources

of law making in international law. The role of international organizations and

579

http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx.


212

NGOs is getting more important than before. Nowadays, soft law compared with

hard law has an indirect function to protect individuals that may lead to make

future international norms.

As a consequence of these developments, the idea of protecting victims

of crime is now clearly embedded within international standards and

jurisprudence. The idea that criminal law should constitute an adequate basis for

protecting victims should ensure that policymakers respond properly to rape

victimization. Rape is a sort of aggressive crime that needs international and

domestic protection. The victims have the right to be protected by the criminal

justice system, participate in the criminal proceeding without any fear and

danger and have the right to get redress in the best possible way. They have to

be able to provide their evidence before the courts and the criminal justice

system has to protect them from potential harm in this regard.

Since rape has various and serious impacts on victims it is suggested

that the international fora has to explicitly provide the best definition of this

crime and different characteristics of relative rights such as right to

compensation and right to provide evidence with all aspects of that right even

the different types of evidence that they can be presented in the courts.

Protection of victims against secondary victimization and redressing them in the

best way and finally their right to participate in criminal proceeding require to

recognize victims' right and provide separate facility and requirements for that

and oblige the member states to provide a particular protection of these victim.

213

6 Chapter 6: Implementation of international law within Iranian law

Chapter 6: Implementation of international law

within Iranian law

6.1 Introduction

This chapter returns to the Iranian legal system and analyzes Iran’s

international legal obligations with regard to rape or sexual violence. It also

seeks to answer the question of whether Iran is in breach of its obligations under

international human rights law in relation to the protection of women victims of

rape or sexual violence. In order to do so, the wording and current interpretation

of the relevant provisions enshrined in the human rights treaties to which Iran is

a party is examined. The activities of the UN human rights monitoring bodies

that have dealt with sexual violence and discrimination vis-à-vis women in Iran

are reviewed.

An analysis of rules on the incorporation of international law in to

Iranian law, and of the status of international law within Iranian law will,

Chapter 6: Implementation of international law within Iranian law

214

however, show that only a limited direct use can be made of international law in

Iran. The chapter concludes with reflections on the usefulness of international

law to victims of rape or sexual violence in Iran.

6.2 Application of international law at the domestic level

This section addresses the question of how international law and

domestic law interact: how does international law become a part of domestic

law, and what happens when international and domestic rules conflict.

Once a state is bound by a source of international law, the State needs to

comply. In general, a state that is bound by international instruments has to

employ the most comprehensive obligation or the highest standard. For instance,

article 55 ECHR sets out that “Nothing in this Convention shall be construed as

limiting or derogating from any of the human rights and fundamental freedoms

which may be ensured under the laws of any High Contracting Party or under

any other agreement to which it is a Party.”

Similarly, Article 41 CRC provides that nothing in the Convention shall

affect any provisions which are more conducive to the realization of the rights of

the child –either in the law of a state party or in international law in force in that

state.580

However, the relationship between international law and national law

(municipal law or domestic law as it is also called) is complex. International

legal obligations have two dimensions: the international dimension applies

among states themselves. Between states, international obligations apply

directly as soon as they come into being, e.g. as a consequence of the ratification

of a treaty or through customary law.581

However, the obligations have a different impact when it comes to the

domestic level. At the domestic level, countries deal differently (in their

domestic law) with regard to the status accorded to international obligations.

Some states consider international obligations superior to their domestic laws. In

580

Resolution 44/25 of 20 November 1989. 581

In the relation amongst states, treaties bind states vis-à-vis all other states that are party to the

treaty.

215

other countries, international obligations are considered equal to domestic law.

International obligations may only become part of domestic law upon

incorporation into the national legal system.

Generally, the theories of “Monism” and “Dualism” support these

various approaches to the relationship between international and domestic

law.582

According to the Monism theory, international law is automatically

integrated into the domestic legal order.583

In a number of domestic legal

systems based on monism, international and domestic rules have equal value,

but new law prevails over old law: this may main that a posterior domestic law

takes precedence over an international rule. For example, in Germany, treaties

have the same effect as legislation, and by the principle of lex posterior, only

take precedence over national legislation enacted prior to their ratification. On

the other hand, in other Monist systems, international law always takes

precedence over national law and a judge can declare a national rule invalid if it

contradicts an international legal obligation. This form of monism dictates that

national law that contradicts international law is invalid, even if it predates

international law.584

From a human perspective, this form of monism arguably is

preferable. For example, imagine a country that has accepted a human rights

treaty such as the International Covenant on Civil and Political Rights while

some of its national laws limit the freedom of the press. A citizen from that

country, who is under prosecution by his state for violating the national law, can

invoke the human rights treaty in a national court and request the judge to apply

this treaty and declare the national law invalid. As stated by G.J. Wiarda,

582

Biehler, Gernot,Procedures in international law, Springer, 2008.-Verlag Berlin Heidelberg,

P 312. 583

Kooijmans, Pieter Hendrik, Brus, Marcellinus Maria Theodorus Antonius and Blokker,

Nm,Internationaal publiekrecht in vogelvlucht, Wolters-Noordhof, 1994.p. 82. 584

Hans, Kelsen, Doctrina pură a dreptului,Bucureşti: Editura Humanitas, 2000.p. 388-389.


216

So when someone in Holland feels his human rights are being violated

he can go to a Dutch judge and the judge must apply the law of the Convention.

He must apply international law even if it is not in conformity with Dutch law.585

On the other hand, under dualism, international law and domestic law are

two separate systems and rules and principles of international law become

applicable only if they are transposed into domestic law. In a dualist system,

national judges never apply international law directly, only international law that

has been transposed into national law. As James Atkin and Baron Atkin

indicated,

International law as such can confer no rights cognisable in the

municipal courts. It is only insofar as the rules of international law are

recognized as included in the rules of municipal law that they are allowed in

municipal courts to give rise to rights and obligations.586

As Antonio Cassese points out, from a human rights perspective, if states

accept a human rights treaty for purely political reasons, and they do not want to

fully transform it into national law or to take a monist view on international law,

then the implementation of the treaty is very uncertain.587

Therefore, according

to his view, states that intend to fully implement their international human rights

obligations should either fully translate the treaty into their national law or adopt

a monist approach.

In any case, as Article 27 VCLT states, “A party may not invoke the

provisions of its domestic law as justification for its failure to perform a treaty.”

Even if at the domestic level, a posterior domestic law takes priority over an

international obligation, the State remains bound at the international level.

When the posterior domestic law conflicts with the international obligation, the

State is responsible for a violation of the treaty at the international level.

585

G.J. Wiarda, in Cassese, Antonio,International law in a divided world, Clarendon Press

1992.p 17. 586

James Atkin, Baron Atkin, in James Atkin, Baron Atkin,Akehurst's modern introduction to

international law, Harper Collins, 2002.p 45. 587

Antonio Cassese, International Law in a Cassese, Antonio,International law in a divided

world, Clarendon Press 1992. p 15.

217

At the international level, states may be bound by treaty provisions to

different degrees. Although it may be desirable that states become party to the

full text of a convention, this is often not the case, as treaties may permit states

to limit the application of some treaty provisions. States may be entitled to enter

reservations at the time when they become a party to a treaty. Reservations

reduce the effects of certain treaty obligations; they may render them non-

binding or limit their scope.588

Reservations shall not, however, contradict the

object and the purpose of the treaty,589

and may need to comply with specific

requirements spelled out in the treaty.

The 1969 Vienna Convention on the Law of Treaties (VCLT) defines a

reservation as a unilateral statement, however phrased or named, made by a

State, when signing, ratifying, accepting, approving or acceding to a treaty,

whereby it purports to exclude or to modify the legal effect of certain provisions

of the treaty in their application to that State. (Article 2 (1)(d)). In fact, a

reservation allows the state to become a party to the treaty, while excluding the

legal effect of one or more specific provisions in the treaty to which it objects.

This definition is a codification of customary international law and therefore it is

binding on states which are not party to the Vienna Convention as

well.590

Articles 19–23 of the Vienna Convention detail the procedures relating

to reservations. According to article 19 a state may not formulate a reservation if:

1: The reservation is prohibited by the treaty; 2: The treaty provides that only

specified reservations, which do not include the reservation in question, may be

made; 3: In cases not falling under (1) or (2), the reservation is incompatible

with the object and purpose of the treaty. However, it is not always clear what

the object and purpose of the treaty is, especially when treaties are long and

complex.

588

With regard to human rights, many HR instruments allow the restriction of some rights for

reasons of national security, public order; public health; or public morality. 589

See Human right committee, general comments on reservation to human rights treaties, p

166, Goodman, Ryan, Human rights treaties, invalid reservations, and state consent,American

Journal of International Law, 2002.p 531. 590

H. von Heinegg, in: Ipsen, Knut, Menzel, Eberhard and Epping, Volker,Völkerrecht, CH

Beck München, 2004.P 167. A valid reservation makes it possible for states to reject the

application of individual regulations of a treaty on itself and at the same time join the treaty.

Several Islamic states have used this right when signing and ratifying the human rights

instruments.


218

Reservations to human rights treaties are contentious; however, a full

discussion of the debate falls outside the scope of this study.591

Some human

right conventions contain special provisions on reservations; others remain silent

on the issue.

The former UN Commission on Human Rights (now the Human Rights

Council) has stated that reservations to human rights treaties should be

formulated “as precisely and narrowly as possible” (Resolution

1998/9).592

Article 57(1) ECHR prohibits reservations “of a general character.”

The European Court of Human Rights discussed the issue of general

reservations in Belilos v. Switzerland (1988)593

and further, in Loizidou v.

Turkey (1995)594

, the Court held that,

591

For more information please see: Baylis, Elena A, General comment 24: Confronting the

problem of reservations to human rights treaties,Berkeley J. Int'l L., 17, 1999 , Goodman, Ryan,

Human rights treaties, invalid reservations, and state consent,American Journal of International

Law, 2002 , Lijnzaad, Elizabeth,Reservations to un-human rights treaties: Ratify and ruin?, 38,

Martinus Nijhoff Publishers, 1995 , Mccall-Smith, Kasey Lowe, Reservations to human rights

treaties, (2012), , Meron, Theodor,Human rights and humanitarian norms as customary law,

Clarendon Press ^ eOxford Oxford, 1989 , Neumayer, Eric, Qualified ratification: Explaining

reservations to international human rights treaties,The Journal of Legal Studies, 36, 2007. 592

U.N. Doc. E/CN.4/1998/9, 1998. 593

The reservations were made in respect of Articles 5 and 6 (art. 5, art. 6) - the first one was

withdrawn in 1982 -, while the declarations related to paragraphs 1 and 3 (c) and (e) of Article 6

(art. 6-1, art. 6-3-c, art. 6-3-e).

http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?CL=ENG&CM=5&NT=005&

VL=1&MA=999&PO=SWI.

Reservation contained in the instrument of ratification, deposited on 28 November 1974 - Or. Fr.

- and withdrawn by letter from the Head of the Federal Department for Foreign Affairs, dated 26

January 1982, with effect from 1 January 1982

The provisions of Article 5 of the Convention shall not affect the operation of the cantonal

legislation authorising the detention of certain categories of persons by decision of an

administrative authority or cantonal provisions governing the procedure for placing a child or

ward in an institution in accordance with federal legislation on paternal authority or

guardianship (Articles 284, 386, 406 and 421.13 of the Swiss Civil Code).

Reservation contained in the instrument of ratification, deposited on 28 November 1974 - Or. Fr.

- and withdrawn by a letter from the Federal Department of Foreign Affairs of Switzerland,

dated 24 August 2000, registered at the Secretariat General on 29 August 2000 - Or. Fr.

The rule contained in Article 6, paragraph 1, of the Convention that hearings shall be public

shall not apply to proceedings relating to the determination of civil rights and obligations or of

any criminal charge which, in accordance with cantonal legislation, are heard before an

administrative authority.

219

If substantive or territorial restrictions were permissible under these

provisions, Contracting Parties would be free to subscribe to separate regimes

The rule that judgment must be pronounced publicly shall not affect the operation of cantonal

legislation on civil or criminal procedure providing that judgment shall not be delivered in

public but notified to the parties in writing.

Interpretative declaration contained in the instrument of ratification, deposited on 28 November

1974 - Or. Fr.

The Swiss Federal Council considers that the guarantee of fair trial in Article 6, paragraph 1, of

the Convention, in the determination of civil rights and obligations or any criminal charge

against the person in question is intended solely to ensure ultimate control by the judiciary over

the acts or decisions of the public authorities relating to such rights or obligations or the

determination of such a charge. [Note by the Secretariat:: The European Court of Human Rights

held that this statement constitutes a reservation which does not satisfy the requirements of

Article 64 (Article 57 since the entry into force of Protocol No 11). It must therefore be held to

be invalid (Belilos case, judgment of 29 April 1988, Series A No 132)]. 594

On 28 January 1987 the Government of Turkey deposited the following declaration with the

Secretary General of the Council of Europe pursuant to Article 25 (art. 25) of the Convention

"The Government of Turkey, acting pursuant to Article 25 (1) (art. 25-1) of the Convention for

the Protection of Human Rights and Fundamental Freedoms hereby declares to accept the

competence of the European Commission of Human Rights and to receive petitions according to

Article 25 (art. 25) of the Convention subject to the following:

(i) the recognition of the right of petition extends only to allegations concerning acts or

omissions of public authorities in Turkey performed within the boundaries of the territory to

which the Constitution of the Republic of Turkey is applicable; (ii) the circumstances and

conditions under which Turkey, by virtue of Article 15 (art. 15) of the Convention, derogates

from her obligations under the Convention in special circumstances must be interpreted, for the

purpose of the competence attributed to the Commission under this declaration, in the light of

Articles 119 to 122 of the Turkish Constitution; (iii) the competence attributed to the

Commission under this declaration shall not comprise matters regarding the legal status of

military personnel and in particular, the system of discipline in the armed forces; (iv) for the

purpose of the competence attributed to the Commission under this declaration, the notion of a

"democratic society" in paragraphs 2 of Articles 8, 9, 10 and 11 (art. 8-2, art. 9-2, art. 10-2, art.

11-2) of the Convention must be understood in conformity with the principles laid down in the

Turkish Constitution and in particular its Preamble and its Article 13; (v) for the purpose of the

competence attributed to the Commission under the present declaration, Articles 33, 52 and 135

of the Constitution must be understood as being in conformity with Article 10 and 11 (art. 10, art.

11) of the Convention. This declaration extends to allegations made in respect of facts, including

judgments which are based on such facts which have occurred subsequent to the date of deposit

of the present declaration. This declaration is valid for three years from the date of deposit with

the Secretary General of the Council of Europe." For more information please see

http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?PO=GRE&NT=005&MA=99

9&CV=0&NA=Ex-25&CN=999&VL=1&CM=5&CL=ENG and

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57920#{%22itemid%22:[%22001-

57920%22]}. and

http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?PO=TUR&NT=005&MA=99

9&CV=0&NA=Ex-25&CN=999&VL=1&CM=5&CL=ENG .


220

of enforcement of Convention obligations. Such a system would not only

seriously weaken the role of the Court but would also diminish the effectiveness

of the Convention as a constitutional instrument of European public order

(order public).595

The Human Rights Committee has dealt with this issue in General

Comment 24 on issues relating to reservations made upon ratification or

accession to the Covenants or the Optional Protocols, where it stressed that,

Reservations must be specific and transparent. Reservations may thus

not be general, but must refer to a particular provision of the Covenant and

indicate in precise terms its scope in relation thereto.596

In addition, according to Human Rights Committee reservations that

offend peremptory norms would not be compatible with the object and purpose

of the Covenant.597

The Human Rights Committee specifically distinguished

between reservation to human rights treaties, which are for the benefit of

persons within their jurisdiction, and other treaties. Accordingly, provisions in

the Covenant that represent customary international law (and a fortiori when

they have the character of peremptory norms) may not be the subject of

reservations.598

Then the committee noted that the reservation against the object

595

Case of loizidou v. turkey (preliminary objections), (application no. 15318/89).

http://www.unhcr.org/refworld/country,ECHR,,CYP,,402a07c94,0.html, The Inter-American

Court has dealt with the issue of reservations in its Advisory Opinion No. 2 on the ‘Effect of

Reservations on the Entry into Force of the American Convention on Human Rights’ and

Advisory Opinion No. 4 on ‘Proposed Amendments to the Naturalization Provisions of the

Constitution of Costa Rica’, stating that reservations may not lead to a result that weakens the

system of protection established by the Convention. 596

CCPR/C/21/Rev.1/Add.6, 4November 1994, para. 19. How, as a matter of general principle,

a State can be bound by a provision which it has expressly rejected or limited is unclear and

seems at odds with any notion of state sovereignty. That said, it is not clear what an independent

monitoring body should do faced with an incompatible reservation. See generally, the reports of

the Rapporteur of the ILC on Reservations to Treaties (Professor Alain Pellet), which deal with

the generality of treaties, and Sub-Commission on the Promotion and Protection of Human

Rights, Final Working Paper on Reservation to Human Rights Treaties, E/CN.4/Sub.2/2004/42,

19 July 2004. 597

CCPR/C/21/Rev.1/Add.6,1994, Para 8. 598

Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject

persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons

of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and

221

and purpose of the Covenant is not allowed i.e., reservation to article 1 denying

people the right to determine their own political status and to pursue their

economic, social and cultural development would be incompatible with the

object and purpose of the Covenant. Equally, a reservation to the obligation to

respect and ensure the rights, and to do so on a non-discriminatory basis (article

2 (1)) would not be acceptable. Nor may a State reserve an entitlement not to

take the necessary steps at the domestic level to give effect to the rights of the

Covenant (article 2 (2)).599

Regarding reservations to the non-derogable provisions of the Covenant,

the committee expressed that “while there is no hierarchy of importance of

rights under the Covenant, the operation of certain rights may not be suspended,

even in times of national emergency.” This point highlights the importance of

non-derogable rights. Finally, after the Committee mentioned some reasons for

certain rights being made non-derogable600

, it emphasizes “while there is no

automatic correlation between reservations to non-derogable provisions and

religion, to presume a person guilty unless he proves his innocence, to execute pregnant women

or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of

marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture,

profess their own religion, or use their own language. And while reservations to particular

clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not

be. 599

CCPR/C/21/Rev.1/Add.6 ,1994, Para 9. 600

The Committee has further examined whether categories of reservations may offend the

"object and purpose" test. In particular, it falls for consideration as to whether reservations to the

non-derogable provisions of the Covenant are compatible with its object and purpose. While

there is no hierarchy of importance of rights under the Covenant, the operation of certain rights

may not be suspended, even in times of national emergency. This is the great importance of non-

derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the

Covenant, have in fact been made non-derogable. One reason for certain rights being made non-

derogable is because their suspension is irrelevant to the legitimate control of the state of

national emergency (for example, no imprisonment for debt, in article 11). Another reason is

that derogation may indeed be impossible (as, for example, freedom of conscience). At the same

time, some provisions are non-derogable exactly because without them there would be no rule of

law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to

be struck between the interests of the State and the rights of the individual in times of emergency,

would fall in this category. And some non-derogable rights, which in any event cannot be

reserved because of their status as peremptory norms, are also of this character - the prohibition

of torture and arbitrary deprivation of life are examples.


222

reservations which offend against the object and purpose of the Covenant, a

State has a heavy onus to justify such a reservation.”601

Concerning the reservation to human right treaties such as ICCPR

another major point has been highlighted by Human Rights Committee. In its

general comment 24 it mentioned that

“12. The intention of the Covenant is that the rights contained therein

should be ensured to all those under a State party's jurisdiction. To this end

certain attendant requirements are likely to be necessary. Domestic laws may

need to be altered properly to reflect the requirements of the Covenant; and

mechanisms at the domestic level will be needed to allow the Covenant rights to

be enforceable at the local level. Reservations often reveal a tendency of States

not to want to change a particular law. And sometimes that tendency is elevated

to a general policy. Of particular concern are widely formulated reservations

which essentially render ineffective all Covenant rights which would require any

change in national law to ensure compliance with Covenant obligations. No real

international rights or obligations have thus been accepted. And when there is

an absence of provisions to ensure that Covenant rights may be sued on in

domestic courts, and, further, a failure to allow individual complaints to be

brought to the Committee under the first Optional Protocol, all the essential

elements of the Covenant guarantees have been removed.”602

In addition, another significant point has been explained by the Human

Rights Committee. It expressed that The Covenant consists not just of the

specified rights, but of important supportive guarantees, and reservations

designed to remove these guarantees are thus not acceptable. It illustrated more

that “Thus, a State could not make a reservation to article 2, paragraph 3, of the

Covenant, indicating that it intends to provide no remedies for human rights

violations.” 603

Some instruments, such as CEDAW, have been subject to many

reservations. For example, when Iraq ratified CEDAW it registered a reservation

601

CCPR/C/21/Rev.1/Add.6 ,1994, Para 10. 602

CCPR/C/21/Rev.1/Add.6, 4November 1994, Para 12. 603

CCPR/C/21/Rev.1/Add.6 ,1994,Para 11.

223

that its ratification “shall not mean that the Republic of Iraq is bound by the

provisions of article 2, paragraphs (f) and (g), of article 9, paragraphs 1 and 2,

nor of article 16 of the Convention.” Because Article 2 of CEDAW deals with

policy measures on combating discrimination, many states objected to Iraq’s

reservation because they deemed it incompatible with the object and purpose of

the treaty.604

The final point in this section is that according to Article 20(5) VCLT,

other states are enabled to object to a reservation. As a rule, a reservation is

considered accepted by another state party if that state party has raised no

objection within twelve months after it has been notified of the reservation.

The effect of an objection to a reservation is a matter of huge debate that

this thesis is not going to discuss it in depth. However, very briefly, when states

make an objection to a reservation, what happens in practice according to the

VCLT regime is that the state which made the reservation is bound by the treaty,

but not by the part on which it made the reservation.605

What assumed from

article 20 paragraph 4(b) and article 21 paragraph 3 VCLT606

is that if an

objecting state is very strong about a reservation, the whole treaty is not in effect

between the reserving state and itself. It also possible when another state objects

against a reservation, the provision on which the reservation was made does not

apply between the two states.607

This rarely happens, thus the reservation stands,

whether it passed the legality test or not. 608

On the other hand, according to

some scholars such as Anthony Aust who are more strict in this regard, “if one

604

In the face of this situation, the independent monitoring bodies, such as the CEDAW

Committee and the Human Rights Committee, have taken a view on the validity of reservations,

a practice not considered by the VCLT. Although the competence of these bodies in this regard

has been debated, it seems logical to conclude that their competence derives from their functions.

606

For more information please see: Goodman, Ryan, Human rights treaties, invalid

reservations, and state consent,American Journal of International Law, 2002 , Klabbers, Jan,

Accepting the unacceptable? A new nordic approach to reservations to multilateral

treaties,Nordic Journal of International Law, 69, 2000. Advisory Opinion OC-2/82, September

24, 1982, Inter-Am. Ct. H.R. (Ser. A) No. 2 (1982), The Effect of Reservations on the Entry

Into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion

OC-2/82, September 24, 1982, Inter-Am. Ct. H.R. (Ser. A) No. 2 (1982). 607

VCLT ,Article 21 Para 3. 608

Klabbers, Jan, Accepting the unacceptable? A new nordic approach to reservations to

multilateral treaties,Nordic Journal of International Law, 69, 2000.


224

or more contracting states have objected to the reservation as being prohibited,

the reserving state must decide whether or not it is prepared to be a party

without the reservation; and until it has made its position clear it cannot be

regarded as a party.”609

6.3 The status of International law in Iranian legal system

This section discusses how the Iranian Constitution and legislation deal

with international law; the relation between international regulation and

domestic rules, and the effects of international treaties at the domestic level will

be explained as well.

6.3.1 International Treaty Law

The status of international treaties in Iranian law is still a matter of

debate in post-revolutionary Iran.610

Iran has ratified some relevant human rights

and international humanitarian law treaties that are listed in the Table below.

Iran has ratified a number of human rights treaties without any

reservation. The exceptions are the Convention on the rights of child, the

Convention on the right of persons with disabilities and Convention against the

Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The latter treaties

were ratified by Iran after the Islamic revolution, all with a reservation that Iran

will not apply any provisions of the relevant convention that are incompatible

with Islamic law and/or national law. Taking into account the previous section

on the validity of reservations, it should be noted that the legitimacy of this type

of reservation is contested, and an issue of contention between Iran and other

States and the treaty monitoring bodies. It should be kept in mind that Iran has

also not ratified quite a number of human rights treaties at all.

609

Aust, Anthony,Modern treaty law and practice, Cambridge University Press, 2000.p119. 610

See, regarding the process of reception of international norms in the Iranian legal system,

Beigzadeh, Ebrahim, “Intégration des norms internationales en droit iranien,” in Delmas-Marty,

Mireille,Criminalité économique et atteintes à la dignité de la personne, VI, Europe- Pays d

´Islam, Les Editions de la MSH, 1999. pp 286-298.

225

Table 1: Iran ratification of international treaties

Treaty

The date of

signature

The date of

Ratification/

Accession

Reservations

1 Genocide Convention 8 Dec 1949 14 Aug 1956 No

2 Geneva Conventions 8 Dec 1949 20 Feb 1957 No

3

Supplementary

Convention on the

Abolition of Slavery, the

Slave Trade, and

Institutions and Practices

Similar to Slavery

30 Dec 1959 No

4

Convention against

Discrimination in

Education

17 Jul 1968 No

5

International Covenant

on the elimination of all

forms of racial

discrimination

8 Mar 1967 29 Aug 1968 No

6

International Convention

for the Suppression of

Unlawful Seizure of

Aircraft

16 Dec 1970 25 Jan 1972 No

7

The Convention for The

Suppression of Unlawful

Acts Against the Safety

of Civil Aviation

10 Jul 1973 No

8


on Civil and Political

Rights

4 Apr 1968 24 Jun 1975 No

9

Optional Protocol to the



Rights

No No No

10

Second Optional

Protocol to the



Rights, aiming at the

abolition of the death

penalty

No No No

11 International Covenant 4 Apr 1968 24 Jun 1975 No


226

on Economic, Social

and Cultural Rights

12



on Economic, Social and

Cultural Rights

No No No

13

Convention Relating to

the Status of refugees

and its protocol

28 Jul 1976 No

13

Convention on Offences

and Certain Other Acts

Committed on Board

Aircraft

28 Jun 1976 29 Sep 1976 No

15


on the Prevention and

Punishment of Crimes

Against International

Protected Persons

12 Jul 1978 No

16


on the Suppression and

Punishment of the Crime

of Apartheid

17 Apr 1985 No

17

Convention against the

Illicit Traffic in Narcotic

Drugs and Psychotropic

Substances

20 Dec 1988 7 Dec 1992

"The Government of

the Islamic Republic of

Iran wishes to express

reservation to article 6,

paragraph 3, of the

Convention, since this

provision is

incompatible with our

domestic law.”

