TABLE OF CONTENTS

Introduction.....................................................................................................1

1. International Law.........................................................................................2

1.1 United Nations Convention on the Rights of the Child..................3

1.2 Validity of the Reservation............................................................5

1.3 The International Covenant on Civil and Political Rights...............6

1.4 Customary International Law........................................................7

1.5 Peremptory Norms........................................................................8

2. Iranian Law................................................................................................10

2.1 Introduction to the Iranian Criminal Code...................................11

2.2 Age of Maturity............................................................................11

2.3 Hodoud Punishment....................................................................14

2.4 Qesas Punishments.....................................................................16

2.5 Tazir Punishments.......................................................................17

2.6 The Role of Culture in Legislation...............................................18

Conclusion.....................................................................................................18

List of References..........................................................................................20

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1

INTRODUCTION

Child execution consists of capital punishment on anyone who was

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

treaties, which create uncertainty as to how to deal with child execution in

Iran.

Although there are not many child executions every year in Iran, it

remains an important humans right breach since there are treaties explicitly

denouncing the execution of juvenile offenders. Moreover, in a report

released in 2007 by Amnesty International, Iran has executed 24 child

offenders since 1990, while the total number of children executed from 1990

2

to 2007 is 60. Iran has executed roughly half the juvenile offenders executed

since 1990. That is a significant portion, seeing as only 8 countries have

executed juvenile offenders since 1990. On the 8th of May 2005, an Iranian

judiciary said: “Amnesty International’s sources of information are not

reliable… people under 18 are not executed.” Iran openly denies the fact

that they are executing juvenile offenders. On the broader scale, this

practice makes juveniles in Iran criminally responsible at a very young age.

Although it should be taken into consideration that culture plays a role in the

implementation and continuation of juvenile execution.

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

execution in Iran with regards to international law. This section addresses

both the United Nations Convention on the Right of the Child and the

International Covenant on Civil and Political Rights, along with customary

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

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Though international law directly challenges Iran’s right to execute

child offenders, their applications do not work as directly as it seems they

should. Iran’s treaty commitments, notably the Convention on the Rights of

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

monarchy. Customary law and peremptory norms oppose the practice of

child execution. The following section details these arguments.

1.1 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

The United Nations Convention on the Right of the Child, proposed to

the United Nations on the 20th of November 1989 (UNCRC, 1989), was the

first international legally binding instrument addressed to children (Amnesty,

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,

a nation agrees to provide the necessary changes in legislation to comply

with the CRC. Nevertheless, these changes are not always made

immediately, but progressively, by annual reports to the Human Rights

4

Commission showing steady development (Simon, 2000). These reports

consist of suggestions and improvements that can be made by the State in

question to ameliorate its child rights situation.

According to Article 37a of the CRC:

No child shall be subjected to torture or other cruel, inhuman or

degrading treatment or punishment. Neither capital punishment nor

life imprisonment without possibility of release shall be imposed for

offences committed by persons below eighteen years of age. (CRC,

1989)

It is therefore against the CRC for a nation to sentence a child to capital

punishment or life imprisonment. Iran ratified this on the 12th of August

1994, with the reservation:

The Government of the Islamic Republic of Iran reserves the right not

to apply any provisions or articles of the Convention that are

incompatible with Islamic Laws and the international legislation in

effect. (Schabas, 1996)

This reservation sparked many objections in the ensuing months by various

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

5

power to virtually disregard any of the articles if it was deemed either

against Iranian law or Islamic law (Sharia).

1.2 VALIDITY OF THE RESERVATION

The nations who opposed to Iran’s reservation referred to the Vienna

Convention on the Law of Treaties and Article 51.2 of the CRC, both

important arguments against Iran’s reservation (Schabas, 1996).

