Wednesday, November 21, 2012

Memorandum Addressing the Punishments Mandated in the Iranian Penal Code and their status under Article 7 of the Covenant on Civil and Political Rights and Cultural Relativism by Mahmoud Fadli


Memorandum Addressing the Punishments Mandated in the Iranian Penal Code and their status under Article 7 of the Covenant on Civil and Political Rights and Cultural Relativism
By Mahmoud Fadli | March 2010


Introduction

The Human Rights Committee has charged me with the task of assessing whether the specific punishments of amputation for theft and stoning for adultery are in violation of Article 7 of the Covenant on Civil and Political Rights, and whether the Committee should give credence to the arguments presented by the Iranian Representative which use “cultural relativism” to justify the punishments imposed. For the reasons mentioned below, I am of the opinion that the punishments mandated by the Iranian Penal Code for the aforementioned crimes are in violation of Article 7 of the Covenant on Civil and Political Rights, and that the committee should give little credence to the “cultural relativism” arguments presented by the Iranian representative.

I respectfully submit my findings below.

An Interpretation of Article 7 of the Covenant on Civil and Political Rights

To analyze whether Iran’s sanctions for the aforementioned crimes are in violation of Article 7, we must first begin by interpreting the relevant Article. Article 7 of the Covenant on Civil and Political Rights states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

 Article 7 discusses three types of actions that a state must ensure its citizens are not subjected to: torture, and cruel, inhuman, or degrading treatment or punishment. The second sentence of Article 7 is not in issue. The differences between torture on the one hand, the most serious of the prohibited actions, and cruel, inhuman, or degrading treatment or punishment, on the other, is the element of reprehensibleness.

Degrading treatment is the “weakest level of a violation of Article 7.” The emphasis here turns not on the humiliation of the victim, but on the severity of the suffering imposed upon the victim. In essence, the purpose of degrading treatment is that it is meant to humiliate the victim and create a sense of insecurity in their psyche.  

Inhuman and/or cruel treatment includes all forms of “imposition of severe suffering that are unable to be qualified as torture for lack of one of its essential elements.” This requires an evaluation of the practice to determine whether or not it rises to the necessary intensity to label it as torture. Such punishments falling into this category include forced psychiatric experiments such as injections against the will of the victim and deprivations of food and drink for an extended period of time.

It is agreed that all of the aforementioned categories in Article 7 must contain an unacceptable degree of reprehensibleness to be considered as possible violations of the Article.

Torture is the only act that is expressly defined. For purposes of this memorandum and Article 7, torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing hum for an act he has committed, or is suspected of having committed, or intimidating him or other persons.”

In light of the definitions mentioned above, I will begin my analysis of the punishments imposed by the Iranian Penal Code and determine whether they are in direct violation of Article 7 of the Covenant on Civil and Political Rights.

A Note on Sharia

The word “Sharia” literally means “the path,” and is commonly used as a reference for Islamic Law. Islamic Law, in and of itself, is rather complex, and there are many scholars which hold the view that “Sharia,” also referred to as “God’s law,” can only be interpreted in the form of probability, taking into account for human fallibility. This falls within the realm of “fiqh,” or a “human understanding” of “God’s law.” For purposes of this memorandum, however, I will use the term “Sharia” generally as a reference to “Islamic Law” as the complexity in Islamic Jurisprudence would greatly increase the length of this memorandum to a point considered “reprehensible” for the purposes of this seminar.


The Iranian Penal Code

The Iranian Penal Code, based on an interpretation of Sharia, divided crimes into four categories: hudud, qisas, ta’zir, and diyat. These crimes are categories by the types of punishments historically imposed for their commission. Hudud crimes are defined as “acts prohibited by God and punishable by mandatory penalties defined in the Quran,” the Islamic Holy Book. Despite various interpretations of what a hudud crime is, the Iranian Government has defined them as theft, robbery, adultery, apostasy, drinking of alcoholic beverages, and rebellion “against Islam as interpreted and defined by the religious and legal authorities in Iran.” The punishments for the crimes to be evaluated fall into this category.

Under the Iranian Government’s interpretation of Sharia, the punishment for the crime of adultery and theft are stoning and amputation, respectively. The Iranian Government as “boasted” that they have “developed a perfect device for the speedy amputation of hands,” carried out primarily by the Judicial Police inside prisons. These are typically carried out with the oversight of the Ministry of Health and the Corner’s Office.