"The Government

furthermore wishes to

make a reservation to

article 32, paragraphs 2

and 3, since it does not

consider itself bound to

compulsory jurisdiction

of the International

Court of Justice and

feels that any disputes

arising between the

Parties concerning the

interpretation or

application of the

Convention should be

227

resolved through direct

negotiations by

diplomatic means."

18

Convention of the Rights

of the Child

5 Sep 1991 13 Jul 1994

“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.”

19


Convention on the

Rights of the Child on

the Sale of Children,

Child Prostitution and

Child Pornography

26 Sep 2007

No

20

Convention on the right

of persons with

disabilities

23 Oct 2009

“... with regard to

Article 46, the Islamic

Republic of Iran

declares that it does not

consider itself bound

by any provisions of

the Convention, which

may be incompatible

with its applicable

rules.”

21

Convention for the

Suppression of the

Traffic in Persons and of

the Exploitation of the

Prostitution of Others

16 Jul 1953 No No

22

Convention concerning

Forced or Compulsory

Labour

10 Jun 1957 No No

23 Abolition of Forced

Labour Convention 13 Apr 1959 No No

24

Discrimination

(Employment and

Occupation) Convention

30 Jun 1964 No No

25 Vienna Convention on

the Law of Treaties 23 May 1969 No No


228

26 Equal Remuneration

Convention 10 Jun 1972 No No

27 Employment Policy

Convention 10 Jun 1972 No No

28

United Nations

Convention against

Transnational Organized

Crime

12 Dec 2000 No No

29

Rome Statute of the

International Criminal

Court

31 Dec 2000 No No

30

The Convention

concerning the

Prohibition and

Immediate Action for

the Elimination of the

Worst Forms of Child

Labour

08 May 2002 No No

31


Convention on the

Rights of the Child on

the involvement of

children in Armed

Conflict

21 Sep 2010 No No

32

Convention against

Torture and Other Cruel,

Inhuman or Degrading

Treatment or

Punishment

No No No

33

International

Convention on the

Protection of the Rights

of All Migrant Workers

and Members of Their

Families

No No No

34


for the Protection of All

Persons from Enforced

Disappearance

No No No

35

Protocol to Prevent,

Suppress and Punish

Trafficking in Persons,

Especially Women and

Children,

supplementing the

No No No

229

Some international treaties that were ratified and incorporated have

influenced the Iranian legislator, particularly in the area of criminal law. For

example, the law governing drug trafficking in Iran is strongly influenced by

international conventions. According to the law on narcotic drugs, not only the

illicit trafficking in narcotic drugs involving any production, manufacturing,

extraction, preparation, offering for sale, delivery on any terms, etc., was made

criminal, but also the consumption of narcotic drugs was prohibited. It should be

mentioned that Iran ratified and implemented the Conventions on Narcotic

Drugs of 1961 and 1988. Other conventions that lead to criminalization at the

United Nations

Convention against


Crime Preamble,

supplementing the

United Nations

Convention against


Crime

36

Protocol against the

Smuggling of Migrants

by Land, Sea and Air,

supplementing the

United Nations

Convention against


Crime

No No No

37

Convention on the

Elimination of All

Forms of Discrimination

against Women

No No No

38


Occupational Safety and

Health and the Working

Environment

No No No

39 Convention relating to

the Status of Refugees No No No

40


Occupational Safety and

Health and the Working

Environment

No No No


230

domestic level include the Convention for The Suppression of Unlawful Acts

Against the Safety of Civil Aviation and the Convention on Offences and

Certain Other Acts Committed on Board Aircraft. The prohibition of harmful

conducts against cultural heritage was influenced by international

conventions611

such as the UNESCO convention concerning the protection of the

world cultural and natural heritage.612

6.3.2 Legal effect of international treaties in domestic law

For the purpose of this chapter, it is essential to be aware of the legal

status of international law within the Iranian legal system. According to Article

77 of the Iranian Constitution (IC), international treaties, protocols, contracts,

and agreements must be approved by the Islamic Consultative Assembly

(Parliament).

The Sharia is a source of law making in Iran. According to article 4 IC613

,

Islam is the source for any legislation along with the constitution itself.

Therefore, the parliament is not allowed to enact laws that are contrary to Islam

or to the constitution. The Guardian Council guarantees this conformity. Thus,

the rules of parliament become binding following the approval issued by the

Council of Guardians and the signature of the President (Article 125 of the

Constitution). Conflicts between Parliament and the Guardian council are dealt

with by the Exigency Council614

under Article 112 of IC.

611

Mahmoudi, Firouz, On criminalization in iran (sources and features),European Journal of

Crime Criminal Law and Criminal Justice, 10, 2002.p 52. 612

Convention concerning the Protection of the World Cultural and Natural Heritage Paris, 16

November 1972. 613

Article 4 “All civil, penal financial, economic, administrative, cultural, military, political, and

other laws and regulations must be based on Islamic criteria. This principle applies absolutely

and generally to all articles of the Constitution as well as to all other laws and regulations, and

the fuqaha' of the Guardian Council are judges in this matter”. 614

Article 112 : Upon the order of the Leader, the Nation's Exigency Council shall meet at any

time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be

against the principles of Shariah or the Constitution, and the Assembly is 'unable to meet the

expectations of the Guardian Council. Also, the Council shall meet for consideration on any

issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in

this Constitution. The permanent and changeable members of the Council shall be appointed by

231

Given the role of the Guardian Council, international obligations need to

comply with the criteria of Islamic law and constitution. The Islamic state can

only ratify “un-Islamic” international standards by virtue of the interest of the

Islamic system (or public interest) as a necessity.615

Concerning the domestic effects of international treaties, article 77 of the

Constitution and article 9 of the Civil Code616

stipulate that treaties, conventions,

agreements and, in general, all international instruments have the force of law

and become binding in the country after they are incorporated through the

above- mentioned process (Ratified by the Islamic Consultative Assembly,

approved by the Council of Guardians and signed by the President).617

Treaty

provisions that have been confirmed through this process have the same rank as

regular parliamentary laws.618

Consequently, it is in principle possible to invoke

provisions of international treaties before domestic courts. The Iranian judiciary

explicitly confirmed this finding particularly concerning the International

Covenant on Civil and Political Rights.619

The “legal department of the

judiciary”, which comprises a number of highly qualified judges, has issued an

the Leader. The rules for the Council shall be formulated and approved by the Council members

subject to the confirmation by the Leader. 615

Maslahat-e Nezam - Articles 110 and 112 of the Constitution. 616

Article 9 of Iranian Civil Code states “Treaty regulation which has been concluded between

Iran and other states according to the constitution shares the force of law”. 617

Badrian, Fakhreddin,Qānun-e madani /the civil code of iran, M.A.R. Taleghany, 2001. 618

Ziyaye Bigdeli, Mr,Public international law, hoquq-e bein’ol mellal-e omumi Publication

Gnjeh Danesh, Tehran, ISBN, 2007.P 89, Ramin Moschtaghi Ed, A. Von Bogdandy and R.

Wolfrum, The relation between international law, islamic law and constitutional law of the

islamic republic of iran – a multilayer system of conflict,Max Planck Yearbook of United

Nations Law, 13, 2009. P 387, also the elaboration on the I.R. Iran, Doc. HRI/CORE/1/Add. 106

of 15 July 1999, Para 79. 619

Consideration of Reports Submitted by States Parties under article 40 of the Covenant: Iran,

GAOR, Human Rights Committee, 46th Sess., 1193 Meeting; Doc. CCPR/C/SR. 1193 (1992) of

29 October 1992, 15; Harland, Christopher, The status of the international covenant on civil and

political rights (iccpr) in the domestic law of state parties: An initial global survey through un

human rights committee documents,Human Rights Quarterly, 2000. Advisory Opinion No.

7/1669 of the Legal Department of the Iranian Judiciary of 19 October 1992; regarding this

Advisory Opinion also the elaboration of the I.R. Iran of 15 July 1999, Doc. HRI/CORE/1/Add.

106, Para. 82; also Ziyaye Bigdeli, Mr,Public international law, hoquq-e bein’ol mellal-e omumi

Publication Gnjeh Danesh, Tehran, ISBN, 2007. P 74, cf. the Iranian delegate Hossein Mehrpour

in front of the Committee for the Elimination of Racial Discrimination, Doc. CERD/C/SR.1597

of 29 September 2003, Para. 51; M. Nowak, U.N. Covenant on Civil and Political Rights, 2005,

59.


232

advisory opinion (No. 7/1669 dated 19 October 1992) arguing “direct reference

to provisions of international instruments may be made in judicial

proceedings”.620

The same position is also taken in the Core Document, forming

part of the reports of States Parties, Islamic Republic of Iran in 1999 in part E.

on “Invoking international human rights instruments in domestic judicial

authorities”. As explained in Para 81 and 82,

According to article 77 of the Constitution and article 9 of the Civil

Code, the above-mentioned international instruments influence legislation and

the implementation of laws. The practice of ordinary courts and the Supreme

Court in the future will establish a precedent concerning whether an individual

can invoke provisions of the Covenant in legal proceedings. … The Supreme

Court is the ultimate judicial authority for establishing judicial practice and will

establish a uniform practice. Nevertheless, the legal department of the

judiciary …arguing that direct reference to provisions of international

instruments may be made in domestic judicial proceedings.621

In a report to the Committee on the Elimination of all forms of Racial

Discrimination, Mr. Mehrpour (the Iranian representative) stated that the

Convention had been approved by the previous Senate and national Congress

and in the opinion of the legal experts he had consulted; its provisions could be

directly invoked before and by the courts. In a similar vein, a representative of

Iran to the CRC Committee stated that "Parliament had a legal committee

composed of 20 Jurists and judges who were fully acquainted with the

Convention, which had been translated into Farsi and that 'the Convention was

applied by both parliamentarians and the courts.” 622

620

See UN Doc.HRI/CORE/1/Add.106, 15 July 1999, Core Document, forming part of the

reports of States Parties: Islamic Republic of Iran, Para 82. 621

In Paragraph 80 it says that “… according to article 77 of the Constitution and article 9 of

the Civil Code, treaties, conventions, agreements and, in general, all international instruments

that have been ratified by the Islamic Consultative Assembly, approved by the Council of

Guardians and signed by the President become binding and have the force of law in the country.

International human rights instruments that have been approved by the Islamic Consultative

Assembly also become binding”.

http://www.unhchr.ch/tbs/doc.nsf/0/bb5e6edae249b576802567d10033a0bb?Opendocument

622 CRC/C/SR.1016, 28 January 2005, para43, As early as 2000, Iranian delegates to the CRC

Committee have proclaimed article 9 of the Iranian Civil Code stipulates that when Iran accedes

233

Although the delegation provided no details on when the international

human rights instruments were used domestically, the CRC and the ICCPR have

been applied in several cases in Iranian courts. In a 2004 case623

before one of

the General Courts of Shushtar624

where a child brought a claim against another

child of eight years of age for intentional bodily harm, the Court issued a verdict

of not guilty due to a lack of evidence and the inability to ascertain the offence.

While doing so, the Court referred to a number of Iranian laws as well as to

Article 40(2) (a) of the Convention on the Rights of the Child.625

Abiad argues

that the reference to the Convention in this case was made to show that the

Iranian judiciary does use the CRC and to avoid further criticism on this front.626

In another 2004 case before one of the branches of the General Court of

Shushtar627

, a number of defendants were charged with (a) disobedience, and (b)

insulting Government officials while on duty. Among the defendants was a

student of 18 years of age charged only with disobedience. His father was also

among the defendants and was found guilty of all charges against him. While

the 18 year old and two other defendants were charged with disobedience, they

were not charged with “insulting government officials” due to “the lack of

jurisprudential and legal evidence and that the charge (insulting government

officials) is not ascertained”. When reaching this judgment, the Court made

explicit mention of Article 14(2) of the ICCPR which protects the presumption

of innocence.628

The same article of the ICCPR was invoked by Branch Two of

the General Court of Shushtar in 2004”629

related to “Insult and obtrusion”, and

to an international instrument, its provisions may be invoked directly in the Court,

CRC/C/SR.617, 14 July 2000, para 4. 623

Case No: 2629,1,82K, Judgment No: 2603,82, Date of Issue: 1410/82(04/012004). 624

Shushtar is a city in and the capital of Shushtar County, Khuzestan Province, Iran, Khuzestan

Province (Persian: Ostān-e Khūzestān) is one of the 31 provinces of Iran. It is in the southwest

of the country, bordering Iraq's Basra Province and the Persian Gulf. Its capital is Ahvaz and

covers an area of 63,238 km². 625

CRC Article 40(2)(a): No child shall be alleged as, be accused of, or recognized as having

infringe the penal law by reason of acts or omissions that were not prohibited by national or

international law at the time they were committed; 626

Abiad, Nisrine, Human rights before the courts in muslim states,J. Islamic St. Prac. Int'l L., 5,

2009. 627

Case No: 106,1,83K, Judgment No: 106,83, Date of Issue: 24/1/83 (131/04/2004) 628

ICCPR, Article 14(2): Everyone charged with a criminal offence shall have the right to be

presume innocent until proved guilty according to law. 629

Case No: 131,2,83K, Judgment No: 127,83, Date of Issue: 10/31/83 (31/05/2004).


234

several times before Branch One of the General Court of Shushtar in 2004 in

cases related to “theft”630

, “disturbing the order in court”631

,''forcible

occupation”632

, and, “bodily harm by bullet”633

. In the latter case, despite the

gravity of the offence, the Court found that there was “insufficient evidence”

and issued a verdict of not guilty.

The Penal Courts of Iran have also made use of the ICCPR as evidenced

by a case before Branch 102 of the Penal Court of Shushtar in 2004.634

In this

case, several defendants between the ages of 17 and 26 were charged with

disturbing the order at the Police Station 12, Shushtar by creating tumult and

brawl, driving a geared motorcycle without license and disobeying the

Government officials. While the first and second defendants were found guilty

of disturbing the order and driving without a license, when it came to the

offence of disobedience, the Courts stated that the offence 'is not in a form that

can be imagined being committed by the Defendants, therefore in this regard

due to non-ascertainment of the offence being committed the Court issued a

non-guilty verdict. The Court cited Article 14 (2) of the ICCPR protecting the

right to be presumed innocent.635

The judicial protection of human rights through the use of international

human rights law "is a subject of great importance and is relevant to countries

all over the world”.636

Although the above- mentioned examples demonstrate

the possibilities of invoking international law at the domestic level in Iran, this

has not happened in rape cases, because the criminalization of rape and its

punishment are completely based on Islamic criminal law – making it difficult

for victims to rely on international law before domestic courts. It is also related

to the fact that international rules are not implemented very well in Iran. In

addition, the problem with invoking international law in rape cases lies not only

630

Case No: 1577,1,83K, Judgment: 1558,83, Date of Issue: 2/6,183 (24/08/2004). 631

Case No: 1454,1,83K, Judgment No: 1485,83, Date of Issue: 15/7/83 (07/10/2004). 632

Case No: 1601,1,83K, Judgment: 1584,83, Date of Issue: 5/9/83 (26/11/2004). 633

Case No:921,1,83K, Verdict No: 1266,83, Date of Issue: 10/5/83 (01,108/2004). 634

Case No:74,102,83K, Judgment: 60,83, Date of Issue: 25/5/83 (16/08/2004). 635


2009. 636

Gibney, Mark and Frankowski, Stanisław,Judicial protection of human rights: Myths of

reality?, Greenwood Publishing Group, 1999.

235

in the Islamic rules dealing with rape, but also in the legal culture that prevails

within the domestic courts. The legal culture does not encourage judges to apply

international rules, to which Iran is party to, or to interpret Islamic rules broadly,

even if there is no conflict between international and Islamic law (when

interpreted properly), and even if the rules are of procedural rather than of a

substantive nature. As it has been mentioned in the section of application of

international law, according to the Human Rights Committee a State that does

not accept that victims of human rights violations invoke the rights in the

Covenant domestically, and also does not allow individual complaints

internationally “removes the essential guarantees of the Covenant.”637

It seems

that Iran is such a State to violate this obligation.

6.3.3 Hierarchy between international and domestic law

As has already been mentioned, when international treaties are

incorporated in accordance with the constitutional procedure, they are of equal

rank to domestic legislation passed by parliament. In case of a conflict between

an international and a domestic rule, the rule of lex posterior derogatlegi priori

is applied: the more recent norm takes precedence. 638 On the other hand,

international treaty provisions are subordinate to the Iranian Constitution – as is

the case in many other countries.639

Moreover, still from the perspective of domestic law, both international

treaties and parliamentary laws are subordinated not only to the IC, but also to

Islamic law as article 4 and 72 IC provide that all norms including the

Constitution itself must comply with Islamic law. In case of conflict between the

international treaties, such as the ICCPR and Islamic provisions, the latter

prevails.640

It demonstrates the fact that the Iranian legislator gives precedence

637

CCPR/C/21/Rev.1/Add.6, 4November 1994, para. 12. 638


Gnjeh Danesh, Tehran, ISBN, 2007. P 90. 639

Herdegen, Matthias,Völkerrecht, Beck, 2000. P156. 640

Doc. CCPR/C/SR. 364 (1982) of 19 July 1982, The report on the elaborations of the Iranian

delegate Khosroshahi in front of the Human Rights Committee: “He [i.e. the delegate] felt bound

to emphasize, that although many articles of the Covenant [i.e. the ICCPR] were in conformity

with the teachings of Islam, there could be no doubt that the tenets of Islam would prevail

whenever the two sets of laws were in conflict.”, Para 4.


236

to domestic law and denies any applicability of treaties rules that are

inconsistent with Iranian domestic law or Islamic provisions. 641 By way of

example, one may refer to the law regulating the accession of the Iran to the

Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic

Substances.642

In spite of the fact that Iran, upon signature of the Convention,

only raised a reservation concerning its article 6 and did not make any reference

to Islam or Islamic law, the accession act643

promulgated that treaty provisions

which are at variance with domestic law or Islamic law are not binding for

Iran.644

6.3.4 International customary law

The status of international customary law within domestic law is not

regulated in legislation. According to Iranian scholars, customary international

law can be part of the domestic legal order only after incorporation.645

Consequently, rules of customary international law can also be part of the

Iranian legal system only if they are not at variance with Islamic law and the

constitution.646

641


Gnjeh Danesh, Tehran, ISBN, 2007. P 90. 642

Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20

December 1988, entry into force 11 November 1990, ILM 28 (1989), 497., ratification by the

I.R. Iran 7 December 1992. 643

Unicef, introduction to the convention on the rights of the child, Definition of key terms

Accede/Accession: ‘Accession’ is an act by which a State signifies its agreement to be legally

bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not

preceded by an act of signature. The formal procedure for accession varies according to the

national legislative requirements of the State. To accede to a human rights treaty, the appropriate

national organ of a state – Parliament, Senate, the Crown, Head of State or Government , or a

combination of the se – follows its domestic approval procedures and makes a formal decision to

be a party to the treaty. Then, the instrument of accession, a formal sealed letter referring to the

decision and signed by the State’s responsible authority, is prepared and deposited with the

United Nations Secretary-General in New York. http://www.unicef.org/crc/files/Definitions.pdf 644


Gnjeh Danesh, Tehran, ISBN, 2007. P 89, also Doc. HRI/CORE/1/Add. 106 of 15 July 1999,

The elaboration on the I.R. Iran, p 90. 645

ibid. P 89. 646

Article 4, 72 IC concerning parliamentary legislation and article 170 IC regarding executive

regulations.

237

6.4 The conflict between the Iranian legal system and international law

(International perspective)

Although Islamic law claims absolute validity, effective implementation

of Islamic law is also dependent on its adoption by states in the domestic legal

system. Although millions of Muslims around the world may adhere to Islamic

law at the personal level, it is up to the individual state to enforce Islamic law of

a certain school within its jurisdiction.647

When an individual state, like Iran

gives precedence to the rules of Islamic law and integrates it into its domestic

legal order, Islamic law becomes effective as a part of domestic law, and also

determines the status of international law (i.e. international law is valid as long

as it is not at variance with Islamic law).

On the other hand, international law requires that when domestic law is

at variance with international law, the state amends its legislation in order to

bring it in compliance.648

The principle that states have to adjust their domestic

law to their international obligations and cannot refer to local law to justify

breaches of international law has already been recognised in the Alabama

Arbitration case of 1872 and has been constantly confirmed by international

courts since then.649

In addition, article 27 of the Vienna Convention on the Law

of Treaties stipulates, “A party may not invoke the provisions of its internal law

as justification for its failure to perform a treaty.”650

Whatever the status of

international law at domestic level, a state remains bound by its international

647

Mayer, Ann Elizabeth,War and peace in the islamic tradition and international law,

Department of Legal Studies, University of Pennsylvania, Wharton School, 1990.P 152. 648

Dahm, Georg, Wolfrum, Rüdiger and Delbrück, Jost, Völkerrecht, 2,Auflage, Berlin, 1,

1988.P 102. I. Brownlie, Ian,Public international law, Oxford, UK, Oxford University Press,

2003. P35, Partsch, Karl Joseph, International law and municipal law, Bernhardt, Encyclopedia

of Public International Law, 2, 1992, .P1183. 649

Moore, J.B.,History and digest of the international arbitrations to which the united states has

been a party: Together with appendices containing the treaties relating to such arbitrations, and

historical legal notes, U.S. Government Printing Office, 1898.P 659; Advisory Opinion of the

Permanent Court of International Justice of 21 February1925, Exchange of Greek and Turkish

Population, PCIJ Series B No. 10, 20; Advisory Opinion of the Permanent Court of International

Justice, Greco-Bulgarian Communities Case, of 31 July 1930 PCIJ Series B No. 17, 32; ICJ,

Nottebohm Case, of 6 April 1955, ICJ Reports 1955, P 4. 650

Vienna Convention on the Law of Treaties of 23 May 1969, entry into force 27 January 1980,

UNTS Vol. 1155, 331 et seq. The then Iranian Empire signed the Convention on 23 May 1969

but it has not been ratified until today.


238

obligations. 651

The state, as a subject of international law, is bound to fulfil its

obligations and cannot rely on domestic law not to do so.652

Therefore, from the

perspective of international law, even though article 4 IC requires all laws to be

based on Islamic law, this rule does not affect the international obligations of

Iran. As a result Iran is internationally responsible to fulfil its human rights

obligations even when they would not be consistent with Islamic law and

therefore with the Iranian Constitution.

Another problematic issue, from the perspective of international law,

arises with regard to the issue of reservations. As already mentioned, article 2 of

the Vienna Convention on the Law of Treaties defines a reservation.653

This

definition is a codification of customary international law, and therefore binding

on states which are not party to the convention as well.654

Iran has made a

reservation in regard to the Convention on the Rights of the Child that implied

“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". This reservation has been

objected to by Austria, Denmark, Finland, Germany, Ireland, Italy, The

Netherlands, Norway, Portugal, Sweden.655

Iran also entered a reservation to the

Convention on the right of persons with disabilities. “…with regard to Article

46, the Islamic Republic of Iran declares that it does not consider itself bound

by any provisions of the Convention, which may be incompatible with its

651

Dahm, Georg, Wolfrum, Rüdiger and Delbrück, Jost, Völkerrecht, 2,Auflage, Berlin, 1, 1988.

P 103.I. Brownlie, Ian,Public international law, Oxford, UK, Oxford University Press, 2003. P

34, Partsch, Karl Joseph, International law and municipal law, Bernhardt, Encyclopedia of

Public International Law, 2, 1992, .P 1190, Jennings, Robert Yewdall, Watts, Arthur and

Oppenheim, Lassa,Oppenheim's international law: Peace, 1, Longman, 1992. P 84. 652

Jennings, Robert Yewdall, Watts, Arthur and Oppenheim, Lassa,Oppenheim's international

law: Peace, 1, Longman, 1992. P 84. 653

“[…] a unilateral statement, however phrased or named, made by a State, when signing,

ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to

modify the legal effect of certain provisions of the treaty in their application to that State.” 654

Ipsen, Knut, Menzel, Eberhard and Epping, Volker,Völkerrecht, CH Beck München, 2004. P

167, A valid reservation makes it possible for states to reject the application of individual

regulations of a treaty on itself and at the same time join the treaty. Several Islamic states have

used this right when signing and ratifying the human rights instruments. 655

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

11&chapter=4&lang=en#EndDec.

239

applicable rules.” Several countries objected to this reservation such as Austria,

Belgium, Czech Republic, France, Germany, Latvia, Mexico and Portugal.

The countries who object to these reservations base their arguments

notably on two main grounds: 1- lack of specificity; 2. the reservation is

contrary to the object and purpose of the treaty.

From the point of view of international law, reservations need to be

specific in order to enable other State parties to adopt a position on them.656

Similarly, a broad reference to Islamic law does not suffice, as one should not

presume that non-Islamic States have a detailed knowledge of Islamic law. In

addition, a huge variety of different interpretations of Islamic law exist which

are partly conflicting. Broad general reservations put the implementation of

human right treaties at high risk as they prevent individuals from understanding

the scope of their rights established by these treaties.657

In addition, reservations should not be against the purpose and object of

treaties, in particular international human right treaties. As some states argued

with regard to Iran’s reservation to the Disability Convention, the reservation is

not only general and not specific; it is also incompatible with the purpose and

object of the treaty. When states consent to a convention, they should be

prepared to undertake any necessary legislative changes to comply with their

obligations under the treaties; otherwise, it does not make any sense to ratify the

convention.658

For instance, Austria objected to Iran’s reservation to the

Convention on the Rights of the Child mainly because this reservation is

incompatible with the object and purpose of a treaty (Under article 19 of the

Vienna Convention on the Law of Treaties and article 51 of the Convention on

the Rights of the Child). It said that Iran’s reservation is incompatible with the

656

See CCPR/C/21/Rev.1/Add.6, 4 November 1994, Para. 19; see also the objections of

Denmark and Italy against the Iranian reservation to the Convention on the Rights of the Child.

Regarding doubts about the reservation of Kuwait to the ICCPR with largely similar wording M.

Nowak, U.N. Covenant on Civil and Political Rights, 2005, 594 including the annexed

objections of Finland and Sweden rejecting the Kuwaiti reservation, 972 and 982 respectively. 657

Bindschedler, Rudolf L, Treaties, reservations,Encyclopaedia of International Law, IV 2,

2000. P 965. 658

For more information about the arguments of objective countries please see:

http://www.bayefsky.com/html/iran_t2_disability.php.


240

object and purpose of a treaty if Iran intends to derogate provisions the

implementation of which is essential to fulfilling its object and purpose. Then

Austria suggested that “given the general character of this reservation a final

assessment as to its admissibility under international law cannot be made

without further clarification … Austria could not consider the reservation made

by the Islamic Republic of Iran as admissible unless Iran, by providing

additional information or through subsequent practice, ensures that the

reservation is compatible with the provisions essential for the implementation of

the object and purpose of the [said Convention.”