The Vienna Convention on the Law of Treaties (VCLT) was entered into

force January 27 1980 and represented a much needed clarification and

codification of customary international law regarding treaties between

States. Iran is a State Party of the VCLT, and is therefore bound to its

framework on reservations. According to Article 19 of the VCLT:

A State may, when signing, ratifying, accepting, approving or acceding

to a treaty, formulate a reservation unless:

a. The reservation is prohibited by the treaty;

b. The treaty provides that only specified reservations, which do

not include the reservation in question, may be made; or

c. In cases not falling under sub-paragraphs (a) and (b), the

reservation is incompatible with the object and purpose of the treaty.

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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

should therefore be disregarded until it provided further clarification

(Schabas, 1996). This puts Iran’s very ratification of the CRC into question

given such a broad reservation.

Moreover, Article 19 of the VCLT is reflected in Article 51(c) of the CRC,

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

be disregarded. No formal investigation has been conducted as to whether

the international community agrees to disregard the reservation, but when

faced with the vagueness of the reservation, it does fit the description of

reservation “against the object and purpose of the treaty”. Therefore, it

should be disregarded.

1.3 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

The International Covenant on Civil and Political Rights was enforced

as of March 23rd 1976, and Iran ratified with no reservations on April 4th

1968. Most importantly, Article 9(5) states that the:

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Sentence of death shall not be imposed for crimes committed by

persons below eighteen years of age and shall not be carried out on

pregnant women. (ICCPR, 1966)

It is important to note that when Iran ratified the ICCPR in 1968, it was the

monarchy of Mohammad Reza Pahlavi. It is difficult to say whether the fact

that the ICCPR was signed by the former Iranian monarchy affects the

significance that it has in current Iran courts. Nevertheless it must be taken

into account that seeing as there are no reservations made to the ICCPR Iran

is fully accountable for infringing Article 9 (Jupp, 1989).

1.4 CUSTOMARY INTERNATIONAL LAW

Customary international law deals with the protection of basic human

rights. It is regarded as the source of most international law since much of it

comes from the sense of legal requirement, making it both difficult to

determine yet the source of most international treaties and a valid legally

binding instrument (Bradley, 2002). It is determined by either the general

practice of States treated as law but not directly addressed in law, or

anything done “out of a sense of legal obligation (opinio juris)” (Bradley,

2002). Customary international law depends on the honoring of that law by a

majority of states. In this case, there are only five nations (including Iran)

that continue to support the execution of juvenile offenders, while Amnesty

8

International claims that nine nations have executed child offenders since

1990 (Amnesty International, 2007).

Customary law is an institutionalized description of this moralized

system (Bradley, 2002). With regards to juvenile execution, it is difficult to

know whether the majority of countries are not executing children out of

treaty compliance or legal obligation separate from treaties. However, the

lack of debate or direct objection to it in reservations of most nations to both

treaties show that it is regarded as customary law (Safir, 1998). Since

juvenile execution can be regarded as customary law, Iran has the legal

obligation to abide to this (Morreale, 2004).

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.

1.5 PEREMPTORY NORMS

A peremptory norm (or jus cogens, meaning “compelling law” in Latin)

is an essential principle of international law, accepted by the international

community as undeniable norm to which no debate is possible. It is the

compilation of core values that form the base for customary international

law. It is defined in Article 53 of the VCLT as

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A norm accepted and recognized by the international community of

States as a whole as a norm from which no derogation is permitted and

which can be modified only by a subsequent norm of general

international law having the same character. (VCLT, 1969)

Peremptory norms are the underlying principles of international law

and according to Article 53 of the VCLT, “a treaty is void if, at the time of its

conclusion, it conflicts with a peremptory norm of general international law”.

Since no treaty is permitted to conflict with a peremptory norm, it can be

said that they are held in very high regard in international legislation. Due to

the vague nature of peremptory norms, there is no international consensus

on all peremptory norms. Instead, they arise from cases and socio-political

attitudes. General examples would be genocide, crimes against humanity,

slavery and torture (Streib, 1998).

