Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Table of Contents.............................................................................................1
Introduction.....................................................................................................2
1. International Law ........................................................................................3
1.1 United Nations Convention on the Rights of the Child..................4
1.2 Validity of the Reservation............................................................6
1.3 The International Covenant on Civil and Political Rights...............7
1.4 Customary International Law........................................................8
1.5 Peremptory Norms........................................................................9
2. Iranian Law................................................................................................11
2.1 Introduction to the Iranian Criminal Code...................................12
2.2 Age of Maturity............................................................................12
2.3 Hodoud Punishment....................................................................15
2.4 Qesas Punishments.....................................................................17
2.5 Tazir Punishments.......................................................................18
2.6 The Role of Culture in Legislation................................................19
Conclusion.....................................................................................................19
List of References..........................................................................................21
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2
INTRODUCTION
under the age of 18 at the time of the crime. Several other campaigns have
been formed to lobby for their country to put pressure on Iran to stop this
practice. Most of these campaigns call solely upon the United Nations
Convention on the Right of the Child (1989), claiming Iran has ratified this
treaty and must abide by it. Although Iran has ratified the UN Convention on
the Right of the Child, Iran has applied a reservation that does not comply
with the Vienna Convention on the Law of Treaties (1969). Iran has signed
and ratified the International Covenant on Civil and Political Rights (1966),
but it did so in 1968, when it was a monarchy and not the Islamic Republic it
is today. Whether this is significant or not will be discussed. Iran itself has a
Criminal Code and a Civil Code, both heavily based on religious texts that
must be taken into account. The result is a convoluted mix of laws and
Iran.
Although there are not many child executions every year in Iran, it
remains an important humans right breach since there are treaties explicitly
offenders since 1990, while the total number of children executed from 1990
3
to 2007 is 60. Iran has executed roughly half the juvenile offenders executed
executed juvenile offenders since 1990. On the 8th of May 2005, an Iranian
reliable… people under 18 are not executed.” Iran openly denies the fact
that they are executing juvenile offenders. On the broader scale, this
Although it should be taken into consideration that culture plays a role in the
This paper will not discuss whether the execution of children in Iran is
legal or not, but instead examine the laws that apply to Iran and
subsequently how Iran justifies them. The first section will discuss juvenile
both the United Nations Convention on the Right of the Child and the
international law and peremptory norms. The second section will consist of
internal Iranian legislation and how Iran justifies the execution of juvenile
offenders.
1. INTERNATIONAL LAW
the Child (CRC) and the International Covenant on Civil and Political Rights
(ICCPR) prohibit the execution of anyone under the age of 18. Nevertheless,
Iran has navigated around these through reservations on the CRC. Moreover,
the ICCPR was signed by the former Iranian monarchy, and it could be
possible that Iran withholds itself to abide to prior treaties signed under the
the United Nations on the 20th of November 1989 (UNCRC, 1989), was the
2007). It helps define the standards for basic human rights for everyone
under the age of 18 in the ratifying states. It was the product of the growing
awareness that children need special care and protection, which the
declaration of human rights does not provide for them. By ratifying the CRC,
with the CRC. Nevertheless, these changes are not always made
1989)
The Government of the Islamic Republic of Iran reserves the right not
nations (Schabas, 1996). The objections were due to the lack of precision in
which articles Iran did not intend to uphold. Iran’s reservation gave them the
Convention on the Law of Treaties and Article 51.2 of the CRC, both
The Vienna Convention on the Law of Treaties (VCLT) was entered into
States. Iran is a State Party of the VCLT, and is therefore bound to its
Austria refers to the VCLT, claiming that Iran’s reservation on the CRC is
arguably “incompatible with the object and purpose of the treaty” and
7
(Schabas, 1996). This puts Iran’s very ratification of the CRC into question
which states: “A reservation incompatible with the object and purpose of the
present Convention shall not be permitted”. Once again, this raises suspicion
as to why Iran would put forward such a reservation given that it would likely
faced with the vagueness of the reservation, it does fit the description of
should be disregarded.
as of March 23rd 1976, and Iran ratified with no reservations on April 4th
persons below eighteen years of age and shall not be carried out on
It is important to note that when Iran ratified the ICCPR in 1968, it was the
that the ICCPR was signed by the former Iranian monarchy affects the
into account that seeing as there are no reservations made to the ICCPR Iran
determine yet the source of most international treaties and a valid legally
majority of states. In this case, there are only five nations (including Iran)
International claims that nine nations have executed child offenders since
know whether the majority of countries are not executing children out of
juvenile execution can be regarded as customary law, Iran has the legal
It must be mentioned that child and juvenile are relative terms, which
mean under the age of 18 according to the United Nations and under 15 for
men according to Islamic law (Iranian Civil Code, 2004). I will examine this in
detail later.
compilation of core values that form the base for customary international
and according to Article 53 of the VCLT, “a treaty is void if, at the time of its
said that they are held in very high regard in international legislation. Due to
on all peremptory norms. Instead, they arise from cases and socio-political
though Iran ratified the CRC with a reservation, the international community
regards this reservation as void due to its vague nature. The Iranian Islamic
Republic, established in 1979, did not ratify the ICCPR and so disregard it.
peremptory norms, which are together legally binding and breaching them is
political pressure on Iran with this regard. In order to understand how Iran
justifies the practice itself, one must carefully examine Iranian law with
(Hashemi, 2007). This is one of many issues that arise when comparing
2. IRANIAN LAW
children are still executed, one must understand Iranian law and what
justification it offers for this practice. Firstly, I will investigate the difference
Koran, while qesas punishments are equivalent to the crime and tazir
punishments are not mentioned in Islamic law and are therefore left to the
Islamic matters since the judge is the only source of interpretation in the
court.
human being below the age of 18 years unless, under the law
Although this mentions that “child” is defined as under the age of 18, Article
37a protects everyone under the age of 18 from capital punishment (“capital
13
insanity is proved.