Austria clarified further, “until the scope of the legal effects of this

reservation is sufficiently specified by the Islamic Republic of Iran, the Republic

of Austria considers this reservation as not affecting any provision the

implementation of which is essential to fulfilling the object and purpose of the

Convention. Austria, however, objects to the admissibility of the reservation in

question if the application of this reservation negatively affects the compliance

by the Islamic Republic of Iran with its obligations under the [said Convention]

essential for the fulfilment of its object and purpose.”659

Similarly, the Slovak Republic objected to declaration made by the

Islamic Republic of Iran to the Convention on the Rights of Persons with

Disabilities. The Slovak Republic believes that the declaration made by the

Islamic Republic of Iran constitutes in fact a reservation to the Convention and

this reservation makes it unclear to what extent the Islamic Republic of Iran is

willing to fulfill its obligations under the Convention, since “it does not consider

itself bound by any provisions of the Constitution which may be incompatible

with its applicable rules.” Slovak Republic argued that “according to Article 46

paragraph 1 of the Convention and according to customary international law as

codified in the Vienna Convention on the Law of Treaties, a reservation that is

incompatible with the object and purpose of a treaty shall not be permitted.”

659

https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-

11&chapter=4&lang=en#EndDec ,http://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action

=openDocument&documentId=C185293EB8F17FC8C1256402003FC82E .

241

It further clarified that “This objection shall not preclude the entry into

force of the Convention between the Slovak Republic and the Islamic Republic

of Iran, without the Islamic Republic of Iran benefiting from its reservation.”660

Another point of conflict is that, sometimes, Islamic states do not make

any reservation, but do not fulfil some of their obligations under international

treaties when they are considered inconsistent with Islamic law. From the

perspective of international law, reservations can only be made at the time when

a state expresses consent to the treaty. Since no reservation was made, the states

are fully bound by the relevant treaty.

The state remains bound even when a new government comes to power.

This point also has been mentioned by Human Rights Committee, in its General

Comment 26 (61), “4. The rights enshrined in the Covenant belong to the

people living in the territory of the State party. The Human Rights Committee

has consistently taken the view, as evidenced by its longstanding practice, that

once the people are accorded the protection of the rights under the Covenant,

such protection devolves with territory and continues to belong to them,

notwithstanding change in Government of the State party, including

dismemberment in more than one State or State succession or any subsequent

action of the State party designed to divest them of the rights guaranteed by the

Covenant.” 661

This problem arises with regard to Iran’s ratification of the ICCPR. Iran

did not make a reservation to the ICCPR at the time of ratification.662

Iran did

not denounce or derogate from the ICCPR since the 1979 revolution. It therefore

remains fully bound by the Covenant. Iran confirmed its commitment to the

treaty by submitting periodic reports to the treaty monitoring body. At this

occasion, however, the Iranian delegate declared: “[…] there could be no doubt

660

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-

15&chapter=4&lang=en#EndDec. 661

CCPR/C/21/Rev.1/Add.8/Rev.1, Para 4. 662

Summary Record of the 364th Mtg of 19 July 1982, Doc. CCPR/C/SR. 364 (1982), 3 Para. 4;

The elaborations of the Iranian delegate Khosroshahi in front of the Human Rights Committee:

“He [i. e. the Iranian delegate] felt bound to emphasize, that although many articles of the

Covenant [i. e. the ICCPR] were in conformity with the teachings of Islam, there could be no

doubt that the tenets of Islam would prevail whenever the two sets of laws were in conflict.”


242

that the tenets of Islam would prevail whenever the two sets of laws were in

conflict.663

Even Musavi Khomeini, the founder of the Islamic republic of Iran,

had declared that he opposed any international treaty if it was inconsistent with

Islamic law.664

From an Islamic law perspective, Islamic doctrine may apply an

international treaty only if the Sharia is being respected, otherwise Islamic law

does not even allow for the conclusion of the treaty.665

But from an international

legal perspective, international legal obligations cannot be disregarded because

they are perceived to be inconsistent with religious domestic law.

In addition, it should be reminded here that according to the Human

Rights Committee, a withdrawal from the ICCPR is legally not possible. In

General Comment 26 (61), it stressed that

1. The International Covenant on Civil and Political Rights does not

contain any provision regarding its termination and does not provide for

denunciation or withdrawal. Consequently, the possibility of termination,

denunciation or withdrawal must be considered in the light of applicable rules

of customary international law which are reflected in the Vienna Convention on

the Law of Treaties. On this basis, the Covenant is not subject to denunciation

or withdrawal unless it is established that the parties intended to admit the

possibility of denunciation or withdrawal or a right to do so is implied from the

663

It is the same with regard to ratification of the Convention against the Illicit Traffic in

Narcotic Drugs and Psychotropic Substances of the United Nations. Regarding the ICCPR for

instance the Iranian delegate declared: “[…] there could be no doubt that the tenets of Islam

would prevail whenever the two sets of laws were in conflict”, in: Consideration of Reports

Submitted by States Parties under article 40 of the Covenant: Iran, Yearbook of the Human

Rights Committee 1981 – 1982, Vol. I, 345, Para. 4 also 363, Para 12 ,. also the Iranian law on

the ratification of the Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic

Substances of the United Nations, Convention against the Illicit Traffic in Narcotic Drugs and

Psychotropic Substances of 20 December 1988, entry into force 11 November 1990, ILM 28

(1989), 497., ratification by the I.R. Iran 7 December 1992. 664

Mayer, Ann Elizabeth,War and peace in the islamic tradition and international law,

Department of Legal Studies, University of Pennsylvania, Wharton School, 1990., and Doc.

CCPR/C/SR. 364 of 19 July 1982, 3 Para 4, The Iranian delegate Khosroshahi before the Human

Rights Committee, Summary Record of the 364th Mtg,; Rajaee, Farhang,Islamic values and

world view: Khomeyni on man, the state and international politics, University Press of America

Lanham, New York and London, 1983. P 81. 665

Salem, Isam Kamel,Islam und völkerrecht: Das völkerrecht in der islamischen

weltanschauung, Express Edition, 1984. P 198, Ford, Christopher A, Siyar-ization and its

discontents: International law and islam's constitutional crisis,Tex. Int'l LJ, 30, 1995.

243

nature of the treaty. 2. That the parties to the Covenant did not admit the

possibility of denunciation and that it was not a mere oversight on their part to

omit reference to denunciation is demonstrated by the fact that article 41 (2) of

the Covenant does permit a State party to withdraw its acceptance of the

competence of the Committee to examine inter-State communications by filing

an appropriate notice to that effect while there is no such provision for

denunciation of or withdrawal from the Covenant itself. 666

It further highlighted in Para 3 and 5 that “, it is clear that the Covenant

is not the type of treaty which, by its nature, implies a right of denunciation.

Together with the simultaneously prepared and adopted International Covenant

on Economic, Social and Cultural Rights, the Covenant codifies in treaty form

the universal human rights enshrined in the Universal Declaration of Human

Rights, the three instruments together often being referred to as the

"International Bill of Human Rights". As such, the Covenant does not have a

temporary character typical of treaties where a right of denunciation is deemed

to be admitted, notwithstanding the absence of a specific provision to that effect.

5. The Committee is therefore firmly of the view that international law does not

permit a State which has ratified or acceded or succeeded to the Covenant to

denounce it or withdraw from it.”667

Finally in concluding this part it can be said that the idea of a “silent”

implied reservation of Islamic states to international treaties is not acceptable

because in that case there would be no certainty for the other state parties as to

the extent to which Islamic states are bound. It would also be impossible to

object against a silent reservation. In addition, it is also not possible to

withdraw from human rights treaties such as ICCPR. The only possibility for

Islamic countries such as Iran that may wish to avoid obligations inconsistent

with Islamic law, is to enter a valid reservation to this effect (i.e. a specific

reservation that is not contrary to the object and purpose of the relevant treaty)

at the time of expressing consent to the treaty.668

Therefore, there is no doubt

666

CCPR/C/21/Rev.1/Add.8/Rev.1, Para 1-2. 667

CCPR/C/21/Rev.1/Add.8/Rev.1, Para 3-5. 668

H. von Heinegg, Ipsen, Knut, Menzel, Eberhard and Epping, Volker,Völkerrecht, CH Beck

München, 2004. P 167, Stein, Torsten and Von Buttlar, Christian,Völkerrecht, C. Heymanns,

2005. P 24.


244

that Iran remains bound by the treaties it joined before the Islamic Revolution of

1979 and the establishment of the Islamic Republic, given the principle of the

continuity of states. The identity of a state is not affected by changes of its

constitutional system, even revolutionary ones.669

The principle of commitment

to the human rights treaties signed by the pre-revolutionary government was

also recognized by the Iran.670

Since Iran only raised reservations to some

Conventions after the revolution, it is bound to comply with the international

treaties ratified before the revolution. In sum, from an international law

perspective, in case of conflict between Islamic law and international law, the

latter should be applied.671

6.5 The United Nations human rights systems and Iran

In this part, the United Nations human rights system, Iran’s contribution

to the system and the reports and activities of UN monitoring bodies on Iran are

discussed.

International treaties, like sources of Islamic law, require interpretation.

International human rights treaties are interpreted by relevant treaty bodies

through general comments, concluding observations etc. that are accepted as

authoritative.672

Further relevant sources include other UN documents, UN

669

Dahm, Georg, Delbrück, Jost and Wolfrum, Rüdiger, Völkerrecht, vol. I/3, (2002), P 601,

Jennings, Robert Yewdall, Watts, Arthur and Oppenheim, Lassa,Oppenheim's international law:

Peace, 1, Longman, 1992. P 204, Brownlie, Ian,Public international law, Oxford, UK, Oxford

University Press, 2003.P 80; Zimmermann, Andreas,Staatennachfolge in volkerrechtliche

vertrage: Zugleich ein beitrag zu den moglichkeiten und grenzen volkerrechtlicher

kodifikationsvorlagen, Springer DE, 2000. P 37, Verdross, Alfred and Simma,

Bruno,Universelles völkerrecht, Duncker & Humblot, 1984. P 230, Doehring, Karl,Völkerrecht:

Ein lehrbuch, Hüthig Jehle Rehm, 2004.P128. 670

Doc.CCPR/C/SR.1253, Explicitly Hossein Mehrpour, the head of the Iranian delegation

before the Human Rights Committee, Summary Record of the 1253rd Mtg of 30 July 1993, Para

2. 671

T. Opsahl, in: “Consideration of Reports Submitted by States Parties under Article 40 of the

Covenant: Iran”, Yearbook of the Human Rights Committee 1981 – 1982, Vol. I, 348 Para. 55;

also A. Dieye in the same Volume, 354 Para. 18; also there C. Tomuschat, 357 Para. 10. 672

Nowak, Manfred Un, Covenant on civil and political rights, ccpr commentary, 2 nd

rev,Edition, NP Engel, Kehl, 2005.Para. 6 of Introduction; see also the International Law

Commission on reservations to treaties.

245

resolutions of various bodies and organs673

, including of the General Assembly,

the UN Human Rights Council, and reports of the Council’s Special Procedures,

such as those drafted by Special Rapporteurs. In addition, international treaties

should be interpreted based on general rules in the Vienna Convention on the

Law of Treaties (VCLT).674

The VCLT states that an international treaty shall be

interpreted in good faith and based on the ordinary meaning of the terms in the

treaty, on the context and on the object and purpose of the treaty, and on the

subsequent practice as agreed by the states parties to that treaty.675

Although Iran

is not a party to the VCLT, the VCLT rules are often referred to as a codification

of customary international law.676

Moreover, in order to protect victims of rape or in general to fight

discrimination against women, women's right advocates and different NGOs

have built up a practice of invoking international human rights norms and

principles in their work. These non-State actors can work outside the formal

legal system (such as human rights defenders outside the country e.g., citizens’

tribunals, petition campaigns, documenting and exposing abuses in reports) or

they can work and act within the formal legal system (e.g., by filing lawsuits, or

lobbying for amendments to legislation). A combination of both approaches

appears crucial in order to achieve legal change as both the formal and the

informal, and the global and the local spheres can support each other.677

Therefore, while this section is seeking to address the UN involvement in Iran, it

is also trying to show how the international community perceives violence

against women in Iran. Even if international law is not directly referred to at the

domestic level, the international human rights discourse may indirectly help to

improve the situation of women in Iran.

673

In particular, resolutions and documents of the General Assembly and of the Human Rights

Council. 674

Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, Treaty

Series, vol. 1155, p 331. 675

Article 31 of the VCLT; See also Report of the International Law Commission, May –

August 2012, UN Doc A/62/10, p 80. 676

See e.g. Case Concerning the Territorial Dispute (Libya v. Chad), ICJ, 1994, Para. 41. 677

Bauer, J., Hélie, A., Rights, Democracy and Laws, Women Living under

Muslim,Documenting women's rights violations by non-state actors: Activist strategies from

muslim communities, Rights & Democracy, 2006. P 64.


246

6.5.1 United Nations Mechanisms for the Protection of Human rights and

Iran

The United Nations678

(UN) was established after the Second World War

in order to bring peace and security among the world’s states. The experience of

the war had clearly shown the need to guarantee to all persons a series of

fundamental rights and freedoms that protect them against their own

government. The goal of the protection of dignity of every individual led to

adoption of the Universal Declaration of Human Rights in 1948. Afterward,

several declarations and conventions were adopted to preserve human rights.679

Together with these norms, a series of mechanisms were provided to

monitor state obligations. The United Nations thus developed two strategies in

order to protect human rights: 1) the normative system 2) a series of institutions

to monitor and protect human rights.

With regard to the normative system680

, after the adoption of the non-

binding Universal Declaration for Human Rights, a codification exercise started.

678

About the UN system generally please see: Ramcharan, Bertrand G,Human rights: Thirty

years after the universal declaration: Commemorative volume on the occasion of the thirtieth

anniversary of the universal declaration of human rights, BRILL, 1979 , Sands, Philippe and

Klein, Pierre,Bowett's law of international institutions, 2001. 679

For more information please see: See Alston, Philip and Crawford, James,The future of un

human rights treaty monitoring, Cambridge University Press, 2000 , Rehman,

Javaid,International human rights law, Pearson education, 2010 , Steiner, Henry J, Alston,

Philip and Goodman, Ryan,International human rights in context, Clarendon Press Oxford,

1996., chapters 2–5; Tomuschat, Christian,Human rights: Between idealism and realism, Oxford

University Press, 2008.chapters 6–8; Ermacora, Federico, Procedures to deal with human rights

violations: A hopeful start in the united nations,Human Rights Journal, 7, 1974 , Hannum,

H,Guide to international human rights practice, Transnational Publishers, 2004 , Ramcharan,

Bertrand G,Human rights: Thirty years after the universal declaration: Commemorative volume

on the occasion of the thirtieth anniversary of the universal declaration of human rights, BRILL,

1979. p. 670, Robertson, Arthur Henry and Merrills, John Graham, Human rights in the world:

An introduction to the international protection of human rights, (1996), , Trindade, Antônio

Augusto Cançado,Co-existence and co-ordination of mechanisms of international protection of

human rights: At global and regional levels, Academy Of International Law, 1987.p 9. 680

See e.g. Ganji, Manouchehr and Guggenheim, Paul,International protection of human rights,

Droz, 1962 , Luard, Evan,The international protection of human rights, Praeger, 1967 ,

Moskowitz, Moses,International concern with human rights, Brill Archive, 1974 , Sohn, Louis

B and Buergenthal, Thomas,International protection of human rights, Bobbs-Merrill, 1973.

247

In 1965, the UN General Assembly adopted the Convention on the Elimination

of All Forms of Racial Discrimination. The following year the International

Covenant on Civil and Political Rights was adopted together with the

International Covenant on Economic, Social and Cultural Rights. In the

following decades, the General Assembly adopted a series of treaties setting

human rights standards, such as the Convention on the Elimination of All Forms

of Discrimination Against Women (1979), the Convention Against Torture

(1984) and the Convention on the Rights of the Child (1989), Convention on the

Protection of the Rights of All Migrant Workers and Members of Their Families

(1990) and Convention on the Rights of Persons with Disabilities (2007).

Contrary to the Universal Declaration, the Conventions are binding to all the

States that have ratified them. However, the number of countries that have

ratified different treaties varies. For example, 193 States have ratified the

Convention on the Rights of the Child, whereas the International Convention for

the Protection of All Persons from Enforced Disappearances (2006) has only

been ratified by 25 countries. Iran has also ratified a number of human rights

treaties, as explained above.681

The gradual development of international human rights norms has

resulted in the establishment of mechanisms to observe the extent to which

human rights are actually respected. There are two types of human rights

monitoring mechanisms in the United Nations. One type is the conventional

mechanisms, i.e. specific committees established through treaties. These "treaty

bodies", composed of the individual experts, monitor the implementation of the

681

Iran is a party to four major United Nations human rights treaties: the Convention on the

Rights of the Child (ratified on 13 July 1994), the International Convention on the Elimination

of All Forms of Racial Discrimination (ratification on 29 August 1968), the International

Covenant on Civil and Political Rights and the International Covenant on Economic, Social and

Cultural Rights (both ratified on 24 June 1975). Iran also has a practice of entering general

reservations upon signature or ratification, which has repeatedly been cited by treaty bodies as

one of the main factors impeding the enjoyment of some human rights protected under the

conventions. It has ratified or acceded to some other human-rights-related treaties such as the

Convention relating to the Status of Refugees (1951) and the Protocol thereto (both acceded to

on 28 July 1976), the Convention on the Prevention and Punishment of the Crime of Genocide

(1948) (ratified on 14 August 1956), the International Convention on the Suppression and

Punishment of the Crime of Apartheid (1973) (acceded to on 17 April 1985) and the ILO

Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst

Forms of Child Labour (Convention No. 182) (ratified on 8 May 2002).


248

individual conventions by the States parties. The second type of mechanism is

referred to as extra-conventional mechanisms or political institutions that are

outside the treaty framework and are composed of government representatives.

The following section describes the human rights monitoring bodies of

the United Nations and the cooperation of Iran with those institutions. At the

end of each part, the reports, recommendations and information that have been

provided by human right monitoring bodies of United Nations on Iran with

regard to rape, sexual violence and discrimination vis-à-vis women will be

discussed.

6.5.1.1 Treaty Bodies

When a state ratifies one of the core United Nations human rights

treaties, it is obliged to implement the provisions of the convention.682

To ensure

this, a committee is established to monitor whether states act in accordance with

the each convention.683

These committees, also known as treaty bodies or

monitoring committees, consist of independent experts (between 10 and 23)

appointed for four years at a time. The monitoring method of each committee is

different; however, typically the states parties are expected to provide reports

(every 2-5 years) to the relevant committee about how they implement the

convention. Except reports from each state, the committee can use information

from other sources such as other UN organs, NGO’s, academic institutions, the

media, etc. After discussing the incoming information, the committee presents a

number of suggestions and general recommendations that states are expected to

implement. Although the recommendations are not legally binding, in their

subsequent reports, states have to explain how the recommendations were

682

For more information about expert bodies established under particular treaties please see: See

e.g. Alston, Philip and Crawford, James,The future of un human rights treaty monitoring,

Cambridge University Press, 2000 , Hannum, H,Guide to international human rights practice,

Transnational Publishers, 2004 , Lewis-Anthony, Siân, Treaty based procedures for making

human rights complaints within the un system,2004.p 43. See also O'flaherty, Michael,Human

rights and the un: Practice before the treaty bodies, Sweet & Maxwell, 1996 , O'flaherty,

Michael and O'brien, Claire, Reform of un human rights treaty monitoring bodies: A critique of

the concept paper on the high commissioner's proposal for a unified standing treaty

body,Human Rights Law Review, 7, 2007. 683

Grover, Leena, Keller, Helen and Ulfstein, Geir,Un human rights treaty bodies: Law and

legitimacy, 1, Cambridge University Press, 2012.

249

implemented and show good faith in taking the reporting process seriously. Ten

human rights treaty bodies monitor the implementation of the core international

human rights treaties:

The Human Rights Committee684

(HRC) observes the implementation of

the International Covenant on Civil and Political Rights.685

It includes 18

independent experts in the field of human rights. The Committee was

established when the Covenant entered into force in 1976. The First Optional

Protocol enables the Committee to consider allegations from individuals

pertaining to violations of their civil and political rights.686

The Committee on

Economic, Social and Cultural Rights (CESCR) monitors the International

Covenant on Economic, Social and Cultural Rights.687

It is composed of 18

independent experts in the relevant fields.688

The Committee was established by

the Economic and Social Council in 1985, nine years after the Covenant entered

into force.689

The Optional Protocol to the ICESCR on individual and group

communications enables the Committee to receive and consider

communications on behalf of individuals or groups of individuals, under the

jurisdiction of a State Party, claiming to be victims of a violation of any of the

684

See e.g. Steiner pp. 844, Joseph, Sarah and Castan, Melissa,The international covenant on

civil and political rights: Cases, materials, and commentary, Oxford University Press, 2013 ,

Mcgoldrick, Dominic and Mcgoldrick,The human rights committee: Its role in the development

of the international covenant on civil and political rights, Clarendon Press, 1994 , Opsahl,

Torkel, The human rights committee,The United Nations and Human Rights: A Critical

Appraisal, 1992., p. 367, Fischer, Dana D, Reporting under the covenant on civil and political

rights: The first five years of the human rights committee, (1982), p. 142, Nowak, Manfred, The

effectiveness of the international covenant on civil and political rights: Stocktaking after the first

eleven sessions of the un human rights committee,Rts. LJ, 136, 1980 , Ramcharan, Bg,

Implementation of the international covenant on economic, social and cultural

rights,Netherlands International Law Review, 23, 1976 , Schwelb, Egon, International measures

of implementation of the international covenant on civil and political rights and of the optional

protocol, the,Tex. Int'l LJ, 12, 1977. p. 168 and 5 HRLJ, 1984, p 199. 685

International Covenant on Civil and Political Rights, Adopted and opened for signature,

ratification and accession by General Assembly resolution 2200A (, XXI) of 16 December 1966

entry into force 23 March 1976. 686

http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx 687

International Covenant on Economic, Social and Cultural Rights, Adopted and opened for

signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16

December 1966, entry into force 3 January 1976. 688

It is unlike the other committees, whose members are elected by the States parties to the

respective convention and report to the General Assembly. 689

http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx


250

economic, social and cultural rights set forth in the Covenant by that State Party.

The Committee on the Elimination of Racial Discrimination690

(CERD)

monitors the implementation of the International Convention on the Elimination

of All Forms of Racial Discrimination.691

It is composed of 18 independent

experts. The Committee began its work when the Convention entered into force

in 1969.692

The Committee on the Elimination of Discrimination against

Women693

(CEDAW), composed of 23 independent experts, has monitored the

Convention on the Elimination of All Forms of Discrimination against Women

since 1981.694

The Committee Against Torture695

(CAT) monitors the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment.696

It is composed of 10 independent experts, and was established

in 1987. The Committee on the Rights of the Child697

(CRC), composed of 10

690

See e.g. Banton, Michael, Decision-taking in the committee on the elimination of racial

discrimination,The Future of United Nations Human Rights Treaty-monitoring, 2000. p. 55,

Partsch, Karl Josef, The committee on the elimination of racial discrimination,The United

Nations and Human Rights: A Critical Appraisal, 1992. p 339. 691

International Convention on the Elimination of All Forms of Racial Discrimination, Adopted

and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21

December 1965 entry into force 4 January 1969. 692

http://www2.ohchr.org/english/bodies/cerd/ 693

See Jacobson, Roberta, The committee on the elimination of discrimination against

women,The United Nations and Human Rights: A Critical Appraisal, 1992. p. 444, Byrnes,

Andrew, The “other” human rights treaty body: The work of the committee on the elimination of

discrimination against women’(1989),Yale Journal of International Law, 14, p. 1; Galey,

Margaret E, International enforcement of women's rights,Hum. Rts. Q., 6, 1984 , Wadstein,

Margareta, Implementation of the un convention on the elimination of all forms of discrimination

against women,Neth. Q. Hum. Rts., 6, 1988. p. 5, Cook, Rebecca J, Women's international

human rights law: The way forward,Hum. Rts. Q., 15, 1993. p 230, Freeman, Marsha A and

Fraser, Arvonne S, Women's human rights: Making the theory a reality,Stud. Transnat'l Legal

Pol'y, 26, 1994 , Rehman, Javaid,International human rights law, Pearson education, 2010 ,

Steiner, Henry J, Alston, Philip and Goodman, Ryan,International human rights in context,

Clarendon Press Oxford, 1996. pp. 175 and 541, Morsink, Johannes,The universal declaration of

human rights: Origins, drafting, and intent, University of Pennsylvania Press, 1999. p. 229,

Charlesworth, Hilary and Chinkin, Christine Mary,The boundaries of international law: A

feminist analysis, Manchester University Press, 2000., Bustelo, Mara R, The committee on the

elimination of discrimination against women at the crossroads,The Future of UN Human Rights

Treaty Monitoring, 2000.p79. 694

http://www.un.org/womenwatch/daw/cedaw/committee.htm. 695

http://www.ohchr.org/EN/HRBodies/CAT/Pages/CATIndex.aspx. 696

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Adopted and opened for signature, ratification and accession by General Assembly

resolution 39/46 of , 10 December 1984 entry into force 26 June 1987. 697

http://www2.ohchr.org/english/bodies/crc/.

