Abdorrahman Boroumand Center

Lately, there has been an increasing criticism of the death penalty in Iran, and multiple campaigns have been started by Iran’s human rights activists and civil society for the abolition of this punishment. Since human rights activists, and generally, Iran’s civil society, is regarded by some in the Islamic republic apparatus as a puppet of the World Hegemonic System [the West, in general, the U.S., in particular], and activities of this kind, as a cover for “soft” overthrow [of the regime], no one had any expectation that their voices would be heard inside the Iranian government. In response to this wave of criticisms, however, Ayatollah Sadeq Larijani put forth an argument which gave me hope that the matter would be opened for discussion. He may not have intended to open the discussion on the subject, and he usually is not one to invite experts to give their opinions on the matter. He did, however, declare “the fundamental difference between the West and the Islamic world on the matter” to be one of the “root causes” of the international community’s criticism of the human right situation in Iran and said: “In one of the recent resolution’s provisions, they have declared the implementation of Qesas as null and void, whereas Qesas is the Qur'an’s express decree, and to want us to stop implementing a Qur'anic decree just because some resolution has been passed is an unwarranted expectation … When they condemn the Judiciary Branch for issuing Qesas sentences, they are, in effect, condemning our belief in Islam itself.”

Those words became the motivation for writing this article because I thought if one can prove by relying on Shari’a principles of Imamiah (Shi’a) Fiqh (Islamic jurisprudence) acceptable to the venerable Ayatollah, that to negate the death penalty is not to negate Islam itself, perhaps he might be willing to open the discussion of putting a stop to that punishment. I therefore decided to let him know through the writing of this article, that according to what we have understood from Imamiah criminal law, not only is the death penalty not concomitant with and a necessity of Islam itself, but stopping its implementation while the Innocent Imam is absent is among the popular views held by Imamiah legal scholars.

By way of introduction to the discussion, it must be noted that Qesas is not the only instance where the death penalty is implemented in Iran’s penal system. Basically, in the many crime categories that carry the death penalty in Iran, only one, “intentional murder”, falls under the Qesas [punishment]; the rest fall [either] under Hoddud, or deterrent punishments. Therefore, criticizing the death penalty is not necessarily the equivalent of criticizing Qesas. One should not, therefore, fall prey to this fallacious reasoning and equate any opposition to the death penalty with opposition to Qesas. Official statistics issued by Iran’s Judiciary Branch indicate that 75 percent of executions are related to deterrent punishments for drug crimes. We will therefore study the prohibition of capital punishment in each of the above three categories.

Qesas

Surah Al-Isra, Verse 33 is the Qur'anic basis for Qesas of life with regards to intentional murder. It provides: “And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly, We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law].”

This verse gives the next of kin the authority, and decrees that they are the ones who have absolute authority to decide on the punishment for murder. Qesas and the taking of the murderer’s life as retribution for the life he/she has intentionally taken, is just one meaning and interpretation of such authority, not the only one. Therefore, this verse’s direct purport is not necessarily execution of the murderer; one of the consequences of the victim’s next of kin’s power and authority over the punishment is that they can demand the taking of the murderer’s life. It is this all-encompassing power over the murderer that extinguishes the flames of vengeance and extracts life out of the concept of Qesas. So long as the next of kin have not felt that they have control over the murderer and that they control that person’s life, their spite and anger will not be quelled and they will not consent to pardon the murderer willingly and with peace of mind. In cases of intentional murder, nothing will quell the anger of the victim’s relatives and nothing can stop their efforts to take revenge, except giving them absolute power over the murderer. This power does not, however, translate into encouraging them to murder and [implement] Qesas. In intentional murder, only that pardon which has been issued subsequent to absolute power over the murderer will be one that can be sustained. And that, is the secret of “life in Qesas”. (“O, ye wise men, there is life in Qesas, may you have piety [in your life and decisions]”).

In addition to the above, what is most cause for criticism in Qesas, is proving the conformity of the meanings and interpretations with a ruling of intentional murder. There is no question that implementation of Qesas must be [based on] a complete absence of doubt and uncertainty, that is, there must be no ambiguity or misgivings regarding the conformity of the act with the definition of intentional murder, as well as its commission by the defendant. Since most Qesas sentences in Iran’s criminal courts are issued based on “the Judge’s knowledge”, is the honorable Head of the Judiciary certain that no mistakes are ever made in the process of adjudication? Can he be certain, based on the principle of “caution in [spilling] one’s blood and [destroying] one’s reputation” that the judges who operate under his authority make no mistake, ever, in [making] their determinations [and their subsequent rulings on that basis]? Is he not aware of the methods used in the Police Criminal Investigations Bureau to extract confessions, and of multiple confessions to a single murder by several persons to counter these methods? Given that the manner [of obtaining] (and not the subject of) confessions is the standard in Imamiah Fiqh (Islamic jurisprudence), is he certain that even the defendant’s admission of and confession to intentional murder will result in getting rid of any doubt as related to the rules? There is no question that the Ayatollah himself is aware that these doubts and uncertainties render implementation of Qesas extremely difficult.