According to Amnesty International in a recent report on the Human Rights situation in the Islamic Republic, sentences of amputations have been implemented, with the most notorious being that of Mr. Abbas G., who was sentenced to have his left leg an right hand amputated for “taking part in armed robbery and creating fear among the public.” Moreover, sentences of stoning have also been issued, with the most notorious being of a woman known only as “Soghra,” who was stoned after being convicted of adultery. This was done despite an official moratorium being imposed upon stoning, passé in December 2002 under a directed from the Head of the Judiciary. However, Amnesty International has stated in its report that it is not aware of the sentences actually being carried out.

Analysis of the Punishments under Article 7

It must be noted that Iran’s interest in ensuring that criminal activity is deterred and those found guilty through the judicial process punished for such activity is legitimate. Every state should have the ability to punish its citizens for crimes against the society in a manner that it deems appropriate. However, these punishments must not circumvent international norms, especially when the State in question has expressly chosen to abide by such norms.

While Iran is using Islamic Law as a guise for such punishments, there is the assumption, based on the relevant schools of through within the Iranian Religious Authority, the punishments must be imposed in a manner not inconsistent with their reading of the Quran. While it cannot be denied that there are certain crimes expressly mentioned in the Quran, with references to punishments being imposed, there are overriding principles both within Islam and the Covenant that must be evaluated.

There is no doubt that the punishments carry with them high levels of negative social stigma and humiliation. It cannot be denied that one who has their limbs amputated carries with them, for the remainder of their lives, a social status that deems them criminal and unworthy. This status, in contrast to punishments imposed in the United States or other countries that carry jail sentences and hefty fines, is evident on the surface, and not within the bounds of confidential legal status which directly effects the opportunities and political choices a convicted criminal has available to them. However, the forced amputation of those convicted of theft in Iran can rise to the level of torture as the punishment creates severe pain for the accused, and can lead to both physical and mental suffering after the punishment is carried out. The most obvious result of this punishment takes the form of an immediate and apparent disability that will directly affect the individual’s ability to both function normally and rehabilitate themselves to become productive members of society.

While it can be argued, quite legitimately, that the punishment is effective in deterring theft, there must be a point at which the punishment is so grossly disproportionate to the crime that it lends itself to be illegitimate. A principle in Islamic Law that is commonly overlooked is that of forgiveness and rehabilitation, which encourages a state to engage in activities that are designed to both punish the individual for their transgression against society and, at the same time, encourage their productive reentry into society. This principle is widely accepted within Islamic Jurisprudence, and while states are free to create laws in a manner they see fit, I am of the opinion that the limitations on the state must be defined by generally held principles in the community. There is little information regarding the actual attitude of Iranians toward this form of punishment. However, the fact that the Iranian Government willfully, and without coercion, elected to bind itself by the principles of both the Muslim Faith and the Covenant in question can and, for matters of this memorandum, should, be clear evidence of the attitudes of the people.

This is not to say that the Committee should place itself in the shoes of a legislator when weighing the pros and cons of punishments imposed by a foreign legal system. However, when the punishment has no obvious benefits and results in the permanent suffering of an individual who has the potential of being a productive member of society, it should hold no legitimacy in the eyes of this Committee.

Moreover, the punishment of stoning, seen as an outdated and draconian form of law enforcement by many, can equally be considered as cruel, inhumane, and at the level of torture. Stoning, as is evident through its name, is a form of punishment that involves subjecting an individual to projectiles to the extent that they suffer fatal injuries. This process, if implemented using traditional tools such as heavy stones or rocks, can take time to have its effects. It is plausible that modern implementations of stoning could include projectiles fired from guns or other modern weaponry. Irrespective of the methods of implementation, stoning causes extreme pain and suffering by the victim.