251

independent experts, has monitored the Convention on the Rights of the Child698

since 1991.699

The Committee on Migrant Workers700

(CMW), examines

implementation of the International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families701

by its State parties. It

held its first session in March 2004.702

The Committee on the Rights of Persons

with Disabilities703

(CRPD) monitors implementation of the Convention by the

States Parties.704

All States parties have to submit regular reports to the

Committee on how the rights are being implemented. The Optional Protocol to

the Convention gives the Committee authority to examine individual complaints

with regard to violations of the Convention by States parties. The Committee on

Enforced Disappearances705

(CED) is the body of independent experts that

monitors implementation of the Convention by the States Parties.706

The

Subcommittee on Prevention of Torture707

(SPT) is established under the

Optional Protocol to the Convention against Torture in February 2007.708

698

Convention on the Rights of the Child, Adopted and opened for signature, ratification and

accession by General Assembly resolution 44/25 of 2, 0 November 1989 entry into force 2

September 1990. 699

See e.g.Buck, Trevor,International child law, Psychology Press, 2005. G. Lansdown, ‘The

Reporting Procedures under the Convention on the Rights of the Child’ in Alston, Philip and

Crawford, James,The future of un human rights treaty monitoring, Cambridge University Press,

2000. p 113; Rehman, Javaid,International human rights law, Pearson education, 2010., chapter

14; Fottrell, Deirdre,Revisiting children's rights: 10 years of the un convention on the rights of

the child, Martinus Nijhoff, 2000 , Mcgoldrick, Dominic, The united nations convention on the

rights of the child,International Journal of Law, Policy and the Family, 5, 1991. P 132. 700

http://www.ohchr.org/EN/HRBodies/CMW/Pages/CMWIndex.aspx 701

International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families, Adopted by General Assembly resolution 45/158 of 18 December

1990. 702

See e.g. K. Samson, ‘Human Rights Co-ordination within the UN System’ in Alston, United

Nations and Human Rights, pp. 620, 641 ff.; S. Hune and J. Niessen, ‘Ratifying the UN Migrant

Workers Convention: Current Difficulties and Prospects’, 12 NQHR, 1994, p. 393, and S. Hune

and J. Niessen, ‘The First UN Convention on Migrant Workers’, 9 NQHR, 1991, p 133. 703

http://www.ohchr.org/en/hrbodies/crpd/pages/crpdindex.aspx. 704

Convention on the Rights of Persons with Disabilities, Adopted by General Assembly 24

January 2007 in Sixty - first session, A/RES/61/106. 705

http://www.ohchr.org/EN/HRBodies/ced/Pages/CEDIndex.aspx. 706

International Convention for the Protection of All Persons from Enforced Disappearance, by

the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992. 707

See e.g. Byrnes, Andrew, The committee against torture,The United Nations and Human

Rights: A Critical Appraisal, 509, 1992 , Nowak, Manfred, Mcarthur, Elizabeth and Buchinger,

Kerstin,The united nations convention against torture: A commentary, Oxford University Press


252

6.5.1.2 Cooperation by Iran with the United Nations human rights treaty

system

Although Iran is party to some international human rights treaties, its

cooperation with the treaty monitoring bodies remains limited. The country did

not report to the Committee on Economic, Social and Cultural Rights or the

Human Rights Committee for more than a decade. The concluding observations

of each of those bodies adopted in 1993 remain mainly unimplemented.

However, on the positive side, the more recent country reports were

examined by the Committee on the Rights of the Child in 2000 and 2005

respectively and by the Committee on the Elimination of All Forms of Racial

Discrimination in 2003 and 2010709

, enabling an in-depth analysis of the various

forms of discrimination and of the situation of the rights of the child.710

More recently, during 2009, Iran submitted for examination its third711

periodic report on the implementation of the ICCPR to the Human Rights

Committee.712 The Human Rights Committee considered the third periodic of

the Islamic Republic of Iran713

at its 2834th, 2835th and 2836th meetings,714

held on 17 and 18 October 2011 and adopted its concluding observations715

at its

2857th

and 2858th

meetings,716

held on 2 November 2011.717

Iran also submitted

Oxford, 2008. p509, Rodley, Nigel and Pollard, Matt,The treatment of prisoners under

international law, Oxford University Press, 2009. 708

http://www2.ohchr.org/english/bodies/cat/opcat/. 709

CERD/C/IRN/CO/18-19. 710

A/63/459, 1 October 2008, Sixty-third session Agenda item 64 (c) Promotion and protection

of human rights: human rights situations and reports of special rapporteurs and representatives

Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran 711

Iran did submit a first and second report that will be explained later on. 712

CCPR/C/IRN/3. 713

CCPR/C/IRN/CO/3. 714

CCPR/C/SR/2834, CCPR/C/SR/2835 and CCPR/C/SR/2836. 715

CCPR.C.IRN.CO.3. 716

CCPR/C/SR/2853 and CCPR/C/SR/2858. 717

During its review of Iran’s third periodic report on the implementation of the International

Covenant on Civil and Political Rights (ICCPR) in October 2011,2 the Human Rights

Committee expressed deep concern about reports of the widespread use of torture and cruel,

inhuman or degrading treatment in detention facilities, particularly of those accused of national

security-related crimes. The Committee also expressed concern about the continued imposition

of corporal punishment by judicial and administrative authorities, in particular amputations and

253

its second periodic report718

concerning the implementation of the International

Covenant on Economic, Social and Cultural Rights. 719 These are the first

reports from Iran to these two Committees in more than a decade.

Regarding the situation of women in terms of inequality, discrimination

etc., The International Covenant on Civil and Political Rights (ICCPR)

stipulates that “all persons shall be equal before the courts and tribunals”

(Article 14) and that “all persons are equal before the law and are entitled

without any discrimination to the equal protection of the law” (Article 26).

Article 2 of ICCPR also protects every person’s human rights “without

distinction of sex.” According to Peters, Iran’s national law fails to uphold these

principles and violates the principle of legal equality by provisions that

discriminate, inter alia, on the basis of gender.720

In its 2011 concluding

observation, the Human Rights Committee expressed concern about the

continuing inequality of women with regard to marriage, family and inheritance

matters, and recommended that the Government amend the Civil Code and the

draft Family Protection Act to bring them in line with international human rights

standards. The committee expressed its concern about the status of international

human rights treaties in domestic law that is not specified in the legal system,

and then hinders the full implementation of the rights contained in the Covenant.

It also mentioned the matter of inequality between men and women.721

The

Committee expressed its concern about the high, and increasing, number of

death sentences722

pronounced and carried out in Iran, the wide range and often

vague definition of offences for which the death penalty is applied, and the large

number of capital crimes and execution methods. The Human Rights Committee

flogging for a range of crimes, including theft, enmity against God (Mohareb) and certain sexual

acts. In response, the Iranian authorities stressed that the Constitution forbids torture, the Penal

Code stipulates stringent punishment for offenders, and confessions extracted through torture

have no legal validity. 718

The initial report of Iran, (E/1990/5/Add.9) has been considered by The Committee at its 7th,

8th, 9th and 20th meetings, held on 18, 19 and 28 May 1993, which will be explained later on. 719

E/C.12/IRN/2. 720

Peters, Rudolph,Crime and punishment in islamic law: Theory and practice from the

sixteenth to the twenty-first century, 2, Cambridge University Press, 2005. P 177. 721

CCPR.C.IRN.CO.3, Para 5. 722

Same concern had been mentioned over the extremely high number of death sentences in

concluding observation of HRC in 1993, many resulting from trials in which the guarantees of

due process of law had not been properly applied, CCPR/C/79/Add.25, Para 8.


254

also articulated that under the International Covenant on Civil and Political

Rights, the application of the death penalty is limited to the most serious crimes

and should be applied only in a most restrictive manner while ensuring for the

utmost procedural safeguards.723

It then recommended that the State party should

ensure effective implementation and application of the provisions of the

Covenant, irrespective of the place of the Covenant in the domestic legal system.

The Committee asked the Government to consider establishing a national human

rights institution with a broad human rights mandate, and provide it with

adequate financial and human resources, in line with the Paris Principles

(General Assembly resolution 48/134).724

The Committee on Economic, Social and Cultural Rights (CESCR), in

1993, noted that Iran's obligation to ensure equal opportunity for women

warranted particular attention, especially in relation to the rights to education,

work, and family related rights.725

The Committee on Economic, Social and

Cultural Rights considered the second periodic report of the Islamic Republic of

Iran on the implementation of the International Covenant on Economic, Social

and Cultural Rights at its 5th

and 6th

meetings, held on 1 May 2013726

, and

adopted Concluding observations, at its 28th

meeting held on 17 May 2013.727

In

its concluding observation, the CESCR raised concern about the issue of marital

rape. It mentioned,

The Committee is concerned that domestic violence, including marital

rape, is not specifically criminalized in domestic legislation. It is also concerned

that victims of domestic violence do not have adequate access to effective means

of redress and immediate protection (art. 10).

On this issue, the Committee recommended that the State party take

urgent legislative steps to specifically criminalize domestic violence, including

marital rape based on article 10 of the International Covenant on Economic,

723

CCPR.C.IRN.CO.3, Para 12, CCPR/C/79/Add.25, Para 8. 724

CCPR.C.IRN.CO.3, Para 7, 8. 725

E/C.12/1993/7, Para 8. 726

E/C.12/2013/SR.5-6. 727

E/C.12/IRN/CO/2.

255

Social and Cultural Rights.728

It also recommended that the State party take

steps to ensure that victims of domestic violence have access to effective means

of redress and immediate protection, including through a sufficient number of

safe houses.729

In its second periodic report to the CESCR, the Iranian Government

discussed its program to revise “existing rules and regulations” with the aim to

advancing women's participation, raising public awareness about their

“qualifications”, and enhancing their skills.730

The Government also maintained

that,

women's affairs have received “special attention in the economic, social,

cultural and political development plans of the country”, commensurate with its

view that “men and women equally enjoy the protection of the law, and enjoy all

human, political, economic, social, and cultural rights, in conformity with

Islamic criteria.731

However, the Government representatives also asserted that “while it is

believed that “men and women are equal in human dignity and human rights,

this is not to be confused with equating men and women's role in family, society,

and in the development process.”732

728

Article 10: The States Parties to the present Covenant recognize that: 1. The widest possible

protection and assistance should be accorded to the family, which is the natural and fundamental

group unit of society, particularly for its establishment and while it is responsible for the care

and education of dependent children. Marriage must be entered into with the free consent of the

intending spouses. 2. Special protection should be accorded to mothers during a reasonable

period before and after childbirth. During such period working mothers should be accorded paid

leave or leave with adequate social security benefits. 3. Special measures of protection and

assistance should be taken on behalf of all children and young persons without any

discrimination for reasons of parentage or other conditions. Children and young persons should

be protected from economic and social exploitation. Their employment in work harmful to their

morals or health or dangerous to life or likely to hamper their normal development should be

punishable by law. States should also set age limits below which the paid employment of child

labour should be prohibited and punishable by law. 729

E/C.12/IRN/CO/2, Para 17. 730

ICESCR: Second periodic reports of States parties, Islamic Republic of Iran, 2009; Para 25. 731

ICCPR: Third periodic reports of States parties Islamic Republic of Iran, 2009; Para 27. 732

E/2012/27, E/CN.6/2012/16, General Discussion of the Commission on the Status of Women,

56th Session; Intervention by H.E. Mr. Eshagh Al-Habib, Ambassador and Deputy


256

This represents the fact that while Iran attempts to provide equal

opportunities to men and women, it also justifies some inequalities based on the

culture or religion etc. Regarding this viewpoint, Ms. Farida Shaheed, the

Special Rapporteur in the field of cultural rights, asserted,

While the tendency to view culture as an impediment to women's rights is

“both over simplistic and problematic”, “many practices and norms that

discriminate against women are justified by reference to culture, religion and

tradition.733

In addition, on this issue, the Special Rapporteur on the situation of

human rights in the Islamic Republic of Iran (see infra) maintains that the

abovementioned emphasis on gender roles places limitations on the Iranian

Government's obligation to protect women's full enjoyment of their civil,

political, social, cultural, and economic rights contrary to the requirements of

the ICCPR and the ICESCR. The Special Rapporteur asserts that “this view

arbitrarily qualifies the degree to which women may enjoy these rights as that

which the Government perceives to be in conformity with Islamic criteria”. In

his view: “This particular argument undermines the notion of universal rights,

and compromises the rights protected by the ICCPR and the ICESCR for

virtually half of the Iranian population.”734

In its concluding observation, similarly to the Human Rights Committee,

the CESCR recommended that Iran ensures that all the obligations in the

Covenant are fully respected under all circumstances and that Constitutional

provisions, in particular articles 4 and 20, are applied in a manner consistent

with the provisions of the Covenant.735

Representative of the Islamic Republic of Iran to the United Nations, on behalf of H.E. Maryam

Mojtahedzadeh, Advisor to the President and Head for the Center for Women and Family

Affairs; February 2012. 733

A/67/287; Report of the Special Rapporteur in the field of cultural rights, 10 August 2012 734

A/HRC/22/56, 28 February 2013, Para 43. 735

Article 4, All civil, penal financial, economic, administrative, cultural, military, political, and

other laws and regulations must be based on Islamic criteria. This principle applies absolutely

and generally to all articles of the Constitution as well as to all other laws and regulations, and

the fuqaha' of the Guardian Council are judges in this matter. Article 20, all citizens of the

257

6.5.1.3 Political bodies

In addition to the treaty monitoring bodies, the political or Charter-based

bodies have a general mandate not associated with a particular treaty. The

principal body is the UN Human Rights Council.

6.5.1.3.1 Human Rights Council

The Human Right Council which replaced the Commission on Human

Rights,736

is responsible for strengthening the promotion and protection of

human rights around the globe and for addressing situations of human rights

violations and make recommendations on them. It has the ability to discuss all

thematic human rights issues and situations that require its attention throughout

the year.737

The Council was created by the United Nations General Assembly

on 15 March 2006 by resolution 60/251.738

It is composed of 47 members

elected by United Nations member states. Members are elected for an initial

period of three years, and cannot be elected for more than two consecutive terms.

The Office of the High Commissioner for Human Rights (OHCHR), headed by

the UN High Commissioner for Human Rights, acts as the administration that

country, both men and women, equally enjoy the protection of the law and enjoy all human,

political, economic, social, and cultural rights, in conformity with Islamic criteria. 736

For more information about HR commission, Economic and Social Council (ECOSOC) and

the Sub-Commission on the Promotion and Protection of Human Rights please see: Shaw,

Malcolm N,International law, 6th, edition Cambridge University Press, Cambridge, 2008. p 303,

N. Rodley and D. Weissbrodt, ‘United Nations Non-Treaty Procedures for Dealing with Human

Rights Violations’ in Hannum, H,Guide to international human rights practice, Transnational

Publishers, 2004., p. 65; Steiner, Henry J, Alston, Philip and Goodman, Ryan,International

human rights in context, Clarendon Press Oxford, 1996. chapter 9, Buergenthal, Thomas and

Torney, Judith V, International human rights and international education,1976. pp. 75, Tolley

Jr, Howard, Concealed crack in the citadel: The united nations commission on human rights'

response to confidential communications, the,Hum. Rts. Q., 6, 1984. A Commission on the

Status of Women was also created: see A. Eide, ‘The Sub-Commission on Prevention of

Discrimination and Protection of Minorities’ in Alston, Philip,The united nations and human

rights: A critical appraisal, Oxford [England]: Clarendon Press; New York: Oxford University

Press, 1992. p. 211, Garber, Larry and O'connor, Courtney M, The 1984 un sub-commission on

prevention of discrimination and protection of minorities,American Journal of International Law,

1985 , Gardeniers, Ton, Hannum, Hurst and Kruger, Janice, Un sub-commission on prevention

of discrimination and protection of minorities: Recent developments, the,Hum. Rts. Q., 4, 1982.

P 168. 737

http://www.ohchr.org/EN/HRBodies/HRC/Pages/AboutCouncil.aspx. 738

A/RES/60/251.


258

offers substantive support for the meetings of the Human Rights Council

etc.739

The Human Rights Council is assisted by an Advisory Committee,

composed of individual experts, which serves as the Council’s “think tank”

providing it with expertise and advice on thematic human rights issues.740

The Council adopted its "Institution-building package" to guide its work

and set up its procedures and mechanisms in 2007.741

The Human Rights Council

subsumed the UN Special Procedures established by the former Commission on

Human Rights and now assumed by the Council. These are made up of special

rapporteurs, special representatives, and independent experts and working

groups that monitor, examine, advice and publicly report on thematic issues or

human rights situations in specific countries. A new procedure set up by the

Human Rights Council is the Universal Periodic Review mechanism which

serves to assess the human rights situations in all UN Member States.

6.5.1.3.2 Universal Periodic Review (UPR) and Iran

The UPR consists of a periodic review of the human rights record all UN

Member States.742 The UPR is a significant innovation of the Human Rights

Council in that it provides equal treatment for all countries.743

It offers an

opportunity for all States to announce what they have done to improve the

human rights situations in their countries.744

The UPR Working Group composed

739

The Office of the High Commissioner for Human Rights (OHCHR) works to offer the best

expertise and support to the different human rights monitoring mechanisms in the United

Nations system: UN Charter-based bodies, including the Human Rights Council, and bodies

created under the international human rights treaties and made up of independent experts

mandated to monitor State parties' compliance with their treaty obligations. Most of these bodies

receive secretariat support from the Human Rights Council and Treaties Division of the Office

of the High Commissioner for Human Rights (OHCHR). 740

See e.g. Hampson, Françoise J, An overview of the reform of the un human rights

machinery,Human Rights Law Review, 7, 2007. p 7. 741

http://www.ohchr.org/en/hrbodies/hrc/pages/aboutcouncil.aspx 742

See e.g. Hampson, Françoise J, An overview of the reform of the un human rights

machinery,Human Rights Law Review, 7, 2007. 743

‘In larger freedom: towards development, security and human rights for all’, Report of the

Secretary-General (A/59/2005), 21 March 2005; World Summit Outcome, General Assembly

resolution 60/1, 24 October 2005. 744

The UPR was created through the UN General Assembly on 15 March 2006 by resolution

60/251, which established the Human Rights Council itself. It is a cooperative process which, by

October 2011, has reviewed the human rights records of all 193 UN Member States. Currently,

259

of 47 members of the Council reviews the reports. Each State review is assisted

by groups of three States, known as “troikas”, who serve as rapporteurs. The

reviews are based on different sources of information including the reports of

the Special Procedures, human rights treaty bodies, and other UN entities; or

information from national human rights institutions and non-governmental

organizations.

The UPR assesses the extent to which States respect their human rights

obligations.745

Following the review by the Working Group, the troika with the

association of the State under review and assistance from the United Nations

High Commissioner for Human Rights (OHCHR) produces a report that

contains a summary of the actual discussion, the questions, comments and

recommendations made by other States, as well as the responses by the State

under review. The State under review has the opportunity to accept or reject

recommendations made.746

The State has the primary responsibility to implement

the recommendations contained in the final outcome document.747

The UPR

ensures that all countries are accountable for progress or failure in implementing

these recommendations. During the second review, the State is expected to

provide information on the implementation of the recommendations of the first

no other universal mechanism of this kind exists. The UPR is one of the key elements of the

Council which reminds States of their responsibility to fully respect and implement all human

rights and fundamental freedoms. The ultimate aim of this mechanism is to improve the human

rights situation in all countries and address human rights violations wherever they occur.

http://www.ohchr.org/EN/HRBodies/Upr/Pages/UPRMain.aspx. 745

This evaluation is based on the UN Charter; the Universal Declaration of Human Rights;

human rights treaties ratified by the State, voluntary commitments made by the State such as

national human rights policies and applicable international humanitarian law. 746

Human Rights Council, resolution 5/1, Institution-building of the United Nations Human

Rights Council, Para. 29. The state is only obliged to implement the recommendations that it

accepted. 747

The report then has to be adopted at a plenary session of the Human Rights Council. During

the plenary session, the State under review can reply to questions and issues that were not

sufficiently addressed during the Working Group and respond to recommendations that were

raised by States during the review. Time is also allotted to member and observer States who may

wish to express their opinion on the outcome of the review and for NGOs and other stakeholders

to make general comments. Resolution 5/1 also stipulates that NGO participation is to be

informed by Economic and Social Council resolution 1996/31 of 25 July 1996, and NHRI

participation by CHR resolution 2005/74 of 20 April 2005.


260

review or on any developments in the field of human rights. If necessary, the

Council will address cases where States are not co-operating.748

Iran was considered under the Universal Periodic Review (UPR) process

on 15 February 2010, and the Human Rights Council adopted the final UPR

outcome on 10 June 2010.749

Delegations at the HRC made a total of 188

recommendations. Iran fully accepted 123 recommendations, partially accepted

3, rejected 46, and took note of the remaining 16 recommendations.

Seven of the rejected recommendations relate to the visit of some

specific Special Procedures750

although Iran did accept recommendations about

general cooperation with the Special Procedures.751

Iran also rejected to sign and

ratify CEDAW as was recommended by Spain, Luxembourg, Chile, Belgium

and Netherlands. It also rejected to repeal or amend all discriminatory

provisions against women and girls in national legislation (recommended by

Israel), to decriminalize consensual same-sex activity between adults and

eliminate legal provisions discriminatory to women and religious, national and

other minorities (recommended by Czech Republic) and to abolish the death

penalty as had been recommended by Luxembourg, Germany, Slovakia, Brazil,

748

The UPR was established when the Human Rights Council was created on 15 March 2006 by

the UN General Assembly in resolution 60/251. This mandated the Council to "undertake a

universal periodic review, based on objective and reliable information, of the fulfillment by each

State of its human rights obligations and commitments in a manner which ensures universality of

coverage and equal treatment with respect to all States”. On 18 June 2007, one year after its first

meeting, members of the new Council agreed to its institution-building package

(A/HRC/RES/5/1) providing a road map guiding the future work of the Council. One of the key

elements of this package was the new Universal Periodic Review. The mechanism was further

refined during the review process through resolution 16/21 and decision 17/119. These two

documents provided the necessary modifications of modalities for the review in the second and

subsequent cycles http://www.ohchr.org/en/hrbodies/upr/pages/BasicFacts.aspx. Basic facts

about the

UPR’,http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintPro

cedureIndex.aspx. 749

A/HRC/DEC/14/111, http://www.upr-info.org/IMG/pdf/Recommendations_to_Iran_2010.pdf 750

A/HRC/14/12, Paragraph 92, recommendations 5-11 which calls for the facilitation of visits

by Special Rapporteurs including the Special Rapporteur on torture and other cruel, inhuman

and degrading treatment or punishment, the Special Rapportuer on the independence of judges

and lawyers, and the Working Group on arbitrary detention. 751

A/HRC/14/12, Para 90, Recommendations 24-28.

261

Italy, Estonia, Belgium, France and Israel.752

However, it accepted the

recommendation to bring its national legislation into conformity with

international obligations on women’s rights, and to follow the recommendations

of the Special Rapporteur on violence against women, its causes and

consequences, as well as to guarantee the safety of advocates for gender equality

(recommended by Ireland, Estonia, and Austria).753

Some recommendations that

enjoyed support of Iran included promoting economic, social and cultural rights,

and establishing National Human Rights Institutions in conformity with the

Paris Principles.

6.5.1.3.3 Special Procedures and Iran

Special Procedures 754

were established by the Commission on Human

Rights and are currently governed by the Human Rights Council. They deal both

with specific country situations (examining, monitoring and reporting on the

situation of human rights in a specific country) as well as with thematic issues

(dealing with major phenomena of human rights violations worldwide) in all

parts of the world.755

The special procedures offer a flexible response to serious

human rights violations, and may deal with countries and issues beyond the

reach of the treaty bodies. They involve the appointment of an individual –a

752

A/HRC/14/12, p 23, A/HRC/14/12/Add.1,p 3, Position of the Islamic Republic of Iran on

those recommendations which it didn’t support during 7th UPR Session Recommendations 20

and 21: Death sentences are only issued for the most serious crimes and none of the international

instruments totally reject them and countries may choose to use capital punishment. Elimination

of capital punishment emboldens the criminals and leads to repetition of crimes. Islamic

countries believe that punishment of those found guilty will prevent repetition of commission of

a grave and serious crime like murder. For issuing death sentence or Qisas for commission of a

serious and grave crime, the judicial system in Iran exhaust all procedures and remedies

available in the law. It goes through a long process in the lower, provincial and supreme courts

and according to article 18 of the Penal Code the approval of the head of the Judiciary is

required for the enforcement of death sentence ruling. According to the laws of Iran, punishment

for intentional homicide is Qisas. The punishment of Qisas is only applied at the request of

“owners of the blood” and can be commuted to financial penalty (blood money) at their request. 753

A/HRC/14/12, pp 21,11 and 15. 754

See e.g. P. Alston, ‘The Commission on Human Rights’ in Alston, Philip and Crawford,

James,The future of un human rights treaty monitoring, Cambridge University Press, 2000. pp.

126, M. Bossuyt, Marc, The development of special procedures of the united nations commission

on human rights,Human Rights Law Journal, 6, 1985.p179. 755

http://www.ohchr.org/en/HRBodies/SP/Pages/Welcomepage.aspx


262

special rapporteur or representative, or independent expert— or a working group.

As of 1 October 2013, there are 37 thematic756

and 14 country mandates.757

The Islamic Republic of Iran also cooperated with the special procedures

and issued a standing invitation to all thematic special procedures mandate

holders in June 2002. Between 2003 and 2005, six Special Procedure mandate

holders visited Iran: the Special Rapporteur on the right to freedom of opinion

and expression, the Working Group on arbitrary detention, the Special

Rapporteur on the human rights of migrants, the Special Rapporteur on violence

against women and the Special Rapporteur on adequate housing758

all undertook

visits to the Islamic Republic of Iran and issued reports on their findings.759

Afterwards, The Iranian Government agreed in principle to visits by the

Working Group on Enforced or Involuntary Disappearances,760

the Special

Rapporteur on extrajudicial, summary or arbitrary executions761

and the Special

Rapporteur on freedom of religion or belief,762

but the visits have not taken

756 The Commission on Human Rights has created a number of important thematic mandates on

subjects such as: Arbitrary detention, Contemporary forms of racism, racial discrimination,

xenophobia, and related intolerance, Freedom of opinion and expression, Human rights and

extreme poverty, Independence of judges and lawyers, Religious intolerance, Right to

development, Right to education Structural adjustment policies, Torture, Use of mercenaries and

the right of peoples to self-determination Violence against women.

http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx.

757 Such as Afghanistan, Burundi, Cambodia, the Democratic Republic of the Congo (former

Zaire), Equatorial Guinea, Haiti, Islamic Republic of Iran, Iraq, Myanmar, Nigeria, Rwanda,

Somalia, Sudan, and the former Yugoslavia. The General Assembly has established a Special

Committee to Investigate Israeli Practices affecting the Human Rights of the Palestinian People

and Other Arabs of the Occupied Territories

http://www.ohchr.org/EN/HRBodies/SP/Pages/Countries.aspx 758

The full name is Special Rapporteur on adequate housing as a component of the right to an

adequate standard of living, and on the right to non-discrimination in this context.

http://www.ohchr.org/en/issues/housing/pages/housingindex.aspx. 759

E/CN.4/2004/62/Add.2; A/55/346; E/CN.4/2004/3/Add.2 and Corr.1; E/CN.4/2005/85/Add.2;

E/CN.4/2006/61/Add.3; and E/CN.4/2006/41/Add.2. 760

A visit was agreed to for July 2004 but was postponed. Follow-up requests were sent in 2007,

and 2008. 761

Visits were agreed to in principle in September 2006. Several follow-up requests were sent,

the latest in December 2008. 762

Visits were agreed to in principle in November 2003. Several follow-up requests were sent,

the latest in April 2008.

263

place.763

In addition, requests to visit were made by the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment in 2005

and 2007, by the Special Rapporteur on the independence of judges and lawyers

in 2006 and by the independent expert on minority issues in 2008; a reminder

was also sent by the Special Rapporteur on extrajudicial, summary or arbitrary

executions in 2008. No visits by Special Procedure mandate holders have thus

taken place since 2005.

