In Iran, the formal executions of criminals who have committed homicide without proof of malice aforethought are often overlooked by local and mainstream international media. This article attempts to show that the legal perception of “mens rea” needs to be revised to prevent unintentional murder from resulting in the death penalty. Several proposals are put forward for the international community on how to better communicate with judges and encourage them to modernize their judicial comprehension of capital sentencing decisions.
In September 2022, a 22-year-old Iranian Kurdish girl named Mahsa Amini died in the custody of the Guidance Patrol, the religious morality police of Iran, after being arrested for not wearing a hijab. This event dragged the nation into a new chapter of violence and, once again, raised the question of extrajudicial detention measures and their repercussions on detainees. According to the UN Special Rapporteur on the Situation of Human Rights in Iran Javaid Rehman, the security forces and public prosecutors have killed at least 277 people since protests started on September 16. However, aside from the deaths of street protesters, the persistent and silent execution of hundreds of “convicted criminals” by judicial authorities is often overlooked by domestic and international media. According to reports, more than half of all global legal executions in recent years occurred in Iran, many of whom were convicted of murder.
Generally, if the mental element of the crime (mens rea) and the intention to commit a homicide was correctly understood, many offenders would not have been sentenced to death. Some systems employ the term mens rea to indicate that criminals must act “purposely” and be aware that their actions result in a specific consequence. For instance, Title 18, section 1111 of the U.S. Code defines murder as “the unlawful killing of a human being with malice aforethought”. Therefore malice aforethought is the mens rea required to prove murder in the first degree in federal law— a complicated issue when taking into account the rules of Sharia (God’s law by Muslims). When reading precedents and judicial practices of Iranian courts, most Iranian judges misunderstand the concept of premeditated murder when interpreting Sharia law and disregard human rights standards and basic principles for interpreting criminal laws. Thus establishing a mere intention for a fatal action without an intentional killing is sufficient to be considered a first-degree murder. On this basis, as the judicial cases of Iran show, judges are constantly issuing verdicts of retaliation in cases of homicide, despite the absence of any premeditated intention. This is quietly degrading human rights while increasing the annual death penalty statistics in Iran. Establishing an adequate approach to mens rea in murder cases would greatly alter the picture of capital punishment in Iran. This article aims to propose a few solutions to the problem.
Analyzing the Iranian Approach to Capital Punishment
A central concept of criminal law is that criminal offences require some form of subjective mens rea: either intent, knowledge, recklessness, or negligence. Some states, however, instead focus on the terms “intent” and “premeditation,” creating ambiguities that may deprive the offenders of their right to a fair trial. Similarly, in Iran, when behavior against a person is fatal, it would be considered a first-degree crime and entails capital punishment—even if the perpetrator had no demonstrable malice aforethought. A recent example of such an interpretation is found in the case of Mohammad Salas, a Sufi accused of killing three police officers by running them over in a bus during clashes between Sufis and the police on February 19, 2018. Although, in all phases of the investigation the accused repeatedly stated that he was not intent on killing anybody, the Supreme Court held that since Salas’ action resulted in murder, he had committed first-degree murder.
The Iranian judicial system is not unfamiliar with the concept of malice aforethought. In several cases, the Supreme Court has expressly referred to this concept and accordingly rejected the death sentences, though precedent has been limited. Moreover, for the first time in Iran, the concept of malice aforethought was included in Article 291(3) (c) of the draft of the Islamic Penal Code (IPC) 2011. The section was vetoed by the Guardian Council of the Constitution on the grounds that the content of the paragraph might be against Islamic principles, though the Guardian Council did not object to the concept of malice aforethought specifically. This situation calls for the urgent reform of Iranian judges’ approach to the concept of intentional murder to keep pace with the contemporary secular interpretation of the principles of criminal law.
Article 290 of the IPC defines first-degree murder. It is clear that under Paragraph (b) of Article 290 of the IPC, the defendant’s state of mind at the time of the offense has been disregarded. According to paragraph (b), “if the perpetrator intentionally commits an action…, although he did not intend to kill…,” it is a first-degree murder and deserves retribution. This paragraph considers mens rea irrelevant. Accordingly, in a majority of cases, the Supreme Court has issued a sentence of retribution without establishing malice aforethought of the accused (e.g., Supreme Court Judgment, No. 9309970909200299, 16 December 2014).
The intention of result is a well-known principle of criminal law that is in line with human rights standards. Promisingly, most states have accepted the General Principles of Law, including those principles pertinent to criminal law (e.g. fairness, the impartiality of judges, rule of lenity), and an increasing number of governments and international organizations are expanding these principles in practice. The General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights recognizes the right to life of all human beings and provides that
Deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law. A deprivation of life may, nevertheless, be authorized by domestic law and still be arbitrary. The notion of “arbitrariness” is not to be fully equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.