Despite the moratorium in Iran, having the option of stoning in and of itself is enough to subject a victim to severe psychological suffering. Due to the severity of the punishment for the private act of adultery (or possibly fornication), this provision in the Iranian Penal Code flies in the face of both Article 7 and Islamic principles. It is of grave concern that the Iranian Representative fails to mention the historic requirements to implement this punishment, which include the offering of three to four witness of high integrity and social stature to testify to the act, which is commonly describes as “seeing the pen drop into the ink.” In other words, these said witnesses must witness the act of penetration, something which in practicality is impossible to achieve. This is not without purpose, however, as many prominent Islamic Scholars have interpreted this to mean that such punishment for adultery should be limited to the automatic granting of a legitimate right to divorce and separation by the effected spouse. Moreover, the fact that contemporary applications of stoning are applied only to women, and not men, flies in the face of the Covenant on the Elimination of All Forms of Discrimination Against Women, though this is not the subject of this memorandum.

In summary, applying Article 7 to the punishment, and embracing widely accepted principles of Islamic Jurisprudence, I am of the opinion that the punishments mandated by the Iranian Government for the crimes of theft and adultery are in blatant violation of Article 7 and accepted Islamic Principles, and I respectfully advise the committee to encourage the Iranian Government through mutual engagement to amend its law to be in compliance with the aforementioned principles.

Cultural Relativism and International Human Rights

Cultural Relativism dictates that when analyzing penal systems and state actions that may be in violation of widely accepted human rights norms, one must take into account the cultural differences between the societies in question. In essence, the Iranian Representative is arguing that the Iranian Penal Code is based off of widely accepted Islamic Traditions that have been adopted by the society, and that while exterior observers, mainly the “West,” look down upon these practices, Iranian society has accepted them as the norm and do not see them as a violation of human rights.

Such arguments can easily be seen as a slippery slope. Governments with repressive policies can easily use such a principle to justify harsh treatment of their citizens, and effectively avoid much needed international scrutiny of their actions. Given the current political turmoil in Iran, and the growing discontent with the current Iranian Government, I urge this Committee, to be cautious when approaching the issues presented herein. As noted previously in this memorandum, Islamic Jurisprudence bases itself on the concept of social harmony, forgiveness, and rehabilitation. There have been few instances of actual and legitimate convictions of adultery and implementations of stoning. The standards under accepted Islamic principles pertaining to the said punishment make it very difficult for any contemporary “Islamic” government to legitimately impose the sanction.

While there is a fine line between cultural tolerance and imposition of values, I am of the opinion that the Islamic faith has been used to justify actions that, under sound Islamic Jurisprudence, could never be legitimized. In this sense, I believe it is the responsibility of this Committee to mutually engage the Iranian Representative and present alternative interpretations of Islamic Law that would allow the Islamic Republic to amend its penal code to take into consideration the values stated herein. While there is much debate over the true essence of Islamic Jurisprudence, the concept of forgiveness and rehabilitation cannot be ignored. The historical fact that there have been traditional venues of recourse in the form of divorce for adultery by both spouses is evidence of the gross mischaracterization of the penalties in question. Moreover, it is worthy to note that the Iranian Representative did not once mention that the concept of theft in Islamic Jurisprudence is complex, and while in analogy to Common Law results in a “strict liability” offence, has various exceptions. For example, there are notable instances in Islamic Jurisprudence where an individual was exempted from punishment when stealing out of necessity (i.e. hunger). Such instances were seen not as a crime against the aggrieved party, but a crime against the accused by the society that failed in its responsibility to ensure that all of its citizens are granted the basic necessities conducive to life, which are food, water, and meaningful employment. Such principles are not inconsistent with international norms.

As a matter of fact, the argument I have presented above is a form of respect to cultural relativism. I believe it is the responsibility of this Committee to engage the Iranian Representative in a mutually productive dialogue in the essence of Islamic Jurisprudence. Given the nature of the current state of affairs in the Muslim world, and the ever-growing call for government reform, the Committee should be cautious when engaging the Iranian Representative. Only though cultural dialogue and the presentation of various perspectives of Islamic Jurisprudence can the Committee legitimately expect to see changes within the current Iranian Penal Code.

Conclusion

For the aforementioned reasons, I conclude that the punishments of amputation for theft and stoning for adultery are gross violations of Article 7 of the Covenant on Civil and Political Rights. I further conclude that the Committee should be cautious when engaging the Iranian Representative and giving credence to arguments based on cultural relativism as it could set the precedent for a slippery slope that can undermine the very efforts to ensure that gross violations of human rights are reduced, if not eliminated, in the international sphere.

I respectfully submit by findings to the Committee.

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