The special procedures mandate holders have also sent a large number of

individual communications on a wide range of human rights issues in the

Islamic Republic of Iran. For instance, a total of 56 communications were sent

in 2007, 42 of which were joint communications. The Iranian authorities

responded in 10 cases.764 More recently, The Special Procedure mandate holders

sent a total of 38 communications to the Islamic Republic of Iran in 2010, of

which 36 were urgent appeals while 2 were allegation letters. The Iranian

authorities responded to six communications in 2010, although several replies

have been received since.765

Again, the Secretary-General expressed its concern

about the low rate of replies to the large number of communications sent to the

Government by numerous mandate holders. Out of 25 communications sent in

2013, the authorities responded to four.766

Following up on Resolutions adopted by the General Assembly on 18

December 2008767

, 18 December 2009768

and 21 December 2010769

, expressing

the serious concern of the international community with regard to the situation

of human rights in Iran, the Human Right Council decided to again appoint a

763

Sixty-third session Agenda item 64 (c) Promotion and protection of human rights: human

rights situations and reports of special rapporteurs and representatives Report of the Secretary-

General on the situation of human rights in the Islamic Republic of Iran, A/63/459, 1 October

2008. 764

A/63/459, 1 October 2008,Sixty-third session Agenda item 64 (c) Promotion and protection

of human rights: human rights situations and reports of special rapporteurs and representatives

Report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran, 765

A/HRC/16/75, 14 March 2011 ,Para 48. 766

A/HRC/25/75, 11 March 2014, Para 39. 767

A/RES/63/191. 768

A/RES/64/176. 769

A/RES/65/226.


264

Special Rapporteur770

on the situation of human rights in the Islamic Republic of

Iran, to report to the Human Rights Council and to the General Assembly the

situation of human rights in Iran.771

It was mainly because of the lack of

cooperation of the Islamic Republic of Iran with the requests of the Assembly

made in General Assembly resolution 65/226 of 21 December 2010, which

highlights further negative developments in the situation of human rights in the

Islamic Republic of Iran and expresses deep concern at serious ongoing and

recurring human rights violations in Iran.772

It was also because Iran has not

invited any thematic Special Procedure mandate holders since 2005, despite a

standing invitation issued to all thematic mandate holders in 2002 and a pledge

to invite two such experts during 2012.773

At the time of writing, the Special

Rapporteur on the situation of human rights in Iran774

continues to carry out his

mandate 775

and has made a request in July 2013 to visit the country to carry out

his mandate.776

With regard to women’s rights, the reports of the Special Rapporteur

consider the issues of inequality, sexual violence and discrimination vis-à-vis

women. More specifically, some of these reports also deal with the difficulties

that women victims face in order to achieve compensation or providing

evidence.777

For example, there are a number of reports of the Special

Rapporteur that address inequality in compensation or testimony etc.

Yakin Ertürk, the UN Special Rapporteur on Violence against Women,

has dealt with the issues of providing evidence in rape cases, the compensation

system in Iran and the rules regarding the testimony of women in judicial system.

She explained,

The rules of evidence discriminate against women. For example, the

value of a woman’s testimony is worth less than that of a man. In criminal

770

Ahmed Shaheed. 771

A/HRC/RES/16/9. 772

A/RES/65/226. 773

A/HRC/22/48, Para 55, A/HRC/19/66, Para 2. 774

Ahmed Shaheed. 775

For instance the most recent reports are: A/HRC/22/56, A/67/369, A/HRC/19/66. 776

A/RES/68/184, Para 16. 777

E/CN.4/2006/61/Add.3, 27 January 2006, Para 55, 56, 57. E/CN.4/2006/61/Add.3, Para 53.

265

offences such as murder or “illicit sexual relations” (zina) the woman’s

testimony is worth only half that of a man and must be corroborated by the joint

testimony of a man in order to be accepted.

She points out the difficulties that women face in order to provide

evidence in the courts. She explains,

A woman also faces serious obstacles to proving that she has been

subjected to violence. Where a woman has been subjected to violence, she can

only prove her claim by presenting several male witnesses. For example, while

rape is illegal, a rape victim must present four male eyewitnesses or three male

and two female witnesses in order to prove the crime. Given that most violence

against women takes place in the private sphere, it is extremely difficult for

women to provide such eyewitnesses to acts of violence. If the defendant is

acquitted, the victim runs the risk of being charged and convicted for false

accusation (qazf) or illicit sexual relations (zina).778

Concerning the right to compensation, she reports on the issue of

discrimination between men and women with regard to Diyah, as discussed

elsewhere in the thesis.779

In addition, in a general way, the high number of reports of special

rapporteurs and representatives and several subsequent resolutions addressed the

issue of discrimination a women. For example, the report of Special

Representative of the Commission on Human Rights on the situation of human

rights regarding the situation of human rights in Iran of 10 August 2001

addressed discrimination against women, physical abuse and rape. It mentioned,

778

E/CN.4/2006/61/Add.3, 27 January 2006, Para 55, 56, 57. She also mentioned in Para 56

“During the Special Rapporteur’s visit to Iran, she was informed of a case of a rape victim who

was charged with adultery due to these evidentiary requirements. She also learned of cases

where women who had acted to defend themselves against sexual assault, rape and other forms

of violence had received severe sentences and where the argument of self-defence was ignored.” 779

E/CN.4/2006/61/Add.3, Para 53. The reports of the Special Rapporteur on the situation of

human rights in Iran in 6 March 2012 also mentioned inequality in compensation, A/HRC/19/66,

6 March 2012, Para 35, The Report on the situation of human rights in the Islamic Republic of

Iran, submitted by the Special Representative in 1998, address particularly the issue of

inequality of compensation between men and women as well E/CN.4/1999/32, 28 December

1998 , P 23.


266

“Women had become more frequently the victims of beatings, rape, abortions,

financial and mental pressures, and verbal abuse from their husbands, brothers

and even children.780

The report of Special Rapporteur on the situation of human

rights in the Islamic Republic of Iran in 2012781

addresses the issue of

discrimination in job opportunities. The report also mentioned discrimination in

marriage in the bill on family protection (that has not been adopted yet) when it

deals with the marriage of an Iranian woman to a non-Iranian man.782

The report

of the Secretary General on the situation of human rights in the Islamic Republic

of Iran in 28 February 2013 expressed concern on the continuing inequality of

women with regard to marriage, family and inheritance matters.783

Moreover, various reports and written statements when dealing with the

right to life address the issue of the high number of death penalties, including as

a punishment for rape. For instance, according to the 2012 Report of the Special

Rapporteur on the situation of human rights in the Islamic Republic of Iran, 81

per cent of all cases of capital punishment in 2011 were related to drug

trafficking, 4.3 per cent and 4.1 per cent were related to Moharebeh (enmity

with God) and rape, respectively. The report requests the Government to meet

the “most serious crime” standard set by international law and to limit this

penalty to the most serious crimes.784

However, according to the Report of the Secretary-General in 22 August

2012785

, Iran attempts to limit the use of the death penalty, but efforts should be

780

A/56/278, 10 August 2001, Para 18, 19. 781

A/HRC/19/66, March 2012, Para 15- 16. The present report is the first to be submitted to the

Human Rights Council and is submitted pursuant to Council resolution 16/9 and covers the

human rights developments since the commencement of the mandate of the Special Rapporteur

on 1 August 2011. The Special Rapporteur e presented his first interim report to the General

Assembly (A/66/374) in October 2011. 782

A/HRC/19/66, March 2012, Para 17. 783

A/HRC/22/48,28 February 2013, Para 22. 784

A/HRC/19/66, 6 March 2012, Para 21. 785

In 2005 the UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69

requesting “Secretary-General to appoint a special representative on the issue of human rights

and transnational corporations and other business enterprises”. The resolution mandated the

Special Representative: To identify and clarify standards of corporate responsibility and

accountability for transnational corporations and other business enterprises with regard to human

rights; To elaborate on the role of States in effectively regulating and adjudicating the role of

transnational corporations and other business enterprises with regard to human rights, including

267

continued. The report acknowledges that Iran passed a revised Islamic Penal

Code that omits the punishment of stoning and the details of this method of

execution but retains the death penalty786

for crimes relating to national security,

Moharebeh (enmity against God), Mofsid-fil-arz (corruption on earth), drug

trafficking, rape, Qisas (retribution in kind) and certain other Hudud

crimes.787

The issue of the death penalty, as a point of divergence between

Islamic law and international law, is discussed further in the next chapter.

through international cooperation; To research and clarify the implications for transnational

corporations and other business enterprises of concepts such as “complicity” and “sphere of

influence”; To develop materials and methodologies for undertaking human rights impact

assessments of the activities of transnational corporations and other business enterprises; To

compile a compendium of best practices of States and transnational corporations and other

business enterprises. For more information please see :

http://www.ohchr.org/EN/Issues/Business/Pages/SRSGTransCorpIndex.aspx . 786

Iran, sometimes, attempted to justify death penalty and mentioned it in its report, for example,

in the report number E/CN.4/1994/50, 2 February 1994, the response was "All human

communities share the common viewpoint that capital punishment should be effected in cases of

major crimes that are under no circumstances pardonable and that endanger the very fabric of

society. In the light of the existence of different concerns in different societies, so far

approximately 20 to 30 countries have eliminated ’execution’ from their penal codes while the

remaining countries have preserved ’execution’ as a form of capital punishment in their penal

codes. The use of execution is justified by Islamic thought, which commands the adherence of

more than 1 billion Muslims in the world. In Islam, capital punishment is rooted in divine

principles. This does not mean, however, that there are no requirements and provisions to be met

before the offender is subjected to such punishment. There are strictly defined conditions that

must exist before execution is used as a punitive measure. These conditions have been

formulated within the Islamic framework of respect for human life. The most central of these

requirements are fair adjudication, the completion of all phases of criminal rules of procedure

and the issuance of the verdict based on relevant laws. "In Iran’s penal code, the verdict of

execution may be mitigated by first degree life imprisonment if there is a stay of execution from

the Office of the Leader. The punishment in cases of premeditated murder is ’retribution’

(capital punishment), which will become non-enforceable when the victim’s immediate relatives

do not insist on the execution of the convicted murderer and decide to pardon him/her. The Holy

Koran encourages the victim’s immediate relatives to pardon the convict. In cases of

premeditated murder, following the pardon granted by the victim’s immediate relatives, the

court sentences the convict to prison in order to protect the society. The categories of crime

punishable by execution are consistently becoming fewer in Iran. It must be borne in mind that

manslaughter is not punishable by execution." 787

A/67/327, 22 August 2012, Para 8,It also continued that “The Secretary-General, while

welcoming the omission of the punishment of stoning, regrets that the revised law fails to take

into account numerous calls by the international community, in particular the United Nations

human rights mechanisms, to fully abolish the death penalty or to restrict its imposition to only

the “most serious crimes”, as stipulated in article 6 (2) of the International Covenant on Civil


268

As a follow- up to the efforts of the monitoring bodies to stress Iran’s

international human rights obligations numerous resolutions, recommendations

and observations on the situation of human rights and women in Iran were

adopted over the years. Already in 2002, the UN General Assembly expressed

its concern about the systemic discrimination against women and girls in law

and in practice, and requested the government to take further measures to

promote human rights and to abide its obligations under the International

Covenants on Human Rights and other international human rights instruments

and to continue its efforts to consolidate respect for human rights and the rule of

law.788 Year after year, the resolutions address the issue of human right violation,

gender inequality and discrimination, for example on 11 March 2005789

, 7

March 2006790

, 1 March 2007791

, 20 March 2008792

, 24 February 2009793

, 26

March 2010794

, 10 February 2011795

, 17 February 2012796

and 20 March

2013.797

The Iranian legal system remains in divergence with international law;

the international community continues to express concern. Therefore the

and Political Rights. Furthermore, concern remains that the punishment of stoning may still be

issued at a judge’s discretion, in accordance with Sharia law or fatwas". 788

A/RES/56/171, 26 February 2002, Para 4. 789

A/RES/59/205, 11 March 2005, Para 2. Expresses its serious concern at: (g) The systemic

discrimination against women and girls in law and in practice, despite some minor legislative

improvements, and the refusal of the Guardian Council to take steps to address this systematic

discrimination, noting in this context its rejection, in August 2003, of the proposal of the elected

parliament to accede to the Convention on the Elimination of All Forms of Discrimination

against Women ; 3. Calls upon the Government of the Islamic Republic of Iran:(a) To abide by

its obligations freely undertaken under the International Covenants on Human Rights2 and other

international human rights instruments, including provisions relating to freedom of opinion and

expression, the use of torture and other forms of cruel, inhuman and degrading treatment or

punishment, the promotion and protection of the human rights of women and girls and the rights

of the child, and to continue its efforts to consolidate respect for human rights and the rule of

law. 790

A/RES/60/171, 7 March 2006, Para 2 (E) and (F). 791

A/RES/61/176, 1 March 2007 , Para 2 (E) and (F). 792

A/RES/62/168, 20 March 2008, Para 2 (E) and (F). 793

A/RES/63/191, 24 February 2009, Para 2 (E). 794

A/RES/64/176, 26 March 2010, Para 2 (E) and (D). 795

A/RES/65/226, 10 February 2011, Para 2 (F), (G), With regard to the issue of inequality, the

resolution of 10 February 2011 expresses its concern with accord to Pervasive gender inequality

and violence against women, and asked to eliminate , in law and in practice, all forms of

discrimination and other human rights violations against women and girls. 796

A/RES/66/175, 17 February 2012, Para 2 (G), ( H). 797

A/RES/67/182, 20 March 2013, Para 2 (H), (I).

269

question arises how effective the UN mechanisms are in addressing the human

rights situation in Iran.

6.6 The effectiveness of the efforts of United Nations Human rights bodies

The United Nations human rights bodies have encouraged Iran to make

progress in meeting its international obligations: The equality in Diyah between

men and women, the improvement in family law, the removal of the punishment

of stoning to death in new penal law, the promotion of the position in

administrative and judicial sectors, the increasing number of NGOs798

in support

of women 799

are all examples800

of issues addressed in UN reports taken up by

Iran.

These improvements demonstrate that recommendations made by

monitoring bodies over a long period of time since the revolution in Iran can

influence the system gradually and assist human rights defenders and NGOs in

promoting change in the legal system.801

Therefore, the improvements made by

798

They are 480 in total. 799

E/CN.4/2006/NGO/53, 24 February 2006, P 2. 800

In addition, the report of special rapporteur on 2008 mentioned promising steps to address

discriminatory laws such as revision in compensation rules and the law on inheritance for

married women. The reports of special rapporteurs in 2009 declared Iran's effort to prevent

stoning or limit the application of the death penalty to juveniles. It encouraged Iran to revise

national laws and prevent discriminatory practices against women. It also encouraged Iran to

cooperate with the United Nations, including OHCHR, to further human rights and justice

reform, and requested the Government to ratify major international human rights treaties, in

particular the Convention on the Elimination of All Forms of Discrimination against Women,

A/64/357, 23 September 2009, Para 67. The Report of the Special Rapporteur in 2012, while

mentioned some recommendation for Iranian Government, explained marked increase in female

enrolment in educational institutions since 1990, however, it suggested Iran to make an effort to

improve female representation in decision-making positions of the judicial system and in other

Government offices where they are underrepresented, A/HRC/19/66, 6 March 2012, Para 44. 801

Amnesty International recommend Iran to take effective measures to protect women from

violence, threats, or coercion by family members, community or religious groups etc in line with

current international criminal law provisions, in particular the Elements of Crimes of the

International Criminal Court, and existing international human rights law and standards on

equality and physical and mental autonomy. It propose the government to define rape and other

forms of sexual violence as sexual conduct in any instance in which the agreement of the woman

or girl involved is not truly and freely given. It also suggested Iran to ratify the Convention on

the Elimination of All Forms of Discrimination against Women (CEDAW), Iran Submission to

the Human Rights Committee FOR THE 103RD SESSION OF THE HUMAN RIGHTS


270

the Iranian government show that the UN human rights bodies can directly or

indirectly protect individuals and help Iran and different countries to make

advances in the human rights situation. The reports clarify the expectations of

the international community, and can be used by governments, as well as by

feminists and NGOs802

and the governments to find out the expectation of the

international community and help to improve the situation of human rights.

Another major asset of the reports and recommendations is that they

emphasize the need for Iran to “give practical and domestic effect” to its

international obligations. The instruments all stress that Iran when it ratifies

various international treaties, is obliged to give real effect to the protection

provided by treaties etc. Not only should domestic law be compatible with the

treaty, proper and effective implementation measures also have to be adopted. In

addition to effective legislative change, the courts, as part of the procedural

system, play a very important role in ensuring practical effect to international

obligations. The ICCPR contains a general provision requiring states to respect

and ensure to all individuals within their territory the rights recognized in the

Covenant. States must ensure that individuals have accessible, effective and

enforceable remedies and obtain reparations where violations have occurred.

The Human Rights Committee, in its general comment No. 31, noted that, in

addition to the State establishing appropriate judicial mechanisms,

administrative mechanisms were particularly required to give effect to the

general obligation to investigate allegations of violations promptly, thoroughly

and effectively through impartial bodies. Failure by a State party to investigate

allegations of violations could in and of itself give rise to a separate breach of

the Covenant.803

The Committee on the Elimination of Discrimination against

COMMITTEE (17 OCTOBER – 4 NOVEMBER 2011), First published in 2011 byAmnesty

International Publications, p 14. 802

See the written statement submitted by the Verein Sudwind Entwick lungspolitik, a non-

governmental organization in special consultative status to Human Rights Council in which Iran

was requested to implement new policies and strategies that are fully compatible with the

declaration on the elimination of violence against women. It also recommended Iran to take

immediate measures to limit violence against women in Iran. It recommended criminalizing all

forms of violence against women in all aspects, physical, psychological, sexual or economic and

applying appropriate restorative punishments for perpetrators of violence against women rather

than the current situation of involving repressive punishments such as the death penalty for rape.

A/HRC/20/NGO/104, 19 June 2012, P 3. 803

A/HRC/19/61, 18January 2012, Para 50.

271

Women recommended, “States parties should take appropriate and effective

measures to overcome all forms of gender-based violence, whether by public or

private act.”804

More specifically, some human rights conventions include various

measures aimed at ensuring effective remedies for persons whose human rights

have been violated. The remedies have partly been included in the provisions on

fair trial, partly in a separate provision. For instance, the ICCPR includes

compensation in the article on fair trial (Article 14), which also incorporates

requirements as to access to courts. In addition, Article 2 ICCPR contains a

State obligation to provide effective legal remedies.

The European Convention protects the right to access to court in Article

6, which is an important element in remedying violations; the right to an

effective remedy in Article 13 and actual reparations in Article 41805

. In Aydin v.

Turkey, a case on the alleged rape and ill-treatment of a female detainee and the

failure of authorities to conduct an effective investigation into her complaint the

European Court of Human Rights held that, "The remedy required by Article 13

must be "effective" in practice as well as in law, in particular in the sense that

its exercise must not be unjustifiably hindered by the acts or omissions of the

authorities of the respondent State".806

804

Committee on the Elimination of Discrimination against Women , General Recommendation

No. 19 (llth session, 1992). 805

Article 1 of the American Convention contains a general legal obligation to respect the

Convention and Article 25 contains the right to judicial protection. Under the rule of law,

effective remedies, effectiveness of justice, notably in providing effective recourse to anyone

who alleges that her or his rights have been violated, is essential. Without such recourse, justice

is of little use. 806

The Court recalls at the outset that Article 13 of the Convention guarantees the availability at

the national level of a remedy to enforce the substance of the Convention rights and freedoms in

whatever form they might happen to be secured in the domestic legal order. The effect of this

Article is thus to require the provision of a domestic remedy allowing the competent national

authority both to deal with the substance of the relevant Convention complaint and to grant

appropriate relief, although Contracting States are afforded some discretion as to the manner in

which they conform to their obligations under this provision. The scope of the obligation under

Article 13 varies depending on the nature of the applicant’s complaint under the Convention.

Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law,

in particular in the sense that its exercise must not be unjustifiably hindered by the acts or


272

All these international documents stress that human rights protection

cannot be achieved when States refuse to take effective and practical measures

to implement the treaties at the domestic level.

6.7 Conclusions

As is clear from the review of the international instruments in previous

chapter and the way Iran deals with these rules, regarding the issues of women’s

rights, inequality between men and women, the difficulties in providing

evidence, capital punishment and marital rape etc., Iran is not in compliance

with its obligations under international human right treaties. Therefore, from the

perspective of international law, Iran should take action to end violations in

these areas and fulfill the legal requirements of its treaty obligations. 807

Many problems arise with regard to the invocation of human rights

treaties in domestic courts. Some relevant treaties, such as the Convention on the

Elimination of All Forms of Discrimination against Women have not been ratified

by Iran. The domestic effect of treaties obligations may be weakened by the

adoption of a subsequent domestic law that takes precedence under domestic

law. Although there is a degree of flexibility within Islamic law, the

(interpretation of) the requirement in Iranian law that international treaties

should be compatible with Islamic law has in practice prevented women to

enjoy the protection offered by international treaties before domestic courts in

Iran, even if in principle treaties ratified by Iran can be invoked domestically.

This is particularly the case when human rights treaties deal with issues such as

the rights of women, sexual crimes etc. These issues are very sensitive, both

because they are taboo in society, and because current Iranian law is based on an

interpretation of Islamic law that results in some respects in discrimination

against women. Because of the sensitivity of the issues, judges and lawyers

prefer to avoid considering international instruments in the courts, and will

rather use the various available local, domestic and Islamic rules that deal with

omissions of the authorities of the respondent State (57/1996/676/866) 25 September 1997,

http://www.hrcr.org/safrica/enforcement/aydin_turkey.html 807

In addition, Soft law international instruments should be taken into account to improve the

situation of women in Iran gradually and indirectly and as an incentive to remove discriminatory

rules from the legal system.

273

the position of women or sexual offences. In the absence of Iranian research on

why judges and lawyers refrain from making use of international instruments,

UN documents speculate on why discrimination against women still prevails in

the minds of legal practitioners. Some documents point to religion; others to

culture or to politics as an explanation. For example, Yakin Ertürk, analyzes the

problem very well. She declared,

Violence against women in the Islamic Republic of Iran is ingrained in

gender inequality, which is upheld and perpetuated by two interrelated factors:

(a) patriarchal values and attitudes based on male supremacy, and (b) State-

promoted institutional structures based on gender-biased, hard-line

interpretations of religious principles. While the former is a universal and

historically rooted phenomenon, the latter is specific to the gender politics in the

contemporary Islamic Republic of Iran. Both factors represent male-

empowering values, laws and practices, making it difficult for women to escape

public and private violence.808

The report by the Special Rapporteur on Iran in September of 2012 is

also significant because it addressed the cultural problems and requested the

government to consider this problem in its strategies to enhance the situation of

women. It held,

The Special Rapporteur also continues to underline the importance of

perpetuating a culture of tolerance, and urges the Government to prevent

discrimination against women and girls in all spheres of public life.809

In summary, the reasons that impede women that are victims of sexual

violence to enjoy the protection offered by international instruments at the

domestic level are as follows:

1- Islamic rules have priority above all laws including international instruments.

According to the Iranian Constitution all laws are subject to Islamic law. Judges

are not allowed to implement decrees and regulations which are contrary to

Islamic rules, Parliament cannot enact laws at variance with Islamic laws.

808

E/CN.4/2006/61/Add.3, 27 January 2006, p 2. 809

A/67/369, 13 September 2012 , Para 78.


274

2- The definition of crimes and penalties within Iranian criminal law is fully

based on a particular interpretation of Islamic rules.

3- Although individuals can in law invoke international instruments before

domestic courts, the legal culture does not allow it. Judges enjoy a wide

discretion to interpret Islamic law and to analyze the inconsistency between

Islamic law and international documents. Invoking international law in cases of

sexual violence may well create additional problems for victims. It probably will

face victims with different kinds of problem if they invoke international

documents in this crime.

4- The current political situation makes it impracticable for victims to achieve

their rights through this process. Morover, many of the relevant treaties

including rights of women such as CEDAW are not ratified by Iran.

Efforts should continue to be made to convince the Iranian legal system

that it should abide by its international obligations, and to improve legal culture

so that victims are able to invoke international human rights instruments in

domestic courts. This will be a long-term process. It requires that scholars and

politicians in Iran are informed and aware of the international obligation of Iran

to fulfill its commitments regarding women' rights and to remove discrimination

against women. Iran is not only obliged to fulfill its international treaty

obligations, it is also obliged to obey the rules of customary international law in

order to respect, promote and protect human rights.

In addition, if Iran wishes to enhance the situation of women and protect

them, some re-interpretation of its basic norms, including some Islamic rules in

line with the current needs and societal contributions of women as well as with

universal human rights standards is necessary. The recent amendments on

equality in Diyah, child custody and the minimum age of marriage as well as the

stopping the punishment of stoning to death etc. show that this can be done.810

810

E/CN.4/2006/61/Add.3, 27 January 2006, Para 65.

275

PART III:

Discussion and Conclusion

277

7 Chapter 7: Protection of victims: Challenges and opportunities

Chapter 7: Conclusions: Protection of victims;

Challenges and opportunities

7.1 Introduction

Protecting victims of rape in Islamic countries in general and Iran in

particular, raises the issue of divergencies between Islamic law (and its

interpretation by Iran) and international law and whether these divergencies can

be reconciled.

7.2 Divergencies between Islamic and International legal perspective on

the rape issue

Having discussed the way rape is dealt with within Islamic law, the

Iranian legal system and in international law, this part will explore the extent to

which different readings and interpretations of Islamic texts can contribute

towards identifying and bridging the gaps between international law and Islamic

legal systems. For a start, it is worth providing a brief explanation on the

relationship between human rights and Islamic law and thereby analyze whether

Chapter 7: Conclusions: Protection of victims; Challenges and opportunities

278

or not the intellectual, ideological and political differences can impact on

providing and protecting human rights laws.

Among Muslim scholars, three different views are expressed on the

relationship between Islamic law and human rights:

1- Conflict between religion and human rights;

2- Unity between religion and human rights; and

3- Harmony between religion and human rights.

First, those who believe in the conflict between religion and human

rights are divided into two groups. One group consists of secular forces while

the other group comprises of religious fundamentalists or traditionalists.811

The

latter group claims to exclusively access the truth. This group believes that

human beings are not able to find out the truth, which remains divine and can

only be told by God. It is manifested in His religion; and thus, human rights and

any human products are not capable of discovering the truth for human

beings.812

811

Fundamentalists: Fundamentals are those knowing all the truth in their monopoly and

regarding the others as astray who should be guided by them. Their ideological megalomania

and conceit is a criterion for classification of rights of humans and implementation of violence is

considered as one of their ways and they are similar to a political sect than an intellectual sect.

