Iran: The last executioner of children

January 1, 2011

Iran: The last executioner of children

Under the category of hodoud crimes, capital offences include adultery by married people; incest; rape; fornication for the fourth time by an unmarried person, having been punished for each previous offence; drinking alcohol for the third time, having been punished for each previous offence; "sodomy"(16); same-sex sexual conduct between men without penetration (tafkhiz) for the fourth time, having been punished for each previous offence; lesbianism for the fourth time, having been punished for each previous offence; fornication by a non-Muslim man with a Muslim woman; and false accusation of adultery or "sodomy" for a fourth time, having been punished for each previous offence.

The law of hodoud also provides for the death penalty as one of four possible punishments for those convicted of the vaguely worded offences of "being at enmity with God" ("mohareb") and "being corrupt on earth" ("mofsed fil arz"). These terms are defined in the Penal Code as "Any person resorting to arms to cause terror, fear or to breach public security and freedom will be considered as a mohareb and to be corrupt on earth".(17) Further articles clarify that those convicted of armed robbery, highway robbery, membership of or support for an organization that seeks to overthrow the Islamic Republic; and plotting to overthrow the Islamic Republic by procuring arms for this purpose will be regarded as mohareb. References in other articles relating to ta’zir crimes, and other laws, specify other circumstances where someone may be considered a mohareb, which include espionage and forming a group to harm state security. Corruption on earth is not further defined in the hodoud section of the Penal Code, but a number of other laws provide for the possibility that certain crimes may in some circumstances fall into this category, including crimes such as economic corruption, embezzlement, repeated drug smuggling, forgery of banknotes, hoarding and profiteering.

Judges apparently have a wide degree of discretion in deciding whether a particular crime is so serious that it amounts to one of these categories and therefore can be punished by death rather than a term of imprisonment or other penalties.

As hodoud crimes are regarded as a crime against God, they are not open to pardon by the Supreme Leader on the recommendation of the Head of the Judiciary in the same way as ta’zir or discretionary punishments are. However, in the case of adultery, "sodomy", same-sex sexual conduct without penetration, and lesbianism, if the person has confessed to the crime and repented (publicly sought forgiveness from God), then the judge in the case has the power to seek a pardon from the Supreme Leader or to insist on the implementation of the verdict.(18)

Qesas-e nafs (retribution in kind)
In cases of qesas, where a victim is killed or injured, the sentence is retaliation or "retribution in kind". This means that in cases of murder, the family of the victim has the right to ask for their relative’s killer to be put to death. The family can also choose to forgive the culprit and accept payment of diyeh instead.

In the Iranian legal system, there is a distinction between cases where the penalty is "execution" (hokm-e ‘edam) and qesas, although people sentenced to qesas are often reported in the media to have been sentenced to death. In Iranian law, murder is treated as a private dispute between two civil parties – the state’s role is to facilitate the resolution of the dispute through the judicial process. In this sense, the death penalty, as in hokm-e ‘edam, is regarded as being imposed by the state, whereas qesas is imposed by the family of the victim. As a result, sentences of qesas are not open to pardon or amnesty by the Supreme Leader.

Under international law, Iran remains fully responsible for respecting and protecting the rights of those under its jurisdiction, irrespective of the role that private parties may play in the administration of justice. In a case of qesas, Iran must respect the rights of any child offender by ensuring that the process it facilitates does not allow for the offender’s execution and protects the child offender from any acts by private parties that would lead to an execution.