Note 1 - the age of majority for boys is fifteen lunar years and for girls
It should be noted that the difference in lunar years and Gregorian years is
slight and will not be considered. Taking into thought the age of maturity,
Note 1 – A minor is a person who has not reached the age of maturity
may seem that the age referred to in Note 1 is the same as in the Civil Code,
yet there is still uncertainty whether they are one and the same (Mostafaei,
14
usually plays the role of the prosecutor, jury and arbiter. This rudimentary
form of the inquisitorial system poses problems due to the having most of
the legal power concentrated into the judge (Zarrokh, 2007). The judges are
members of the ruling clergy, appointed by the Supreme Leader and are
subject to his policy (Hashemi, 2007). The power in the judge gives them the
seems that even an adult could prove himself immature and avoid a
Rajabi Sallaleh took off her hijab while arguing in court thus violating Iranian
law and insulting the judge. Documents making her 22 years of age were
International, 2007).
light that the judge knew he could not justify the execution of a 16 year old.
He was aware that the news of the execution of a minor would spark public
large scale, they are important human rights breaches and rarely occur
outside Iran.
15
case the adulterer (non-Muslim man) shall receive the death penalty;
(4) Forcible rape, in which case the rapist shall receive the death
responsible in the event of adultery. It appears that age is not a factor in the
they are subject to interpretation and can be manipulated by the judge. For
example, 46:15 of the Koran states: “he attains his maturity when he
reaches forty years”. In this light, it would seem that Iran has used a
different view of the age of maturity instead of the explicit one mentioned in
designed for marriage, making it 15 for boys and 9 for girls. In this light,
adultery of the sort of Article 82 would not be expected for minors under the
age of 15, assuming that that is the correct law regarding the difference
mature man has homosexual sex with a young man (minor), “the active
party” will be executed if the “passive party” was consenting. “The active
party” here could mean either the man or the boy, depending on the
Since hodoud crimes are regarded as crimes against God, the Supreme
Leader of Iran cannot grant pardon in all cases. This could be a violation of
17
Article 6.4 of the ICCPR, which states “Anyone sentences to death shall have
(ICCPR, 1966).
the ICCPR states that every man is equal before the law, regardless of race
ICCPR has any leverage in Iran’s legislative assembly. This brings other
the victim reserves the right to ask for the execution of the guilty party.
Qesas and execution are distinct cases and homicides are treated as a
private quarrel between both parties while the state facilitates the
detachment from the legal system and thus the judge, the Supreme Leader
cannot pardon the culprit. Hence, qesas punishments do not comply with
18
With regards to minors, Article 221 of the Criminal Code states: “If an
accidental death”. However, Iran has still upheld some families demand for
qesas, even while the murderer was under 18 years old. Yet, since the Civil
Code states that any boy above the age of 15 and girl above the age of 9 are
responsible, the demands for qesas are justified only within Iranian
legislation.
Anyone who insults the Islamic sanctities or any of the imams or her
this is contrary to Article 18(1) of the ICCPR, with gives everyone in a country
19
imposing the age on Iranian culture. This culture is reflected in the Civil and
Criminal Codes. Considering this, one must recognize how society has
ingrained in the culture, which makes the abolition difficult and extensive.
This is where the main difficulty lies in abolishing the juvenile death penalty
CONCLUSION
Considering that Iran has signed and ratified the CRC with an open-
definite answer whether Iran can be held accountable under the authority of
the CRC. Yet, Iran’s lack of informing the international community of its
intentions with regards to the ICCPR show a general disregard towards the
rooted cultural differences reflected in the Civil and Criminal Code. Islamic
and juvenile executions are more likely to occur. This is a display of how
juvenile execution has in Iran are intricately linked to the culture of the
country. At 15 years old, Iranians are held criminally responsible. The culture
reflects this and the Iranian youth is aware of this. In this light, it would be
wrong to say Iran is continuing this practice for no apparent reason; the
culture and practices are so deep-rooted that they cannot simply disappear
overnight.
21
LIST OF REFERENCES
http://www.alaviandassociates.com/
http://www.amnesty.org/en/region/middle-east-and-north-africa/east-gulf/iran
Bradley, C.A. 2002. The Juvenile Death Penalty and International Law.
http://www.guardian.co.uk/media/2006/jul/27/iran.broadcasting
Jupp, M. 1989. The International Year of the Child: Ten Years Later.
McMaster University.
Morreale, M.C., and A. English. 2004. Abolishing the Death Penalty for
35:335-339.
the Child. Human Rights Quarterly 18, no.2, 472-491. SpringerLink, McMaster
University.
Streib, V.L. 1998. Moratorium on the Death Penalty for Juveniles. Law
23
http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/41_5/04_TXT.htm
Rights.
http://www.state.gov/g/drl/rls/hrrpt/2006/78852.htm
http://ssrn.com/abstract=1059481