Traditionalists or religious conservatives: Traditionalists are imitators before they are Mujtahid

and without consideration of circumstances of time and changeable social conditions, they are in

the area of Ijtihadat of predecessors and they do not know the issues of new era. They are most

mental and religious movement. Although religious conservatives have traditionalism, but they

know circumstances of time and even they resist against modernism so fundamentalists and

traditionalists are not the same and anywhere they are placed behind one another, they are

considered as two movements which offer similar causes and reasons. 812

A- A group making contrast in terms of defense from religion and rejection of democracy,

human right and indulgence: Philosophy of human right. Javadamuli, Abdullah Philosophy of

human right, Asra, 1996.Sermons of MesbahYazdi in the Friday prayer of Tehran. B- Among

foreigners offering contrast in terms of defense from democracy and rejection of religion: Lewis,

Bernard,Islam and the west, Oxford University Press, USA, 1993.

The following resources and instances may be mentioned about this approach: 1- Naser,

Mohammad Global announcement of human rights and alavi attitude, Publication of culture of

people, 2003.2- Muhaghegh Damad, Sayyed Mustafa International friendly human

rights(islamic strategy), Center of publication of Islamic sciences, 2004.

279

The second view rejects the idea of the conflict between religion and

human rights. In this approach, human rights are the ultimate message of

religion; which is also an extreme position. Proponents of this approach believe

that human rights are a single concept expressed in two languages, which can be

interpreted as a soul in two bodies. The message of Islam is identical to the

message of human rights proclaimed at the global level. This group tries to find

Quranic verses, Ahadith and any other evidence equivalent to the contents and

articles of human rights. Of course, the group seeks to offer valid reasons for

their beliefs; it is deemed a virtue and pride for Islam that the more recently

proclaimed human rights can already be observed in the Quran and tradition.

The proponents of this approach easily ignore the decrees (Rule or Fatwa of

jurists), or some Ahadith etc., which are obviously in conflict with human rights.

The third group of Muslim scholars does not fully reject the claims of

supporters of unity. However, this group seeks to show that there is no conflict

between religion and human rights. They contend that although religion and

human rights lack complete unity, they can be harmonious with each other and

therefore complement each other since they belong to two different historical

backgrounds. The difference between the second and third approaches is that the

second approach makes human rights similar to religion and concludes that they

have a divine, but not human origin and there is a companionship between them,

whereas the third group does not consider that human rights have a divine

origin.813

If one accepts that in essence there is harmony rather than conflict

between religion and human rights, it should be possible to settle points of

dispute, and thus pave the way for more implementation of human rights in

Islamic countries.814

This study on the protection of victims of rape is situated in the third

group. It agrees with the ideas of many Muslims scholars that assert that the

relation between Islamic law and international law can be peaceful, as Islam

813

The third group believes that human rights and religion may represent same ideas. 814

Emadalddin, Baghi, The focuses of dispute of human rights and islam,Siyasatnameh(The

specific magazine of human rights)appendix of Shargh newspaper dated 2006 and also it is

offered in the third international conference of human rights at the university of Mufid, 2005.


280

carries the message of peace and justice.815

As it has been demonstrated in the

first chapter of this research, many of the conflicts with international law in

Islamic countries are politically motivated rather than arising from the Islamic

ideology itself. Domestic policies deviate from the spirit of Islam, and result in

difficulties for victims of rape.

When Muslim scholars review the universal declaration of human rights

and other international documents, they identify the following major areas in

which dispute takes place:

1-Philosophy of human rights, 2-Capital punishment, 3-Elections and

majority vote, 4-Legal and religious discrimination, 5-Freedom of religion, 6-

The right to change one’s religion 7-Freedom of speech, 8-Equality between

rights of women and men, 9-Slavery and trafficking, 10-Rights of children.816

Among these issues of tension, some create difficulties specifically for

women that are victims of rape in some Islamic states such as Iran: the

inappropriate definition of rape and its (capital) punishment (in Islamic criminal

law) and the inequality between men and women (as regards blood money in

815

Kalin, Ibrahim, Islam and peace: A survey of the sources of peace in the islamic

tradition,Islamic Studies, 2005. Malekian, Farhad,Principles of islamic international criminal

law: A comparative search, 5, Brill, 2011. PP 111, 117, Norman, Julie Rape law in islamic

societies: Theory, application and the potential for reform, CSID Sixth Annual Conference,

“Democracy and Development: Challenges for the Islamic World”, ( April 22 - 23, 2005).CSID

Sixth Annual Conference, “Democracy and Development: Challenges for the Islamic World” ,



(2000), Syracuse University Press, 1997 , Wadud, Amina, Alternative qur’anic interpretation

and the status of muslim women,Windows of faith: Muslim women scholar-activists in North

America, 2000. 816

Emadalddin, Baghi, The focuses of dispute of human rights and islam,Siyasatnameh(The

specific magazine of human rights)appendix of Shargh newspaper dated 2006 and also it is

offered in the third international conference of human rights at the university of Mufid, 2005 ,

Kadivar, Mohsen, Vogt, Kari, Larsen, Lena and Moe, Christian, Human rights and intellectual

islam,New Directions in Islamic Thought: Exploring Reform and Muslim Tradition, 2009.

Kadivar surveys six areas of conflict between historical Islam and human rights norms: (1)

inequality between Muslims and non-Muslims, (2) inequality between men and women, (3)

inequality between slaves and free human beings, (4) inequality between commoners and jurists

in public affairs, (5) freedom of conscience and religion versus punishments for apostasy, and (6)

extra-judicial punishments, violent punishments, and torture.

281

Islamic criminal procedures). These are the points that will be elaborated on in

the next sections.

7.2.1 Capital punishment

According to Article 3 of the Universal Declaration of Human Rights:

“Everyone has the right to life, liberty and security of person.”

Whether the protection of the right to life requires the abolition of the

death penalty remains controversial. The use of the death penalty in (Islamic and

other) countries has been criticized from a human rights perspective.

Muslim scholars interested in human rights face a dilemma. On the one

hand, they support human rights for several reasons such as public interest or

ideological defense of human rights. On the other hand, they think that the

abolition of death penalty amounts to a denial of one of the Quranic principles

and undisputed facts. For instance, the Quran regarding the right to Qisas says

that,

And we ordained for them therein a life for a life, an eye for an eye, a

nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal

retribution. But whoever gives [up his right as] charity, it is an expiation for

him. And whoever does not judge by what Allah has revealed - then it is those

who are the wrongdoers.817

In line with the above Quranic verse, the right to life is interpreted as

coinciding with the prohibition of willful murder (Arbitrary killings). In Iranian

criminal law, the penalty for rape is death. This is based on Hadith rather than

on any Quranic verse. Therefore, Article 6, par. 6 ICCPR is disregarded. Article

6 as a whole reads as follows,

1. Every human being has the inherent right to life. This right shall be

protected by law. No one shall be arbitrarily deprived of his life.

817

5:45.


282

2. 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 and not contrary to the

provisions of the present Covenant and to the Convention on the Prevention and

Punishment of the Crime of Genocide. This penalty can only be carried out

pursuant to a final judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is

understood that nothing in this article shall authorize any State Party to the

present Covenant to derogate in any way from any obligation assumed under

the provisions of the Convention on the Prevention and Punishment of the Crime

of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or

commutation of the sentence. Amnesty, pardon or commutation of the sentence

of death may be granted in all cases.

5. 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.

6. Nothing in this article shall be invoked to delay or to prevent the

abolition of capital punishment by any State Party to the present Covenant".

As already stated, Iran ratified the ICCPR before the 1979 revolution

without any reservations. Iran has not derogated from the Convention afterwards,

and has reported (all be it irregularly) to the Human Rights Committee. Article 6,

ICCPR clearly limits the use and the manner of administration of the death

penalty. With regard to rape, there are huge discussions about the deterrent

effect of the death sentence, the evaluation of which is outside of the scope of

the thesis.818

However, for the purpose of this research, the following paragraphs

818

See for instance, Ehrlich, Isaac, The deterrent effect of capital punishment: A question of life

and death, (1973), , Ellsworth, Phoebe C and Ross, Lee, Public opinion and capital punishment:

A close examination of the views of abolitionists and retentionists,Crime & Delinquency, 29,

1983. Passell, Peter and Taylor, John B, The deterrent effect of capital punishment: Another

view,The American Economic Review, 1977 , Powell Jr, Lewis F, Capital punishment,Harv. L.

283

will evaluate the disagreement between Islamic law (Iranian interpretation) and

international law regarding death penalty as a punishment of rape.

At the start, it should be noted that treaties and conventions are open to

interpretation, in the same way as Islamic sources of law may be interpreted by

human beings. The term “most serious crime” used in Article 6, par.2 ICCPR

has thus been subject to various interpretations by different legal institutions.

International treaties are to be interpreted in accordance with the basic

interpretation rules of international law found in the Vienna Convention on the

Law of Treaties (VCLT).819

Although Iran is not a party to the VCLT, the rules

on interpretation are a codification of customary international law.820

Iran is

therefore bound by these rules not through the treaty obligation, but through

custom. Accordingly, Iran must interpret Article 6 of the ICCPR in line with the

rules on interpretation contained in the VCLT.

In addition, general comments, by treaty bodies such as the Human

Rights Committee are accepted as authoritative or persuasive interpretations of

the provisions in UN human rights treaties.821

The travaux préparatoires serve as

a complementary means of interpretation. Further sources are other UN

documents that even if they are not binding may reaffirm international

commitments of states parties. They include UN resolutions of various bodies

and organs,822

such as the General Assembly, the UN Human Rights Council,

and reports of the Council’s Special Procedures, such as Special Rapporteurs.

Rev., 102, 1988 , Zimring, Franklin E and Hawkins, Gordon,Capital punishment and the

american agenda, CUP Archive, 1989. 819

The VCLT mentions that an international treaty shall be interpreted in good faith and based

on the ordinary meaning of the terms in the treaty, on the context and on the object and purpose

of the treaty, and on the subsequent practice as agreed on by the states parties to that treaty.

Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, Treaty

Series, vol. 1155, p 331. Article 31 of the VCLT; See also Report of the International Law

Commission, May – August 2012, UN Doc A/62/10, p 80. 820

See e.g. Case Concerning the Territorial Dispute (Libya v. Chad), ICJ, 1994, Para. 41. 821

Nowak, Manfred Un, Covenant on civil and political rights, ccpr commentary, 2 nd

rev,Edition, NP Engel, Kehl, 2005. Para 6 of Introduction; see also the International Law

Commission on reservations to treaties. 822

In particular, resolutions and documents of the General Assembly and of the Human Rights

Council.


284

Article 6 ICCPR prescribes six principles: the principle of non-

arbitrariness, prohibition of mandatory death penalty, the conformity

requirement, fair trial guarantees, the right to clemency, and use of death penalty

only for serious crimes.823

The ICCPR permits the death penalty, but only under certain

circumstances. The use of the word “arbitrarily” in Article 6(1) suggests that

there may be other exceptions to the right to life.824

The limited scope of

lawfulness for death penalty was confirmed by the UN Human Rights

Committee, which stated that: [w]hile […] States parties [to the ICCPR] are not

obliged to abolish the death penalty totally they are obliged to limit its use. The

UN Human Rights Committee (in General comments 6) and international

experts point out that the wording of paragraphs (2) and (6) of Article 6 suggests

that the abolition of the death penalty, though not mandatory, is a preferred

option and is the ultimate and desired goal in the field of human rights.825

As to the death penalty for rape in Iran, the question is whether Iran

fulfills all the requirements of article 6, when it administers the death penalty for

rape. A close examination of the Iranian legal system shows that Iran violates

two legal requirements of ICCPR set in article 6, on limitations of the use of

death penalty, i.e. on the mandatory nature of the death penalty and the

requirement that the death penalty should only be imposed for the most serious

crimes:

1- Mandatory death penalty: Iran’s mandatory capital punishment for

rape does not comply with article 6, as in its system, it is not possible to

consider whether this exceptional form of punishment is appropriate in the

specific circumstances of each case. In Thompson v St. Vincent and the

823

Ota Hlinomaz, Scott Sheeran & Catherine Bevilacqua, The death penalty for drug crimes in

iran:Analysis of iran’s international human rights obligations,University of Essex, Human right

in Iran Unit, March 2014. 824

Schabas, William,The abolition of the death penalty in international law, Cambridge

University Press, 2002. P 47. 825

HRI/GEN/1/Rev.9 (Vol. I), 30 April 1982, Para 6 and Second Optional Protocol to the

International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

Adopted and proclaimed by General Assembly resolution 44/128 of 15December 1989, which

has been ratified by 81 sates.

285

Grenadines, the UN Human Rights Committee clearly stated that a system of

mandatory capital punishment would deprive the author of (…) the right to life,

without considering whether this exceptional form of punishment is appropriate

in the circumstances of his or her case.826

Therefore, the mandatory system of

death penalty itself is a violation of Article 6(1) of the ICCPR.827

The UN

Human Rights Committee, in Carpo et al. v The Philippines confirmed its

previous jurisprudence and stated that,

Mandatory imposition of the death penalty constitutes arbitrary

deprivation of life, in violation of article 6, paragraph 1, of the Covenant, in

circumstances where the death penalty is imposed without regard being able to

be paid to the defendant's personal circumstances or the circumstances of the

particular offense.828

The Special Rapporteur on extrajudicial, summary or arbitrary

executions in its 2007 report, stated that [m]aking the death penalty mandatory

for certain crimes (…) is illegal under international human rights law829

and

that individualized sentencing by the judiciary is required in order to prevent (…)

the arbitrary deprivation of life.830

The imposition of the mandatory death penalty (for rape) in national

legislation fails to ensure that every single case is individually and adequately

examined. Only the judiciary can consider all relevant aspects of an individual

case even when the national legislation precisely and narrowly defines the

offences for which death penalty shall be mandatorily imposed.831

The ICCPR

requires individualized sentencing by a competent court for the imposition of the

death penalty.832

Consequently, the mandatory death penalty prescribed by

826

Eversley Thompson v. St. Vincent and the Grenadines, HRC, 18 October 2000, Comm. No.

806/1998, para.8.2; For HRC’s earlier case law on the issue, see in particular Lubuto v. Zambia,

HRC, 31 October 1995, Comm. No. 390/1990. 827

Kennedy v. Trinidad and Tobago, HRC, 26 March 2002, Comm. No. 845/1998, para.7.3. 828

Jaime Carpo et al. v. Philippines, HRC, 9 May 2003, Comm. No. 1077/2002, Para. 8.3; See

also Pagdayawon Rolando v. Philippines, HRC, 8 December 2004, Comm. No. 1110/2002, Para.

5.2. 829

Doc A/HRC/4/20, 29 January 2007 , Para 66. 830

Doc A/HRC/4/20, 29 January 2007 , Para 4. 831

Doc A/HRC/4/20, 29 January 2007 , Para 56, UN Doc E/CN.4/2005/7, Para 63. 832

Article 6(2) and Article 14(5) of the ICCPR.


286

national legislation for rape does not allow a proportional case by case approach

and therefore constitutes arbitrary deprivation of life under Article 6(1) of the

ICCPR.833

In addition, as mentioned earlier in Iran the death penalty is enacted in

order to protect victims. However, since the punishment is severe and the

evidentiary system is deficient, judges avoid issuing this sentence and

consequently victims are likely to be brought to court for committing Zina.

Considering case-by-case approach would offer more protection to victims.

2- Death penalty only for the most serious crimes: since rape

punishment in Iranian criminal law is based on Islamic sources of law e.g.

Hadith, Iran argues that this crime can be categorized under the most serious

crimes, as it has stated in its responses to the reports of special rapporteurs on 22

August 2012.834 However, it is possible to argue that capital punishment for rape

does not meet the threshold of “most serious crimes”. “Most serious crime” is

not defined in Article 6, ICCPR. Although many countries such the UK, at the

time of drafting, proposed including a full list of offences for which death

penalty could not be imposed835, it was decided to use the expression “the most

serious crimes” instead.836Consequently states have some margin in interpreting

the text. However, the VCLT requires that interpretations should not go against

the object and the purpose of the treaty. The Human Rights Committee in its

general comment No 6 mentioned that the expression ‘most serious crimes’ must

be read restrictively to mean that the death penalty should be a quite

exceptional measure.837 However, the Committee refrained from listing “the

most serious crimes.”

Light can be shed on the meaning of the convent through use of the

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death

833

Eversley Thompson v. St. Vincent and the Grenadines, HRC, 18 October 2000, Comm. No.

806/1998, Para 8.2, Kennedy v. Trinidad and Tobago, HRC, 26 March 2002, Comm. No.

845/1998, Para 7.3. 834

A/67/327 , 22 August 2012. 835

UN Doc E/CN.4/SR.149, para 35. 836

Schabas, William,The abolition of the death penalty in international law, Cambridge

University Press, 2002. pp. 305, 310 – 311. 837

HRC, General Comment No. 6, Para 7.

287

Penalty, adopted by UN Economic and Social Council (ECOSOC)838

and

confirmed and endorsed by the UN General Assembly.839

The first principle

indicates that the most serious crimes should not go beyond intentional crimes

with lethal or other extremely grave consequences.840

According to the 1995

report of the Secretary-General on capital punishment, the first principle in the

Safeguards implies that the offences should be life-threatening, in the sense that

this [lethal or other extremely grave circumstances] is a very likely consequence

of the action.841

In light of this clarification, a mandatory death sentence for rape

allows insufficient room for interpretation by the judge. The 2001 report of the

Secretary-General on capital punishment criticized the expression used in the

first principle in the Safeguards for being vague and unspecific. The report

suggested a more precise interpretation of the first safeguard by stating that the

term ‘most serious crimes’ could be restricted to crimes that result in the death

of another person as a direct consequence of a malicious and intended action of

another party.842

The UN Special Rapporteur on extrajudicial, summary or arbitrary

executions stated that the most serious crimes are crimes where it can be shown

that there was an intention to kill which resulted in the loss of life.843

Clearly,

not every case of rape, leads directly or indirectly to the death of the victims.

The UN Commission on Human Rights also commented on the use of

death penalty. In its 2004 resolution on the question of death penalty, the

Commission urged “all States that still maintain the death penalty [t]o ensure

that the notion of ‘most serious crimes’ does not go beyond intentional crimes

with lethal or extremely grave consequences and that the death penalty is not

838

ECOSOC Res. 1984/50, 25 May 1984. 839

UN General Assembly Res. 39/118: Human rights in the administration of justice, 14

December 1984, P 2. 840

1984 ECOSOC Safeguards on the death penalty, Para 1. 841

UN Doc E/1995/78, 8 Jun 1995, para 54. 842

UN Doc E/CN.15/2001/10, 29 March 2001, Para 144. 843

The 2007 Report of the Special Rapporteur on extrajudicial summary or arbitrary executions,

Para. 53; The Special Rapporteur added that this interpretation of most serious crimes is based

on detailed examination of the jurisprudence of the major UN bodies responsible for interpreting

these provisions; See also Report of the Special Rapporteur on extrajudicial, summary or

arbitrary executions, 29 May 2009, UN Doc A/HRC/11/2/Add.1, para 187.


288

imposed for non-violent acts.844

” In 2011, Iran’s periodic review under the

ICCPR was examined by the UN Human Rights Committee. The Committee

expressed its concern regarding the extremely high and increasing number of

death sentences … the wide range and often vague definition of offences for

which the death penalty is applied.845

The Committee urged Iran to revise the

Penal Code to restrict the imposition of the death penalty to only the ‘most

serious crimes,’ within the meaning of Article 6, paragraph 2, of the Covenant

and the Committee’s general comment No. 6.846

The UN Human Rights Committee was more specific in its Concluding

Observations on Iran in 1993. Although the Committee did not explicitly

mention rape, it considered that Iran violated the ICCPR when imposing the

death penalty for crimes of an economic nature … or for crimes that do not

result in loss of life.847

In sum, the UN Human Rights Committee and other UN bodies take the

position that the death penalty should never be imposed for crimes that do not

involve intentional murder.848

In conclusion, the mandatory imposition of the death penalty in cases

where rape is established is incompatible with Article 6 of the International

Covenant on Civil and Political Rights.

7.2.2 Equality between women and men (regarding blood-money)

The issue of equality between men and women has always been a source

of contention between Islamic law (or states who adopted Islamic law) and

international human rights law. It is a typical example of the gap between the

two systems that originates in a particular interpretation and political usage of

the tradition of Islamic law with an adverse impact on women’s rights.

844

UN Commission on Human Rights Res. 2004/67: Question of the Death Penalty, 21 April

2004, Para. 4(f). 845

UN Doc CCPR/C/IRN/CO/3, 29 November 2011, Para 12. 846

UN Doc CCPR/C/IRN/CO/3, 29 November 2011, Para 12. 847

CCPR/C/79/Add.25, 3 August 1993, Para 8.

848 UN Doc A/HRC/4/20 , 29 January 2007, Para 52.

289

There is a tension between sexual discrimination inherent in traditional

Islamic law and Articles 1, 2 and 7 of the Universal Declaration of Human

Rights. According to the UDHR articles, all humans are born with equal dignity

and laws; everyone is entitled to all rights without distinction of any kind such

as sex. All are equal before the law and are entitled without any discrimination

to equal protection of the law. However, in traditional views on Islamic law,

men and women do not appear to be equal in numerous cases such as in family

law, and civil and judicial rights.

Article 16 of the Universal Declaration of Human Rights provides that:

(1) Men and women of full age, without any limitation due to race,

nationality or religion, have the right to marry and to found a family. They are

entitled to equal rights as to marriage, during marriage and at the dissolution of

it.

(2) Marriage shall be entered into only with the free and full consent of

the intending spouses.

(3) The family is the natural and fundamental group unit of the society

and is entitled to protection by the society and the State.

Article 3, ICCPR urges countries to ensure gender equality: State Parties

should ensure the equal right of men and women to the enjoyment of all civil and

political rights set forth in the present Covenant. Article 1 of the Declaration on

the Elimination of Discrimination against Women states that, discrimination

against women, denying or limiting as it does their equality of rights with men,

is fundamentally unjust and constitutes an offence against human dignity. The

Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), adopted in 1979 by the UN General Assembly defines

discrimination against women as:

. . . any distinction, exclusion or restriction made on the basis of sex

which has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital status, on a basis


290

of equality of men and women, of human rights and fundamental freedoms in the

political, economic, social, cultural, civil or any other field.

Clearly, the above articles, and CEDAW in particular, contradict some

rules of traditional Islam. Even though Muslims believe in and emphasize the

peace, justice and equality message of the Quran asserting that men and women,

as human beings and God’s creations, are equal; the practical application is

different. Differentiation is justified on the grounds of the “inherent differences”

between females and males or different tasks assigned to men and women at

both the society and family levels. For example, in some Islamic countries e.g.

Iran, in law men bear the financial responsibility to provide for the family,

which may be the cause of some different rights for men and women etc.

Muslim scholars try to explain that these differences do not affect women's

dignity as human beings and that they do not represent a symbol of supremacy

of men over women.849

However, it turns out that this is not true and these

points of view impact on the equal rights between men and women particularly

in relation to family law and mainly in terms of marriage without coercion, the

right to freely choose a spouse, rights and obligations of married spouses,

custody and guardianship of children, polygamy or equality in Blood money or

Diyah, etc.850

For example, Iran as a country has constructed a legal system based on

Islamic law, which gives priority to Sharia over all laws and interprets it in

accordance with the Shiite school of Islamic thought. Under this system, all

rules need to be interpreted in light of Islamic rules. Article 19 Iranian

Constitution stipulates that equality should be ensured amongst all Iranians,

irrespective of their ethnic group or tribe, color, race, languages. Equality should

thus also be guaranteed to women. But Article 20, that deals specifically with

849

Naseef, Fatima Umar and Abedin, Saleha Mahmood,Women in islam: A discourse in rights

and obligations, International Islamic Committee for Woman & Child, 1999. P 57, El-

Bahnassawi, Salem, Women, between islam and world legislations: Comparative study,1985. pp.

107–130. 850

One of these contrasts is in Diyah or blood money which is typically related to compensation

of the loss imposed to women victim of rape. According to Islamic law the amount of Diyah for

men is different from that for women it is half of the amount dedicated to men although at the

time of doing this research rules concerning Diyah for women are changing for the better in Iran.

291

equality between men and women, provides equal protection “in conformity

with Islamic criteria.”

For many years after the 1979 revolution, women could not enjoy equal

rights especially in the case of Diyah, which was in clear contrast with

international law as pointed out several times by monitoring bodies of the

United Nations. As explained in the previous chapters, according to

conservative views, women should only receive half of the Diyah awarded to

men. Traditional thinking of Islam will not support the idea of removing all

forms of discrimination -one example of which is Diyah- against women from

Islamic laws. On the other hand, Islamic law offers such opportunities to

provide equal rights and equal compensation. Some modernist authors have

engaged in an alternative interpretation of those texts in the sources of Islamic

law that seem to create inequality between men and women and attempted to

eliminate any idea of superiority of men over women by placing more emphasis

on the spirit of Islam and its message on equality and justice.851

As a result, under the pressure of women activists and modernist thinkers,

the Iranian legislative system has recently reformed some of these rules

especially with regard to Diyah.852

This clearly demonstrates that, nowadays,

there is a tendency among Iranian Muslims and researchers to provide a new and

alternative definition of women’ rights or a new reading of Islamic law.853

Although there is still a long way to go for this new trend to be heard and

followed officially by the legislative system, it is a good and promising sign

851

Naĺim, Abd Allāh Aňhmad,Toward an islamic reformation: Civil liberties, human rights, and

international law, Syracuse University Press (Syracuse, NY), 1996. 852

The issue of inequality in Diyah and the punishment of stoning to death have been criticized

several times by UN monitoring body in order to protect women and finally it led to reforming

related rules. The issue of Diyah has been discussed in Chapters 3 and 6. 853

El Fadl, Khaled Abou,And god knows the soldiers: The authoritative and authoritarian in

islamic discourses, Lanham, New York, Oxford: University Press of America, 2001.pp 62–82.

Several modernist authors acknowledge the possibility of a different, anti-discriminatory reading

of some of these traditions, and emphasize on a very low degree of authenticity of many of these

traditions. This method attempts to go to the primary texts that traditionalist usually refer to and

propose different readings of those texts, especially taking into consideration the notion of

justice and equality They even sometimes challenge the rules based on the circumstances and

conditions of revelations and emphasize on the nature of today’s living conditions.


292

towards introducing a new and changing face of Islamic law and it is hoped that

this will lead to providing equal rights in other aspects such as family law etc.

7.2.3 Defining rape; marital rape and sexual penetration

As explained in the first part of the thesis, some definitions connect rape

with Zina, which results in the non-recognition of marital rape. This definition

of rape only includes the sexual relationship between two adults who are not

married or who stand in an ownership relationship.