The execution of juvenile offenders is considered against a peremptory

norm. In 2002 Michael Domingues v. United States provided the status of

peremptory norm to capital punishment of juvenile offenders. The Inter-

American Commission on Human Rights published a report which deemded

juvenile execution against a peremptory norm (Templeton, 2002).

It has been established that juvenile execution is contrary to the CRC,

the ICCPR, customary international law as well as peremptory norms. Even

though Iran ratified the CRC with a reservation, the international community

10

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.

Nonetheless, it is not protected from customary international law, let alone

peremptory norms, which are together legally binding and breaching them is

considered a serious offence. The international community is not putting any

political pressure on Iran with this regard. In order to understand how Iran

justifies the practice itself, one must carefully examine Iranian law with

respect to juvenile execution, notably the Iranian Criminal Code. Firstly, it

must be mentioned that “child” is regarded as under the age of 18 in

international law (Article 1 of CRC), while it is different under Islamic law

(Hashemi, 2007). This is one of many issues that arise when comparing

international and Iranian legislation. The following section examines the

Iranian Criminal Code with regards to execution.

2. IRANIAN LAW

It is important to understand the connection between capital

punishment and the Iranian Criminal Code. In order to understand why

children are still executed, one must understand Iranian law and what

justification it offers for this practice. Firstly, I will investigate the difference

in the age of maturity between the international community and Iran.

11

Furthermore, I will examine the Iranian Criminal Code’s rules on capital

punishment, and whether they can be applied to child offenders.

2.1 INTRODUCTION TO THE IRANIAN CRIMINAL CODE

There are 5 types of criminal offences according to the Iranian Criminal

Code: hodoud, qesas, diyeh, tazir and deterrent punishment (Article 2,

Iranian Criminal Code). Capital punishment is possible under hodoud, qesas

and tazir crimes. Hodoud punishments constitute crimes mentioned in the

Koran, while qesas punishments are equivalent to the crime and tazir

punishments are not mentioned in Islamic law and are therefore left to the

discretion of the judge. This leads to complications in interpretation of

Islamic matters since the judge is the only source of interpretation in the

court.

2.2 AGE OF MATURITY

According to Article 1 of the CRC:

For the purposes of the present Convention, a child means every

human being below the age of 18 years unless, under the law

applicable to the child, majority is attained earlier. (CRC, 1989)

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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

punishment […] shall be imposed for offences committed by persons below

18”). According to the Iranian Civil Code Article 1210:

No one, when reaching the age of majority, can be treated as under

disability in respect of insanity or immaturity unless his immaturity or

insanity is proved.

Note 1 - the age of majority for boys is fifteen lunar years and for girls

nine lunar years. (Iranian Civil Code, 2004)

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,

Article 49 of the Iranian Criminal Code states:

Minors, if committing an offence, are exempted from criminal

responsibility. Their correction is the responsibility of their guardians

or, if the court decides by centre for correction of minors.

Note 1 – A minor is a person who has not reached the age of maturity

as stipulated by Islamic Jurisprudence. (Iranian Criminal Code, 1990)

13

According to this, minors are not responsible for criminal offences. It

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,

2008). It is uncertain whether the Civil Code is the “Islamic Jurisprudence” to

which the Criminal Code is referring.

Power in Iranian courts is usually concentrated in the judge, who

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

ability to rule a minor mature enough to face an adult sentence. Moreover, it

seems that even an adult could prove himself immature and avoid a

sentence. The power bestowed in the judge is one of the many

disadvantages of Iran’s judicial system. For example, 16-year-old Atefeh

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

falsified and she was publicly hanged in August of 2004 (Amnesty

International, 2007).

Nevertheless, the fact that the documents has to be falsified puts in

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

14

outrage (Garnsey, 2006). Although child executions are not happening on a

large scale, they are important human rights breaches and rarely occur

outside Iran.