Furthermore, Islam’s penal policy with regards to murder, given this verse’s express provisions, is to try to control murder and bloodshed, and to pardon and forgive instead of taking revenge, all the while maintaining deterrence. Under this tenet, Qesas is only one part of the penal policy, not its entirety. Have all the country’s potential and capacity been mobilized to bring this policy to fruition, and all that remains in the cycle devised by Islam in order to reduce crime is the last link in the chain?

The above [concerns] would make any intelligent, expedient person think twice about implementation of Qesas. Nevertheless, I am not personally advocating for the complete abolition of Qesas of life for the crime of intentional murder, and I view it as an appropriate part of present day Iranian society’s penal policy. However, [I believe] its implementation must be both part of a complex and well-thought out process of fighting the crime of intentional murder, and be done with the utmost caution, the type of caution that is certainly not observed under current conditions by Iran’s Police Force and law enforcement [apparatus].

Hodud

The death penalty is the punishment for the two chastity-related crimes of sodomy and fornication (adultery, fornication with close relatives, rape), as well as for Moharebeh (“waging war against God”) and insulting the Innocent (the Prophet and his Descendants). Some might claim that opposing the death penalty as a punishment for these crimes is equivalent to opposing Islamic decrees. But one must know that in Imamiah Fiqh, the opposite actually holds true. Most leading Islamic scholars, precursors or the more recent ones, hold that during the Absence of the Innocent Imam, implementation of hodud is not religiously permitted, and [that they must be] replaced with Ta’zir punishments. Ta’zir must, by definition, be less harsh than Hadd, that is, the death penalty is undoubtedly not among Ta’zir punishments and is definitely suspended during the absence of the Innocent Imam. These scholars believe that when the Innocent Imam is actually present among us, he will know how to rule, but during the Absence we are not authorized to resort to Hodud. Ayatollah Vahid Khorasani and Ayatollah Mohaqeq Damad, who, incidentally, are both related to the Head of the Judiciary Branch by marriage, are among those scholars. Are these scholars, who negate the death penalty in our time, also part of the World Hegemonic Order and are after the soft overthrow of the Islamic Republic? It is obvious that opposition to capital punishment has nothing to do with opposition to Islam itself. The question therefore becomes, why does the Islamic republic’s legislature overlook this important Islamic jurisprudential opinion?

Deterrent punishments

Deterrent punishments are punishments that have no Shari’a (religious) background, and, in other words, did not exist at the time of the Innocent Imam. (Such as drug trafficking). These punishments are devised as a penal response to new phenomena of our time which the government must criminalize in order to protect society. Most executions in Iran fall under this category. It is therefore abundantly clear that opposition to the death penalty as regards these crimes cannot have anything to do with Islam at all, since these crimes did not even exist at the time of the Innocent Imam’s presence among the Moslem community.

It is my opinion that application of the death penalty to these crimes is contrary to Shari’a and void from a religious standpoint. Imamiah scholars are unanimous in the belief that Ta’zir must be less harsh than Hadd. No sovereign, even the Innocent Imam, may devise a Ta’zir punishment that is harsher and more severe than Hadd punishments. If these crimes existed at the time of the Innocent Imam, the latter would most definitely not have prescribed the death penalty as Ta’zir punishment for them, since he basically would not be allowed to do so. How is it then that the ostensibly Islamic lawmakers of Iran have devised deterrent punishments harsher than Hadd? Furthermore, it is well-established that in Imamiah Fiqh, taking a life through Hadd punishment – which has a religious basis and is at times expressly stated in the Qur'an – is suspended during the absence of the Innocent Imam. How is it then, that a government that purports to follow the Imamiah jurisprudence, considers it to be its religious duty to carry out the death penalty as part of deterrent punishments that do not have any basis in Shari’a?

To sum up, from a religious standpoint, the government is not permitted to apply the death penalty in cases other than those expressly stated in the Shari’a, and even those are not to be implemented during the Absence of the Innocent Imam. Consequently, not only is opposing capital punishment in 89 of the 90 cases stated in Iranian penal laws not against Shari’a, but it is also in line with the well-known opinions of leading Shi’a scholars.

Even though there are those in the world today that commit atrocities and killings in the name of Islam and Islamic laws, thereby making many Moslems ashamed of being Moslem, it is a point of pride for Imamiah penal jurisprudence to have tacitly abolished the death penalty before all other penal systems in the world, and suspended its implementation except in very limited cases of Qesas for intentional murder. Had we not turned our reins over to a bunch of radical pseudo-scholars, today Iran’s legal system would be an example for others to follow in abolishing the death penalty through Islamic principles, and not the world record holder in the number of executions. It is unfortunate that an extensive apparatus has been created in the name of Imamiah jurisprudence - the legal school of thought that claims to be the first to abolish the death penalty - to take the lives of human beings, and more unfortunate still, is that there are some who insist on ascribing these killings to this school of thought and regard any opposition to capital punishment as opposition to Islam.