The non-recognition of marital rape conflicts with the definition of rape

proposed by international law, as recognized under article 3 of the ICTY

Statute854

, in the Kunarac case of February 2001855

or in the UN Report of the

Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and

Slavery-like Practices during Periods of Armed Conflict.856

On the issue of sexual penetration, the final report of the Special

Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-

like Practices during Armed Conflict asserted that the definitions of rape used in

the ICTY and the ICTR were consistent in recognizing that,

(i) Rape is a serious crime of violence; (ii) rape is not limited to forcible

sexual intercourse; (iii) both women and men can be victims and perpetrators of

rape; and (iv) coercion, as an element of rape, has a broad meaning which is

not limited to physical force.857

Restricting rape to penetration of the vagina, as traditional Islamic law -

as applied in Iran - suggests, excludes other forms of sexual violence against

women. This is thus another point of dispute because the definition of rape

proposed by international law includes marital rape and other forms of sexual

854

-Furundzija Judgment, Para 180. 855

Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT- 96-23/1-T, Judgment (Feb. 22, 2001),

available at http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf, Para 460. 856

E/CN.4/Sub.2/1998/13, Final Report of the Special Rapporteur on the Situation of Systematic

Rape, Sexual Slavery and Slavery like Practices During Periods of Armed Conflict , 22 June

1998,p 24. 857

E/CN.4/Sub.2/2000/21,6 June 2000, Para 46 .

293

violence like forced oral sex etc. (as it has been discussed in chapter Five).

However, in order to avoid an expansion of the imposition of the death penalty

in Iran, marital rape and other forms of sexual violence should be included in

other types of crimes, such as Tazir, which are not punished with death penalty.

7.3 Protecting victims of rape; where do Islamic law and human rights

instruments meet?

As explained above, traditional interpretations of Islamic rules can

conflict with international law and consequently impinge on the relations

between Islamic states and the international community. The question now is

whether international human rights instruments and Islamic law can work

together to protect rape victims in Islamic states.

The post-revolution legislator in Iran has tried to create a new criminal

justice system consisting of both the Islamic penal law and the rules of modern

penal law. It was the duty of the legislator to introduce the highest possible

measure of Islamic laws into the Iranian legal system. In that process the spirit,

aims and purposes and general standards and rules of Islam were not always

respected. Given some inconsistencies with the needs of modern society,

sometimes the criminal system including crimes and punishments was criticized

by social scholars and jurists. Sometimes, the courts and administrative powers

discarded some of the severe provisions of the penal code under social pressure.

For instance, the amputation of the hand of a thief as 'Hadd' punishment, the

punishment of stoning to death or the amputation as 'Qisas'-punishment have

been seldom or never performed and the offenders for the most part, have been

convicted to discretionary (Tazir) punishments. However, these efforts are

insufficient, as underlying problems were not solved through legislative, formal,

criminalization and penalization mechanisms and attenuating measures taken

were irrelevant to rape cases.

In order to address the problems faced by rape victims more effectively,

this thesis focuses on solutions that are workable and of immediate practical use

to victims. Mirroring the three approaches on the relationship between Islamic

law and human rights, women’s rights defenders in Iran can also be classified

into three groups:


294

1- The first group (accept permanent conflict between Islamic law and

international law) consists of people who believe that Islam is to be promoted as

the only culturally suitable or workable framework for women’s emancipation.

A secular framework is often seen as an imposition of Western values. This

reflects a common view that Western feminist movements do not adequately

represent the interests and specific issues related to the needs of Muslim

women.858

2- The second group (Eliminate any role for religion in the public policy) that

includes some western feminists, believes that having a secular worldview about

women's human rights is the best solution to solve women's problems in the

entire world.859

3- The third group believes that applying the capacities of Islamic countries

(or potential) of Islamic law is a good starting point for criticism of the

situation of women and the building of protective strategies. The main idea of

this group is related to the issue whether human rights’ tools are effective in

protecting rape victims in Islamic countries? If they are not, how can these

tools be translated into the different cultural and religious contexts that

populate these countries in order to be effective?

According to third group, by answering above-mentioned questions, it is

possible to explore the relationship between Islamic and non-Islamic human

rights discourse, and highlight the common points that can contribute to an

effective application of human rights tools in Islamic countries.860

Then, the

current protective mechanisms in these countries can be looked at more

858

Bovarnick, Silvie, Universal human rights and non-western normative systems: A

comparative analysis of violence against women in mexico and pakistan,Review of International

Studies, 33, 2007. P 62-72. 859

An-Na’im, Abdullahi Ahmed, Universality of human rights: An islamic perspective,Japan

and international law: Past. Present and Future, Kluwer Law International, The Hague &

London:, 1999. P 320. 860

However, it is also possible that sometimes international law requires something that has no

foundation in Islamic law. In this case, for instance, if an Islamic state has ratified a human

rights treaty, but finds that certain provisions have no foundation in Islamic law, it is still

possible to enter correct and legal reservation to that treaty with accord to international rules.

295

critically from within the system of Islamic rules, and lead to suggestions on

how to improve the protection of victims of rape.

It should be noted that implementation of international human rights law

in different contexts’ is a matter of heated debate. This holds true for the

contribution of the Islamic law itself, in order to protect human rights, which is

also a very controversial issue amongst Muslim scholars. These debates are a

clear indication that effective application of human rights tools for protecting

women victims of rape depends upon the context and the history from which the

notions of human rights were derived as well as the history, religious and

cultural settings of Islamic and non- Islamic countries, particularly the context in

which religious and political standards were created.861

The Declaration on the

Elimination of Violence against Women defines violence against women in

broad terms in order to be easily applicable to different contexts, but there are

problems in translating this conceptualization into Islamic settings. In order to

fully analyze violence against women (e.g. rape), it is important to examine the

context in which violence becomes possible and to evaluate different legal tools

to deal with in that particular context.

Both communalities and differences between Islamic and non-Islamic

discourses as regards sexual crimes exist. The differences make it difficult to

apply human rights tools in Islamic countries such as Iran. A good example is

the traditional Islamic laws on women’s issue or sexual crimes i.e. rape: even

though they intend to be supportive for women, they do not offer fair justice to

women due to the masculine culture prevalent among Iranian judges.

Examining violence against women in Iran reveals that the notion of "violence"

is basically linked to the cultural domination and in some cases,

misinterpretation of the rules of religion (Islamic rules); therefore confirming

the legal, cultural, and religious influence. Moreover, although it is important to

be aware of cultural and religious characteristics when applying human rights

universally, it sometimes seems equally important not to lose sight of the

political issues. The rejection of normative human rights is somehow related to

861

Bovarnick, Silvie, Universal human rights and non-western normative systems: A

comparative analysis of violence against women in mexico and pakistan,Review of International

Studies, 33, 2007. p 62.


296

this subject that was explained in the previous section. For instance, the political

decision that prevents to ratify certain human rights treaties, e.g. CEDAW.

Regarding the Iranian context, some scholars and intellectuals, inspired

by modern hermeneutics, suggest a complete rethinking of the Islamic law.

Despite the richness of these opinions, their theories do not seem to have

considerable influence on the official reading of the Islamic Law by Iranian

authorities. 862

While the authorities should try to strike an acceptable balance

between Islamic Law and modern society, they firmly insist on the traditional

theories of Islamic Law. The clerics of the Council of Guardians argue that the

maximal implementation of Islamic classical law remains the objective of the

Islamic states in justice. So far, it does not seem that new versions of the Islamic

law could change the current criminalization-process into a secular one. 863

Nowadays, the majority of Islamic and Iranian thinkers seem to share the

conviction that an improvement of the legal system is not only necessary but it

is also inevitable. Some of them seek to achieve reform by emphasizing the

principles and spirit of Islamic Law, while others refer to the powers of the

Islamic ruler and his authority in changing the Islamic Law by virtue of interest

('Maslaha'). This group seeks to show that with proper interpretation, methods

and a better understanding of Islam and its ultimate purposes, Islam can progress

and align with new developments in the world.

The dominant discourse is now the modernization and democratization

of the criminal justice system within the context of Islamic societies and

focusing more on the moral and virtual aspects of the Islamic law; something

which seems to be vital for the Islamic revivalists around the world and for their

perspectives of modern law. It seems that through new discourses in Iran, which

are based on the theological and philosophical aspects of Islamic law, the

Iranian version of Islamic criminal justice in particular, can be brought closer to

the international standards of criminal justice. Surely, this development should

862

Mahmoudi, Firouz, On criminalization in iran (sources and features),European Journal of

Crime Criminal Law and Criminal Justice, 10, 2002.p 53. 863

Ibid.

297

be highly appreciated, because it could give an indigenous solution to the clash

between Islam and international law.864

In any case, if one wishes to improve the protection of victims of rape in

the current political situation and legal culture in Iran, one needs to propose

domestic and local suggestions from within Islamic law that can be supported by

Islamic authorities. By proposing such methods the gap that lies between the

realities of the Iranian society and the ideals of the Islamic Law and of the

international community can perhaps be bridged. In fact, the nature of Sharia

and its potential for reform prove that laws and norms derived from Sharia can

be compatible with human rights. This potential has already been evidenced by

recent legislative improvements in the Muslim world, supporting the idea that

Sharia could form a tool for creating compatibility with international legal

norms.865

As Abiad explained,

The use of Sharia by the legislative power could also be reconcilable

with human rights: some comparative aspects of amendments to legislative texts

in the Muslim world show that the reconciliation of this legislation with the

international human rights standards do not necessarily imply a secular legal

framework and could be carried out within the framework of Sharia. Legal tools

such as Ijtihad which exist within the jurisprudential framework of Sharia have

allowed for important reforms in Muslim States.866

Even in the context of Iran, the legislative system cannot enact

unchangeable and permanent laws based on fixed rules of Sharia or even on

never changing interpretations of human right.867

For instance, the improvements

864

Rezaei, Hassan, The iranian criminal justice under the islamization project,ibid. 865

Nassar, Ahmad E, International criminal court and the applicability of international

jurisdiction under islamic law, the,Chi. J. Int'l L., 4, 2003. 866


2009 .

867 Mayer, Ann Elizabeth, The islam and human rights nexus: Shifting dimensions,Muslim

World Journal of Human Rights, 4, 2007. ibid.AL Mayer, 'Shifting Grounds for Challenging the

Authority of International Human Rigrhts Law: Religion as a Malleable and Politicized Pretext

for Governmental Noncompliance with Human Rights' in Sajó, A.,Human rights with modesty:

The problem of universalism, M. Nijhoff Publishers, 2004. P 349, For a detailed analysis on the

subject see Abiad, N.,Sharia, muslim states and international human rights treaty obligations: A

comparative study, British Institute of International and Comparative Law, 2008. pp 119, 120.


298

carried out by Iran resulted in the re-establishment of the Family Protection Act

of 1967 in 1992 in order to amend Divorce rules.868

The former was referred to

as opposite to Sharia after the 1979 Revolution. More recently, stopping the

punishment of stoning to death in the new penal code and reforming the law

regarding the Diyah as compensation, constitute a significant step towards

improving the situation of women.

Therefore, activating the inherent mechanisms of Sharia and interpreting

Sharia in order to reform the law is a possible method to change or adopt new

rules in favor of women. It is worth noting that some efforts have been made by

other Islamic countries in order to improve their law that demonstrates the

flexibility of Islamic law. Clearly, these changes prove that modification is

possible in the framework of Islamic law.869

For example, the legislature of

Egypt with regard to Law No. 1 about the woman's right to divorce870

enforced

in 2000, referred directly to the Quran and the Sunnab to justify its amendment.

It did not make any reference to Juristic interpretations and simply adopted a

new interpretation of the law based on the primary sources of the Sharia.871

In

fact, the inherent flexibility of Sharia through different legal tools creates an

opportunity for interpretation and adaptation to changes of context and

circumstance.872

Making use of the flexibilities of Sharia in order to change

national laws constitutes a significant step towards harmonizing national

legislation with international human rights standards. The approach is supported

by some Muslims and non-Muslims scholars. For example, Khadduri explains

the conception of justice in the following terms: The Western standard proved

868

In 1967, Iran adopted a set of progressive family laws, the Family Protection Act, which

granted women more rights in the family; those rights were expanded in the Family Protection

Law of 1975. Though the act was annulled in 1979 after the Islamic Revolution when Sharia law

was re-introduced, the Family Protection Acts still stand out today for having been ahead of their

time, particularly in a Muslim-majority country. A 1992 law amended regulations on divorce,

extending a wife’s access to divorce granting women more grounds for requesting a divorce.

869 Abiad, Nisrine, Human rights before the courts in muslim states,J. Islamic St. Prac. Int'l L.,

5, 2009.

870 For a comprehensive e account of the reform of divorce law in Egypt, see: Moussa, Jasmine,

The reform of shari’a-derived divorce legislation in egypt: International standards and the

cultural debate, vol. 2, (2006, accessed 3 December 2009). 871

The reforms of rape law in Pakistan is another example of the application of basic Islamic

principles for the advancement of women’s rights.

872 See Naĺim, Abd Allāh Aňhmad,Toward an islamic reformation: Civil liberties, human

rights, and international law, Syracuse University Press (Syracuse, NY), 1996.

299

unsuitable without adaptation to local values and traditions.873 Donna E.Arzt

shares the idea of J.N.D Anderson in her paper. She says that,

J. N. D. Anderson has described the ways in which Islamic family law

the last bastion of Shari'a in countries that had otherwise introduced Western

codes of law-was reformed "from the inside," neither rejecting Shari'a outright

nor maintaining it in fact, by: (1) the use of procedural devices to preclude the

application of substantive laws left unchanged; (2) a careful choice from

eminent jurists of the past of ideas amenable to reform; (3) the reinterpretation

of ancient texts through ijtihad; and (4) the promulgation of administrative

instructions to the courts’ Given that many of the doctrines and beliefs which

form Islamic concepts of human rights are as close to the warp and woof of the

Islamic way of life as concepts of the family, these techniques could serve as

appropriate models for reform. In fact, the process of formulating a modern

Shari'a of human rights from a number of sources has begun.874

In the same vein, Abddullah A. An-Na’em, one of the scholars who

advocates solutions from within Islam, proposes: breaking human rights

dependency and support local constituencies which are engaged in struggles to

legitimize and uphold international human rights standards in their own

societies.875

He advocates allowing modern Muslim jurists to state and interpret

the law for their contemporaries even if such statement and interpretation were

to be, in some respects, different from the inherited wisdom. He restricts

restatement and reinterpretation only to the social and political aspects, in

response to the changing social and political environment.876

Therefore, the adoption of a harmonized viewpoint for protecting women

victims against rape could be possible by using the mentioned instruments. A

873

Khadduri, Majid, The islamic concept of justice,Baltimore: The Johns Hopkins University

Press, 165, 1984. P 204. 874

Arzt, Donna E, Application of international human rights law in islamic states, the,Hum. Rts.

Q., 12, 1990. P 2282. 875

An-Na’im, Abdullahi Ahmed, Universality of human rights: An islamic perspective,Japan

and international law: Past. Present and Future, Kluwer Law International, The Hague &

London:, 1999. P 324. 876

An-Na'im, Adbullahi A, Religious minorities under islamic law and the limits of cultural

relativism,Hum. Rts. Q., 9, 1987. PP 333-335.


300

number of Islamic scholars believe that Sharia can be reconciled with

international human rights norms through the application of jurisprudential

techniques, such as Ijtihad, Maslaha or Maqasid Al Sharia etc., which are

themselves integral to Sharia. The application of these tools, particularly Ijtihad,

has been widely used among modern Islamic feminists, such as Margot Badran.

The use of domestic and local methods leads to better results in Islamic

countries, because these methods are more easily accepted by both the people

and the governments of these countries. The external imposition of human rights

does not seem to work because Muslims tend to think that they are faced with a

choice between their identity and belief on the one hand and a commitment to

human rights on the other. They think that their religion is being invaded and

ignored.877

In addition, governments tend to tolerate internal views more than

external ones.

Applying domestic solutions in order to bridge the gaps and using the

capacities and potentials as described above is more likely to result in the

effective protection of women in the immediate future. This does not, however,

mean that international human rights law is to be ignored. Local women’s rights

advocates can refer to international human rights principles to support their

activist work. Various strategies may be adopted: legal ones involving lawsuits

or lobby work for legal change; or informal action-oriented strategies including

citizens’ tribunals, petition campaigns, documenting and exposing abuses in

reports. The international can support the domestic: - domestic legal change can

be promoted with the support of the international system in order to ensure a

better protection of rights. As OHCHR Quick Response Desk explained in

November 2004, the international community can only help women if activists

and advocates interact with the system regularly: communications [to

governments] are based on the information received from you and your network

of sources. Both your work and that of your partners is of crucial importance to

877

An-na’im Abdullahi Ahmed, Universality of Human Rights: An Islamic Perspective in Ando,

Nisuke, Japan and international law: Past, present and future, International Symposium to Mark

the Centennial of the Japanese Association of International Law. The Hague: Kluwer Law

International, (1999).International Symposium to Mark the Centennial of the Japanese

Association of International Law. The Hague: Kluwer Law International. P 330.

301

protect the rights of people.878

This implies that it is important to both improve

the protection of human rights at the local level, and to properly assess the local

context in order to avoid difficulties and increase the chance of success.

Finally, international human rights law can be an effective framework to

address the issue of violence against women. Women’s global movements have

made substantial advances by using the international human rights system or

human rights ideas in their local or national campaigns.879

They have

documented violations, and thus contribute towards informing and changing

public opinion. They can also encourage or pressure domestic legal, social

actors and women’s rights advocates to find and propose local solutions that

take the legal and cultural system into account.

7.4 Conclusion

As discussed above, the Islamic law and international human rights law

differ significantly as regards the issue of rape and protection of women victims

of rape. The differences reside mainly in the imposition of capital punishment,

the inequality between men and women and the definition of rape. As explained,

these divergences emerge mainly because of the political use of Sharia. When

Islamic states choose a particular model of Islamic law, this impacts on their

international relations. The gaps between the two systems can be bridged,

however, and hopefully, as a result improved protection will be available to

victims. There is great potential in Islamic law to develop mechanisms that

protect victims of rape that are acceptable to people and governments alike.

Similarly, international human rights law can inspire defenders of women’s

rights, and provide them with international assistance in stopping violence

against women in locally appropriate ways. The chapter argues that even though

challenges remain, there are ample opportunities to combine both systems of

law with a view to providing effective protection, taking into consideration the

specificities of each context.

878

Quick Response Desk, Special Procedures Branch of the OHCHR, Geneva 2004, Bauer, J.,

Hélie, A., Rights, Democracy and Laws, Women Living under Muslim,Documenting women's

rights violations by non-state actors: Activist strategies from muslim communities, Rights &

Democracy, 2006.p 129. 879

ibid. p 63.

Chapter 8: Summary and recommendation: Current practice and future direction

302

8 Chapter 8: Conclusions and recommendations: Current practices and future

directions

Chapter 8: Summary and recommendations:

Current practices and future

directions

The present study has identified points of dispute and divergence

between Islamic law and international human rights law with regard to rape. It

hopes to contribute towards answering the following questions: How do

different interpretations of Islamic texts by different schools of Islamic law

impact on the rights of women victims of rape? How does the Iranian legal

system interpret Islamic sources of law making regarding rape? How does

international law (in particular international human rights law) protect women

victims of rape? How could international human rights instruments be effective

in offering protection to victims of rape in the context of a legal system based on

Islamic law (e.g. Iran)? How is international law implemented within the Iranian

legal system?

303

The main aim of the concluding chapter is to summarize the findings

and to formulate some specific and general recommendations on how women

victims of rape can be assisted.

8.1 Islamic legal perspective on rape

The questions that guided the present study as outlined above were

answered by critically analyzing the different definitions of rape, its punishment

and the procedural rights of women victim of rape (the right to provide evidence

and the right to compensation) in Islamic law taking into account all the Islamic

schools of law and with a specific focus on Iran.

The contemporary treatment of rape in the penal codes of some Islamic

states based on a certain interpretation of Islamic text has drawn attention over

the last two decades when women in several cases claimed to have been

sexually assaulted but were unable to prove non-consent. These cases have

largely arisen in the context of national efforts to implement Islamic rules in

domestic legislation by bringing laws in-line with perceived Sharia guidelines.

In the present study, they were analyzed with the aim to identify the points of

dispute. The results indicate that Islamic law is interpreted differently by the

different schools, and this impacts on the rights of victims. The different

interpretations of Islamic rules are caused by the political and cultural norms of

the different Islamic states.

The first contentious issue is the definition of rape itself, and the varied

categorizations of the crime. In some cases, women claiming to have been

sexually assaulted end up being punished for fornication (Zina) on the allegation

that their accusations amount to confessions to consensual illegal sex. These

cases clearly illustrate the problems that arise when rape is defined as a coercive

form of Zina. The definitional problems have prompted journalists, human

rights groups and Muslim reformers to ask whether contemporary “Islamic”

rape laws are really in line with the classical Islamic juristic tradition, or

whether they misrepresent that tradition. A central point of dispute is whether

Islamic juristic discourse truly places rape – i.e. a man’s unlawful sexual

intercourse with a woman against her will – under the category of Zina, or not.


304

An analysis of the sources of law making in Islamic law demonstrated

that early Islamic legal discourse developed a coherent notion of what could be

called “rape” as a punishable crime. While certain schools of Islamic law (e.g.

Hanafi or Hanbali) categorized rape as a coercive type of fornication, or Zina, 880

others such as the Shiite or Malikie differentiated it from Zina. Hence, some

Muslim reformers suggest that the conflation of rape and Zina stems not from

the religious tradition, but rather from a misunderstanding of that tradition by

modern Sharia legislation. For example, Asifa Quraishi argued that in classical

Islamic law, rape was categorized not as a variant of Zina, but as a type of

bodily injury (Jarh) for which blood money (Diyah) was due. The argument that

rape has not been traditionally defined in Islamic law as a variant of Zina, but

rather as a type of bodily injury (Jarh) or as a variant of brigandry (Hirbah), was

taken up in non-academic circles as well. For instance, another paper published

by Karamah (Muslim Women Lawyers for Human Rights) suggested that the

Hadith literature as well as classical Islamic legal works categorized Zina and

rape as entirely distinct acts. However, some scholars such as Azam argued

differently. For her, it is not possible to separate Zina from rape in the tradition

of Islam. She believed that the basic definition of Zina that had emerged by the

end of the formative period did not distinguish between consensual and coercive

forms of unlawful sex. 881

The second controversy arises with regard to the right of victims at the

procedural stage, in particular the right to provide evidence and the right to

compensation. By considering and assessing evidence offered in Islamic law by

different jurists, it can be concluded that the knowledge of judges

(circumstantial evidence) under some conditions can be acceptable in crimes

such as rape as the crime affects both the right of God and the rights of

880


early legal reports,The journal of law and religion forthcoming, SPRING 2013. 881

She illustrates more that “This is clearly illustrated through the legal reports including

examples of non-consensual relations. They either used the term Zina, or prescribed penalties

widely associated with Zina, or used the term Hadd – a category of particularly grievous sins

that in the post-Quranic discourse was specified to include Zina, among other acts. There is,

however, little or no suggestion anywhere in this body of reports that the term Zina was reserved

for only consensual relations, or that rape was relegated to any other legal category, such as

brigandry (Hirbah) or injury (Jarh). The early authorities seem to have agreed that Zina

comprised any illicit cohabitation between a man and a woman, without regard to volition.”

305

individuals.882

When the codes of evidence do not distinguish between rape and

Zina, they will be considered as one single crime. Consequently, the right of

victims of rapes will be violated because the individual dimension is ignored. In

fact, it is not acceptable that, on the one hand, the Islamic legislator determines

the evidence proving a crime; and on the other hand, imposes some

requirements for using these types of evidence which do not seem to work in

practice. Lack of comprehensive and independent rules on evidence, weak

legislation and ambiguities with regard to the nature of the crime prevent judges

from applying their knowledge. The provision of separate evidence codes is an

important subject in the judicial system. Reform of these codes can prevent

confusion and inconsistent application by the judges. Therefore, it is the task of

Islamic jurists to remove the above-mentioned ambiguities by using accepted

religious methods such as interpreting religious and legal sources independently

through skillful methods (Ijtihad) etc. and pave the way for the legislators to

reform the legal system; more details are provided in the recommendations

section.

On the right to compensation, the study found that compensation can be

awarded to women victim in the context of the Islamic law through Diyah and

compensation excess of Diyah. However, a misunderstanding of Islamic rules

prevails on this issue. While traditional Muslims believe that Diyah for women

should be half of that given to man, the modern view of Islamic law urges

providing equal Diyah and equal compensation to both men and women. This

issue has not yet been resolved, but revision is required given the unfairness of

the current situation.

882

Dayyani, Abdualrasul Certitude of the conscience of judge brief comparison of legal system

of islam, iran and france,The monthly journal of procedure, No 51, 2005. P 25, Saket,

Mohammad Hossein,Procedure in islamic laws, Mizan publication, 2004. P 324-325.

This principle requires all evidence of both parties to be given in a particular period of time and

also the right of defense has to be specified for both sides in the reasonable respite. Both sides

should know what evidence can be documented for the sentence and so they should not be

deprived from their effective means of defense and be able to offer their certain evidence against

knowledge of the judge. Therefore, the judge cannot immediately issue his sentence for instance

immediately when the opinions of the experts are acknowledged and before hearing the opinions

of both sides although experts’ opinions could have brought about knowledge for the judge.


306

In order to improve the situation of women in Islamic states and women

victim of rape in particular, the research recommends and suggests Islamic

states to provide a creative interpretation of Islamic law that complies with

social, cultural and political particularities of that context. As it is clear from

above mentioned findings, women victims of rape in Islamic countries face

many problems arising from the traditional interpretation of Islamic texts. Some

Muslim thinkers favor secularization of the law in order to recognize the rights

of women in general and right of these victims in particular. Feminist

movements were created with the following motto: classical’ Islamic laws are

outdated and should be replaced by another kind of law altogether.883

However,

as this study indicates, the laws applicable in rape cases in many Islamic

countries, regardless of whether they are derived from Shariah or whether they

are secular but justifiable under Shariah884

- as claimed by Farida Shaheed the

line between ‘secular laws’ and ‘religious laws’ is not so clear in reality-885

, are

greatly influenced by the social, political and cultural conditions of the

country.886

883

Mehdi, Rubya, The offence of rape in the islamic law of pakistan,Women Living under

Muslim Laws: Dossier, 18, 1997.P 107. 884


Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. P 310. 885

Women Living under Muslim Laws (Organization), International Solidarity Network, And

Femmes Sous Lois Musulmanes,Knowing our rights: Women, family, laws, and customs in the

muslim world, Women living under muslim laws (WLUML), 2003. P 28. 886


Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. P 318-319.