Despite the fact that the IPC makes no explicit mention of “malice aforethought,” court rulings that consider this criterion (e.g. Supreme Court Judgment, No. 285-10/9/1350) are not only compatible with the provisions of the IPC, but also in line with the general principles of law— including the rule of lenity and the prohibition of arbitrary conduct.
Some judges across Iran are increasingly trying to comply with human rights standards by adopting a different interpretation of the parliamentary laws. Most of these cases are in the realm of marriage, divorce, alimony, or marital disputes in family courts, yet these judges who take secular human rights norms into account remain the exception because secularism is generally not compatible with Sharia. However, the appointment structure of judges is not a meritocratic competition, but by a political mechanism within the Islamic Republic of Iran. Thus, all the judges owe their allegiance to the heads of the provincial judiciary, and the Chief Justice. Thus, instead of international secular standards, they are inclined to use traditional interpretations and methods.
Often, the Iranian judges are unfamiliar with human rights law and instruments, caused by the ideological education system. Additionally, the dominant judiciary culture of the state, the chosen ideological approaches shared with judges in training, and the method of training and educating judges often appear to exacerbate this phenomenon in cases of murder and all other offenses bearing capital punishment.
Suggestions for Contributing to the Administration of Justice
Against this background and in light of the UN’s Bangalore Principles of Judicial Conduct, judges should take advantage of training that ought to be made available to them and should keep themselves informed about “relevant developments of international law, including international conventions and other instruments establishing human rights norms.” This is critical to familiarize new generations of Iranian judges with the standard international concepts of human rights in order to prevent this type of juridically sanctioned killing. Here are proposals for the international community to contribute to this mission:
Periodical training for judges may gradually reform the Iranian judicial system. Although this approach has already been adopted by the judiciary in the name of human rights, it often serves official teachings and does not meet modern secular human rights standards. There is a need to provide these teachings with more secular standards. However, judges planning to travel outside Iran on leave are bound by a number of complicated and non-transparent stipulations, procedures, and restrictions. As such, they are often absent or have a lower than expected participation in the global fora and conferences held to strengthen judicial integrity.
The capacity of international institutions and other non-governmental organizations should be used to train judges and prosecutors in their native language. This action does not need to be approved by the Iranian government and should be done independently. Designing a special website for this purpose and providing free educational booklets, brochures, or articles would be impactful for judges.
Offering annual awards to judges who have adopted a suitable approach to international human rights standards could positively influence them. Many governmental and non-governmental institutions offer various awards such as the Moot Court Awards, Nobel Peace Prize, etc., to outstanding personalities in different fields of human rights, law, science, the arts, etc. A similar trend may be established to award those who have contributed toward the administration of justice and fair trials. These awards should be given by governments or international organizations based on secular standards of human rights.
Another step would be to establish an Association of Iranian Judges under the provisions of Article 71 of the UN Charter, which allows the UN to communicate directly with national non-governmental organizations. Achieving sustainable development is impossible without empowering judges. This entity, as a not-for-profit, voluntary citizen’s group, ought to be organized on a local/national level to address contemporary issues in support of judicial development.
This article has highlighted the potential and needs for incorporating and recognizing international human rights developments and modern approaches to capital punishment and mens rea. The Iranian legislature has not paid adequate attention to the concept of malice aforethought, nor have courts mended this flawed comprehension of mens rea. By communicating with Iranian judges and providing direct or indirect legal teachings to them, one can hope to improve how judges and courts approach human rights and the number of executions and juridical killings.
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Moosa Akefi Ghaziani, Ph.D. is an Assistant Professor at Payame Noor University (PNU) Tehran, who has been researching and teaching human rights, international law, Islamic jurisprudence, and philosophy at some of Iran’s major universities for over 25 years. He completed his Ph.D. thesis entitled ‘Relation between International Human Rights and Municipal Law: Especial Reference to Iran and Saudi Arabia’ in the Faculty of Law at the University of Mysore, India. His publications have been referred to by prominent scholars and reputatable institutions. Most notably, Suja A. Thomas in The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge University Press 2016), ACCORD – Austrian Centre for Country of Origin & Asylum Research and Documentation, Iran: COI Compilation (Austrian Red Cross/ACCORD September 2013) 144-150, and Haider Ala Hamoudi, ‘Sex and the Shari’a: Defining Gender Norms and Sexual Deviancy in Shi’i Islam’, 39 Fordham International Law Journal 25 (2015).
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