According to Sonbol, “the laws intended to universalize law and make the codes equally

applicable to all, actually introduced new forms of discrimination”. Some of the problems are:

first, the concept of “social background” was supposed to be considered in proving the

occurrence of rape which would lead to the discrimination of gender and social class. Second,

the cancelation of the mechanism of Diyah which was common in classical Islamic law,

removed the criminal nature of rape. Third, the new law, considered crime as just “criminal”

which means the victim has no right to ask for compensation until the court has regarded the

accused as guilty. Another problem of the new law is that, the police usually fail to do a

thorough investigation and as a result in many cases due to the lack of investigation the rape

cases are not taken to the courts. Also, the modern courts require the victims to have an attorney

which causes many poor victims to relinquish their complaints. As a result, not only

secularization of law has guaranteed justice for the woman victims of rape and resulted in

reduction of violence but also it has created these problems. For instance in Egypt show

secularization of the law in support of women victims of rape did not lead to a decrease in

307

This research suggests that some fundamental reforms in Islamic law

will lead to sustainable improvement in the protection of women victims of rape.

We agree with some of the contemporary Muslim thinkers, who have suggested

a new approach to interpreting the Islamic law. These thinkers include Wadud,

Yacoob, Quraishi, Alwazir, all of whom support the idea that changes to Islamic

rules and principles brought about by Muslims will be more helpful because

they resonate with the context. Reform should take place using the framework

and mechanisms available within Islamic law.887

As Mehdi writes,

(…) traditional Islamic law needs reinterpretation and (that) religion

should not be confused with a patriarchal social structure. Some reformist and

progressive feminists are already calling for an “Islamic framework for the

women’s movement” that is giving rise to a “feminist interpretation of Islam.888

In the same vein Wadud states: Islam does not encapsulate the full

breadth of the potential for Islam. The question is to wrestle the eternal system

away from its contextual foundation.889

She continues:

We need to have a dynamic notion of shari’ah, which includes past

jurisprudence; obviously includes our primary sources; but includes all of these

things, with radical reformation in thought, so that they are applied “in our new

circumstances.890

Yacoob also believes that the reformist Muslim scholars have tried to

work within Islamic tradition by focusing on a progressive understanding of

Islamic teaching which will lead to social changes. She agrees that the notion of

violence against them. This may be due to the fact that the socio-political situation of the

country was not considered while introducing this reform. 887

Mir Hosseini, Ziba, Criminalizing sexuality: Zina laws as violence against women in muslim

contexts,Violence Is Not Our Culture: The Global Campaign to Stop Killing and Stoning

Women and Women Living under Muslim Laws, 2010. 888

Mehdi, Rubya, The offence of rape in the islamic law of pakistan,Women Living under

Muslim Laws: Dossier, 18, 1997. P 98. 889

Wadud, Amina., Interview (pbs frontline)

<www.Pbs.Org/wgbh/pages/frontline/shows/muslims/interviews/wadud.Html>,March 2002. 890

ibid.


308

justice inherent to Islam can be a potential source for encouraging more just

approaches to rape cases.891

In addition, reformist Muslim scholars support the argument that the new

understanding of Islamic rules puts much emphasis on the general principles of

Islamic law that contain notions of justice, honor, privacy etc. as a potential to

reform the laws regarding controversial issues such as rape.892

Similarly,

Quraishi emphasizes the importance of honor, privacy, and dignity for women

as a source for reform of rape law, recognizing that the established importance

of such concepts by the Prophet illustrates the “inherent gender-egalitarian

nature of Islam” that is “too often ignored.”893

Quraishi suggests that concepts

like Haraba and Jirah discussed in classic Islamic law are good starting points

for dealing with rape cases in a more just way.894

Alwazir refers to the Quranic

verses in which the women's honor has been emphasized as a mechanism to

consider women's rights and dignity in contemporary judicial processes. 895

In the context of this approach, Zainah Anwar recommends considering

the socio-historical context of the Quran in dealing with Islamic law. She states

that, in the end, the objective of the teachings of Islam, the objective of shari’ah

law, is to ensure that justice is done.896

In this regard, Quraishi upholds that: a

greater challenge, perhaps, is changing the cultural attitudes towards women

which helped to create the existing laws in the first place. She concludes saying

that: ongoing effort must be undertaken simultaneously with any official

legislative changes, in order to give real effect to such legislation, and to give

891

Norman, Julie Rape law in islamic societies: Theory, application and the potential for reform,



Challenges for the Islamic World”. 892

ibid. 893



(2000), Syracuse University Press, 1997. P 287. 894

Ibid. P 302. 895

Alwazir, Atyaf, Ymeni women: The bearers of honor,Al-Masar, Winter 2004. P 30. 896

Anwar, Zainah, Islamisation and its impact on democratic governance and women’s rights in

islam: A feminist perspective,Center for the Study of Islam and Democracy, Washington, DC, 16,

2004.

309

life to the Qur’anic verses honoring women.897

As Mir Hussein says: strategies

should be diverse and multi-level, and must be able to engage in an internal

discourse within communities. Given the intimate links between Islamic legal

tradition and culture, it is essential to frame arguments for reform and change

concurrently within both Islamic and human rights frameworks.898

Therefore, the modern interpretation of Islamic laws cannot happen

without addressing the influence of cultural and political elements, that act as a

stumbling block to doing justice to women victims of rape.899

Hence, Islamic

societies should adopt the best interpretation of Islamic rules that is compatible

with their principles and with modern society. As this review of the literature

shows, and in summary, it is argued that solving the difficulties of the Islamic

criminal system can best be solved by employing religious methods and local

facilities coming from local and domestic contexts of religious countries.

Ignoring the capacities of the Islamic system may lead to negative results and

thereby worsen the women’s situation instead of improving it.

Awareness raising among women is another important strategy. Women

appear not to be aware of their rights under Islam. If they were, their

involvement in public debates would increase, and result, it is hoped, in pressure

on governments to change unjust law. 900

Awareness should also be raised among

men about women's rights and the honor and dignity Islam has given to them.

Alwazir correctly thinks that the awareness efforts should begin with Islamic

NGOs901

and that the groups and individuals who are active in human rights

897



(2000), Syracuse University Press, 1997.P 302. 898



Women and Women Living under Muslim Laws, 2010. 899

Women Living under Muslim Laws (Organization), International Solidarity Network, And

Femmes Sous Lois Musulmanes,Knowing our rights: Women, family, laws, and customs in the

muslim world, Women living under muslim laws (WLUML), 2003., P 33. 900

Alwazir, Atyaf, Ymeni women: The bearers of honor,Al-Masar, Winter 2004. P30. 901

Ibid.


310

affairs can play a key role in this regard.902

She explains how NGOs can issue

press statements, hold conferences, organize trainings, and take other steps to:

push for the development of an Islam that upholds the principles of justice,

equality, freedom and dignity within a democratic nation-state framework.903

Such activism should also target Muslim scholars, who should be invited to

focus more on women’s issues and in particular the sexual violence and rape

against women. As Sonbol says: the subject of rape reveals it to be an almost

untouched subject in Middle East scholarship except for a rare reference.904

As this research suggests, Islamic teachings reflected in the Quran, the

prophet's sayings and Fiqh, and the requirements of the modern world with the

help of the process of Ijtihad taken up by Muslim scholars can lead to creating a

modern form of law which can guarantee justice, honor and dignity for all

members of Islamic society including abused women.905

8.2 International legal perspective on rape

The question of whether or not international law can be applied in

Islamic contexts and can thus be used to protect women victims of rape was

addressed in the second part of the present study.

The subjects and sources of international law are changing. While states

are still the key players in international law, individuals are also taking a more

important role as a consequence of humanization and globalization.

International law now also aims at providing proper mechanisms to protect

individuals in both war and peace. At the same time, the theory of sources of

international law is changing as well. Soft law plays an important role in the

field of human rights. International courts have started dealing with the

902

Anwar, Zainah, Islamisation and its impact on democratic governance and women’s rights in

islam: A feminist perspective,Center for the Study of Islam and Democracy, Washington, DC, 16,

2004. 903

Ibid. 904


Societies, IEd. Pinar Ilkkaracan. Istanbul: WWHR, 2000. P 309. 905




Challenges for the Islamic World”.

311

protection of individuals, including against rape that is considered an aggressive

crime both in times of war and peace. However, international law lacks a

consistent approach to the issue. Divergencies with regard to the element of

consent in the definition of rape remain. When international courts define rape,

they focus more on coercion than on non-consent. This approach should be

reversed. A non-consent based standard would encompass more sexual acts that

the individual typically experiences as unwanted than a definition requiring

force. Moreover, in the context of armed conflicts, the argument was raised that

a non-consent based definition of rape is inappropriate, since the coercive

circumstances of a conflict cause a presumption of non-consent, rendering such

an inquiry superfluous. Because the ad hoc tribunals and the ICC deal with rape

in the context of three international crimes - genocide, war crimes and crimes

against humanity - genuine consent is arguably impossible and should not be a

legal requirement. Given that rape will be assessed in different contexts and as

an element of different kinds of international crimes, the definition of rape

should be unified, but nevertheless flexible among the various tribunals. In order

to improve the international legal protection of women victims of rape, it is

essential to provide an international definition of rape that all international

criminal courts should use.

The right of victims to providing evidence is now deeply rooted within

international standards and jurisprudence. However, unfortunately, the duty to

assist victims in giving evidence is not explicitly mentioned in international

treaties and needs to be constructed by interpreting other rights. Explicit

recognition could include rules on the different types of evidence that can be

presented in courts, protection of victims against secondary victimization, and

rules on participation in criminal proceedings.

Right to compensation and reparation has been supported by various

international and European human rights treaties and declarations. Some

international criminal tribunals provide compensation to victims as well. For

instance, Article 75 of Rome Statute of the International Criminal Court deals

with reparation to victims. The Trust Fund established under article 79 of the

Rome Statute is one important contribution to the Rome Statute’s overall goal to

restore peace by dispensing retributive justice to criminals and restorative justice


312

to victims. Even though there is special attention paid to victims of sexual

violence in contemporary international law, it is still very unlikely to seek

compensation before domestic courts in many countries due to the prevailing

discrimination of women and the lack of awareness of gender issues. Women in

particular often face normative and practical barriers that prevent them from

accessing the benefits of compensation programs. Therefore, the research urged

the International community to provide enough opportunities for women to

achieve legal, social, political and economic equality in society and help them

overcome their loss and suffering.

Generally speaking, it should be noted that international law will be able

to contribute significantly towards protecting women victims of rape in an

Islamic context, if it is informed by a full understanding of the legal, social and

cultural characteristics of rape crime in Islamic contexts as well as of the

political justification of rape law, which is mainly based on certain

interpretations of Islamic rules. Rape and Zina laws should not be the only ones

to be studied since they are part of a complex system of applying Islamic rules

and different methods of law-making.

Some feminists believe that the problem lies in applying Islamic rules.

However, it is not also strategic to ignore the power of religious discourse in

Islamic contexts as well as cultural and social matters.906

Disregarding the

particularities of the Islamic context may result in presenting protective

strategies that can be considered as good only in theory, but not in practice.

This research suggests that for international law to be effective in such

contexts, human right norms and their values should be assessed in local,

cultural and religious traditions.907

Human right advocates should acknowledge

that each context has its own characters and specificities. Therefore, justice in

these cases requires not secularization, but legal reforms of Islamic rules as well

as modification of cultural and social matters. Having a reformist approach to

906



Women and Women Living under Muslim Laws, 2010. P 27. 907

Cowan, J.K., Dembour, M.B. and Wilson, R.A.,Culture and rights: Anthropological

perspectives, Cambridge University Press, 2001.

313

Islam as a religion, which reflects justice, dignity and honor in a modern society,

is the method that has been supported by a group of Islamic feminists.908

They

believe that reforms should include cultural and social norms, because the latter

automatically affect the interpretation of Islamic rules. In other words, what we

should keep in mind is that secularization or ignoring the religion of Islamic

states does not necessarily improve the legal system or change cultural norms

for the benefit of women. In addition, secularized law can lack legitimacy for

failing to take cultural, religious, and historical precedents into account.909

According to Abdollah An-Na’im, in these twenty-first century conditions,

activists should be able to engage in an internal discourse within Muslim

communities.910

In addition, this research suggests to international organizations to

support feminists who adopt a reformist approach and attempt to reform law

from within the Islamic law. In other words, Islamic approaches, feminism and

human rights perspectives as well as international law, altogether, can mutually

strengthen and build team working together to protect victims of rape.

Furthermore, women’s rights advocates can get ideas from international law

and international human rights in their works and examine how the international

community addresses women's rights and how it suggests dealing with

women’s issues and victims. International human rights monitoring bodies can

evaluate the situation of women in different contexts and sometime put pressure

on governments or on local activities to make changes in their societies.

Therefore, the framework for human rights as a tool can be very helpful

as regards informing communities and changing the public opinion. Active

interaction between local women’s rights advocates and international

communities can contribute towards protecting victims with different religions,

cultural and social norms which will help to put women, especially women

908




Challenges for the Islamic World”. 909

Ibid. 910

An-Na‘Im, Abdullahi Ahmed, The role of “community discourse” in combating “crimes of

honour”: Preliminary assessment and prospects,Honour’: Crimes, Paradigms and Violence

against Women, 2005.


314

victims, at the center of all the strategies and make decisions based on that and

to increase the chance of changing the situation of human rights in an Islamic

context.

8.3 Application of Islamic law and International law at the domestic level

In order to provide a real example of Islamic states, the interpretation of

Islamic law in Iranian criminal law was examined in depth. Then the

implementation of international law in this system and Iran’s international

obligations were analyzed. The Iranian legal system demonstrates the practical

difficulties that arise from specific interpretations of Islamic law. The review of

rules that apply to rape cases in Islamic societies such as Iran shows that rape

has not been defined in a separate category. In Iranian law, in line with the

definition of Zina, marital rape is not included in the category of rape. In Islamic

culture, which is the firm foundation of the Iranian law, there are so many words

of moral advice which explicitly state that women are entitled to sexual

gratification and to receive good treatment during their married lives. However,

these advices do not find their way into legislation, due to the disagreement on

the definition of Zina and the lack of an autonomous definition of rape.

Secondly, rape only applies to sexual intercourse with the opposite sex, which

means that use of external objects or other methods such as forced oral sex are

not considered as rape, but rather placed in the category of other crimes.

Unfortunately, in many cases, the mental, emotional, and physical damages of

the use of such methods amount to as much suffering as physical rape. The use

of capital punishment for perpetrators of rape has created a conflict between

restorative justice and retributive criminal justice. Inappropriate use of this

punishment, and the gap between the punishments of Zina and that of rape,

make it difficult for the judges to strike a balance between response and crime.

As to the right to provide evidence, the Iranian legal system recognizes

the knowledge of judges in Hudud crimes, and thus at first sight supports

victims. In addition, the Iranian legal system accepts a shift of the burden of

proof when it says: If a woman claims to be forced to sexual relationship, her

claim should be accepted until the other party (man) proves otherwise. This

article comes from the Shiite tradition and could be very helpful for victims.

However, since the punishment is capital and there are no specific rules

315

regarding the evidence for rape cases, the judges refrain from applying their

knowledge to establish this crime. As a result, another court will need to rule on

whether the woman (the victim) committed Zina. If the court rules that Zina was

committed, the victim will be punished for this crime. However, it should be

noticed that, according to general principle of Islamic teachings, it is also

possible that in some cases - such as when there is insufficient evidence to proof

rape, or when the perpetrator issued threats - the acts are considered to be Tazir

crimes, allowing proper punishment to be determined. On the right to

compensation, the Iranian legal system accepted inequality between men and

women with regard to Diyah. However, in the new penal code, equal

compensation for men and women is provided for. This amendment shows that

equality can be achieved through a re-interpretation of text.

In short, as this research indicates, the components and constituent

elements of rape in the Iranian legal system and in procedural stages have not

been adapted to changes in both social life and criminal activity. According to

Islamic principles, rape is forbidden. Therefore, it is the duty of legislative

systems of Islamic countries to define this crime with respect to Islamic

principles and teachings. Furthermore, the current legal culture that is dominant

in the courts and that has prevailed amongst judges puts victims at the risk of

secondary victimization. Although the law, in somehow, appears supportive, the

criminal justice system is largely based on a male-dominant culture and thus

largely indifferent to the particular concerns of women. The inadequate

arrangements in substantive law (including inappropriate definition of rape and

its punishments) and procedural law (e.g. right to provide evidence), as well as

the culture of criminal justice institutions, have resulted in re-victimizing the

victims.

After examining the situation of rape victims in Islamic law, the Iranian

legal system and international law, the case of Iran has been revisited to explain

the status of international law within the Iranian legal system, the status of

Sharia in Iranian constitutional law and Iran's international obligations regarding

protection of women against rape, sexual violence and discrimination against

women. This was achieved through an analysis of the possibilities of invoking

international human rights instruments at the domestic level (Iran) and the


316

political use of Sharia. The analysis shows that although Iran ratified a number

of international human rights treaties invoking them at domestic courts is far

from easy, primarily because of domestic mechanisms limiting their application

to ensure compatibility with Islamic law as interpreted in Iran. The research

argued that although Islamic law has priority over all laws in the Iranian legal

system, Iran still has to fulfill its international obligations about providing an

effective remedy and effective protection to victims at the domestic level. Iran is

a member of the international community and as such is bound to comply with

the treaties that it has ratified. In addition, judiciary in Iran should become more

open to considering international treaties and provide possibility for victims to

invoke international documents at local courts. Therefore, efforts should be

made to increase the awareness among the judiciary of Iran’s international

obligations. It was also observed that Islamic law and international law have a

different approach regarding the punishment of rape, the issue of equality and

marital rape. These divergencies that are mainly caused by a traditional

interpretation of Sharia contradict the message of peace and justice transmitted

by Islam. This can be seen as a political use of Sharia that adversely impacts on

the relations between Islamic states and the international community.

Finally, regarding the specific recommendation at the domestic level

(Iranian legal system) it should be noted that protection of rape victims does not

only require legislative action. The training of the personnel of criminal justice

institutions is equally essential to developing protection programs. Justice

requires not only that offenders are punished, but also that adequate access to

the criminal justice system is provided to victims, and that they are appropriately

treated.

A) Recommendations for the legislative system

As the legislative system is the basis of action for all employees in the

criminal justice system, the first step in the field of protection of victims should

be taken at this level.

1 - A major problem in Iranian criminal law regarding sexual crimes is that no

separate chapter has been allocated to the crime of rape. The regulations on rape

317

are common to those on “Zina”, whereas the effects and consequences of rape

require a separate and particular chapter and rubric.

2 - In such a chapter all forms of sexual crimes should be defined. A

comprehensive definition is necessary to prevent arbitrary interpretation. The

criteria for defining rape should be changed. The definition of rape must clearly

indicate that the tools of the crime, the degree of penetration, the presence or

absence of virginity or ejaculation are not important for the definition rape.

3 – A precise definition of coercion should be included in the criminal code.

Coercion and duress should include both mental and physical aspects. In

addition, it should be acknowledged that threat can constitute coercion; that

injuries do not need to be established to prove rape and that a previous (sexual)

relationship between offenders and victims does not mean implicit consent to

this offense.

4 - Revision in the punishment of this crime should be the primary goal of

criminal reform. The gap between the punishment for simple Zina (such as

intimacy) and that for rape has resulted in offenders being acquitted of rape, and

the likelihood that both victims and offenders (probably) are convicted and

punished for other crimes. A restorative approach in addition to preventive

measures should be adopted in criminal penal code. Providing a comprehensive

system for compensation and restitution to these victims including addressing

both mental and physical injuries is very important.

5 - Dedicating an independent and comprehensive chapter in procedural law for

victims of rape is vital for their protection. Developing some regulations for all

institutions of the criminal justice system to determine their methods of action in

supporting rape victims can be effective.

6 – Adopting an effective evidence system and encouragement to the judges to

applying scientific methods for discovering the facts are very important.

7 - An independent and special investigation and prosecution system for this

crime as well as specific solutions that ensure protection of victims should be

adopted in procedural law.


318

B) Recommendations for criminal justice institutions

Suggestions related to the criminal justice system are offered in three

areas: police, courts and forensic medicine.

• Police

1 - Training police officers about the effects and consequences of this crime and

improving their behavior when dealing with victims is essential.

2 - The establishment of a crisis intervention center or a special unit to address

these crimes and if not possible, the establishment of a crimes against women

unit, can also be useful. The center can identify damages and provide legal,

medical and psychiatric consultations.

3 - Training police officers about the importance of preserving evidence in

criminal procedure such as forensic medicine certification and other documents

is absolutely necessary. It is important to make police officers understand that

"time" is very important for victims and wasting time can destroy the evidence

and consequently lead to the victim’s inability to prove the crime. Police officers

should be required to provide guidelines regarding legal procedures and victims'

rights and responsibilities at the time of their first contact with the victim.

Providing handbooks for victims in police stations can be of help. Changing

attitudes held by some police officers to the effect that "only prostitutes can be

raped" should be made a key point in training programs.

4 - Women who are deprived of family support, women without any shelter or

women who prefer not to testify are more exposed to damage and should be

supported specifically.

• Courts

1- As a complement to legislative reform, a change in the judges' methods for

discovering coercion or penetration is also very important. The judges should be

trained by psychologists or other experts about the importance of mental and

physical injuries sustained by the victims in order to treat the victims with

dignity and compassion while assessing the issue of coercion. It should be made

clear to judges that forensic medicine is not the only way to discover the truth.

319

2 – Use of assistants or a female judge in the trial and interrogation process is

very important.

3 - The judges should be trained to recognize that regardless of the relationship

between the victims and the perpetrators, the particular facts of the case should

lead to the discovery of the truth.

• Forensic medicine

1 - One of the most important tasks of forensic medicine is to detect the invisible

and mental injuries such as infections and injuries that are not observable during

the investigation. Ignoring this task in many cases leads to acquittal of the

defendant, and even punishment of the victims.

2 – The Coordination of forensic medicine and courts is also essential. The role

of forensic medicine must go beyond issuing a certificate. Physicians should be

present in the courts and explain the facts as experts.

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Glossary of technical terms

Abu Bakr Close Companion of Muhammad, who was also the father

Muhammad’s wife Aisha. According to Sunnis, Abu Bakr was the

first Caliph of Islam after Muhammad’s death.

Abu Hanifa Real name: Numan bin Tabith. Founder of one of the famous Fiqhi

schools in Islam. Born in Kufa of Iraq in 698 A.D. He has been jailed

by Abbasid Caliph, Abu Jafar Mansur and tortured until his death.

Actus reus act containing all elements of a punishable

offence and imputable to the person who has

committed it

Ahmed bin

Hanbal

Hadith expert and theologian. He was the founder of the Hanbalı

Madhhab, a prominent Fiqhi School in Islam. Ahmed bin Hanbal was

persecuted by the Abbasids during their inquisition because he

refused to admit the Qur'an was created.

Aisha The daughter of Abu Bakr. She was Muhammad's third and favorite

wife whom he married after the death of Khadıjah, his first wife.

Aisha was only six years old at the time of her marriage to

Muhammad.

Ali b. Abi Talib According to Shitte is the first Imam the cousin and son-in-law of the

Prophet

Aql Intelligence, intellect, mind, understanding

Diyah Blood money or blood price, the financial

compensation for homicide and injuries

Fatwa legal opinion without binding force given by a mufti in answer to a

question stating a concrete case (which does not necessarily have to

be based on actual facts)

Figh Islamic jurisprudence, legal doctrine

Hadd

(plural:hudud)

Fixed punishment for certain crimes (Hadd crimes), mentioned in the

Koran and Hadith

Hadith (plural:

Ahadith )

formally transmitted words or behaviour of the Prophet Mohammed,

one of the sources of Islamic jurisprudence

Halal What is permitted if not mandatory. It defines all that is good or

acceptable for a Muslim.

357

Haqq al- ibad

(plural: huquq al-

ibad)

claim of a human being (as opposed to a claim of God)

Haqq Allah

(plural: h.uquq al-

Allah)

claim of God, representing the public interest

Haraam (opposite of halal); sinful; unlawful; forbidden

Hirbah The Hadd crime of robbery, banditry, one of The Hadd offences,

synonymous with

muharaba and qat. al-t.ariıq

Honor Killings The 'right' of a family to wash its spoiled 'honor' by the 'misconduct'

of another family member. This misbehaving includes being raped,

thus losing her hymen to a stranger, among the most horrible thing

possible in an Islamic mindset. Refusing to engage into an arranged

marriage is also such a dishonor. Said not to be Islamic by western

apologists only, but understood by Muslims as the correct application

of many Qur'anic verses: Q.24.31 (-Chr.102-); 33.32-36 59 (-Chr.90);

65.1-6 (-Chr.95-); 66.5 (-Chr107-) and 4.34 (-Chr.92-).

Idda period after the dissolution of a marriage

during which a woman may not remarry

Ijma consensus of Islamic scholars

Ijtihad A technical term of Islamic law that describes the process of making a

legal decision by independent interpretation of the legal sources

Ikrah coercion, duress

Imam Literally, leader; e.g. a man who leads a community or leads the

prayer.

Iqrar admission, confession

Islam Submission, the actual meaning behind the word Islam

Isnad chain of transmitters of any given Hadith

Jihad (Djihad:

struggle)

A religious struggle. Most often referring to the waging of wars of

aggression and conquest against non-Muslims in order to bring them

and their territories under Islamic rule.

Madhhab, plural

Madhahib

school of jurisprudence

Mahr al-mithl

proper bride price, i.e. the average bride price a woman of a particular

social status, age etc. would receive upon marriage

Mens rea blameworthiness of the defendant consisting in the state of mind

Bibliography

358

required for a conviction

Muhsan

personal qualities, variously defined by the schools of jurisprudence,

that cause the fixed penalty for unlawful sexual intercourse to be

increased to death by stoning instead of 100 lashes

Mujtahid A Muslim jurist who is qualified to interpret the law and thus to

generate Ijtihad.

Qadhf calumny, defamation: the Hadd offence of an unfounded accusation

of unlawful sexual intercourse

Qadi single judge applying the Sharia

Qisas retaliation for homicide or wounding

Qiyas analogy - foundation of legal reasoning and thus fiqh

Rajm stoning to death, the fixed penalty for

unlawful sexual intercourse committed by a muhsan

Shahada Testimony

Shariah The path to a watering hole"; the eternal ethical code and moral code

based on the Qur'an and Sunnah; basis of fiqh

Shubha uncertainty regarding the unlawfulness of an act

Tafsir The interpretation, or commentary on the Qur'an or Qur'anic passages

Taqlid To follow the scholarly opinion of one of the four Imams of Islamic

Jurisprudence

Tawbah Repentance

Tazir discretionary, corrective punishment

Urf custom of a given society, leading to change in the fiqh

Usul (sing. asl) Principles, origins.

Usul al-Fiqh the study of the origins and practice of Islamic jurisprudence fiqh)

Zina unlawful sexual intercourse, illicit sex,

fornication

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