2.3 HODOUD PUNISHMENT

Hodoud punishments are the offences that are mentioned in the

Islamic scriptures. With regards to the age of maturity, Article 82 of the

Iranian Criminal Code states:

The penalty for adultery in the following cases shall be death,

regardless of the age or marital status of the culprit:

(1) Adultery with one’s consanguineous relatives (close blood relatives

forbidden to each other by religious law);

(2) Adultery with one’s stepmother in which the adulterer’s

punishment shall be death;

(3) Adultery between a non-Muslim man and a Muslim woman, in which

case the adulterer (non-Muslim man) shall receive the death penalty;

(4) Forcible rape, in which case the rapist shall receive the death

penalty. (Iranian Criminal Code, 1990)

There seems to be a discrepancy between Article 49 and Article 82 of the

Iranian Criminal Code, whether minors are actually held criminally

responsible in the event of adultery. It appears that age is not a factor in the

15

sentence for hodoud crimes. This is a clear contradiction, since Article 49

states that no minor should be held criminally responsible, yet Article 82

would hold a minor criminally responsible.

Moreover, considering that hodoud crimes are based on the Koran,

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

the Koran (Safir, 1998).

In spite of that the age of maturity mentioned in the Civil Code is

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

between minors and adults.

Furthermore, Article 112 of the Iranian Criminal Code states that if a

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

circumstances (Iranian Criminal Code, 1990). Moreover, if convicted of

“corruption on earth”, a possible punishment is execution (Article 190).

“Corruption on earth” consists of being member of a terrorist group or

16

anything opposite the Islamic State (Articles 186-188). There is no mention

of age in any of this chapter of the Code.

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

Article 6.4 of the ICCPR, which states “Anyone sentences to death shall have

the right to seek pardon or commutation of the sentence. Amnesty, pardon

or commutation of the sentence of death may be granted in all cases”

(ICCPR, 1966).

Another contrast to the ICCPR is Article 121 of the Iranian Criminal

code, which states that if homosexual foreplay between a non-Muslim and

Muslim takes place, the active party is to be executed. However, Article 26 of

the ICCPR states that every man is equal before the law, regardless of race

or religion. Nevertheless, as previously mentioned it is uncertain whether the

ICCPR has any leverage in Iran’s legislative assembly. This brings other

human rights breaches into question, such as freedom of speech and

thought (Safir 1998).

2.4 QESAS PUNISHMENTS

Qesas punishments in the translation of the Iranian Criminal Code are

directly translated to “retribution”. In the case of a homicide, the family of

the victim reserves the right to ask for the execution of the guilty party.

17

Qesas and execution are distinct cases and homicides are treated as a

private quarrel between both parties while the state facilitates the

communication and to implement the final decision. Because of the

detachment from the legal system and thus the judge, the Supreme Leader

cannot pardon the culprit. Hence, qesas punishments do not comply with

Article 6.4 of the ICCPR.

With regards to minors, Article 221 of the Criminal Code states: “If an

insane person or minor intentionally kill a person, it will be regarded as

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.

2.5 TAZIR PUNISHMENTS

The only case where capital punishment can be sentenced with

regards to tazir is, according to Article 513:

Anyone who insults the Islamic sanctities or any of the imams or her

excellency Sadigheh Tahereh should be executed if his insult equals to

speaking disparagingly of Prophet Muhammad. Otherwise, should be

imprisoned from one to five years. (Iranian Criminal Code, 1990)

18

Essentially, Article 513 allows the execution of anyone who publicly

denounces Prophet Muhammad, seemingly regardless of age. Additionally,

this is contrary to Article 18(1) of the ICCPR, with gives everyone in a country

the freedom of thought and expression.

2.6 THE ROLE OF CULTURE IN LEGISLATION

The age of maturity in Iran is the result of Islamic influences in

legislation. It is the result of culture on legislation, and not legislation

imposing the age on Iranian culture. This culture is reflected in the Civil and

Criminal Codes. Considering this, one must recognize how society has

influenced this choice of juvenile execution. It is accepted in Iran and it is

ingrained in the culture, which makes the abolition difficult and extensive.

This is where the main difficulty lies in abolishing the juvenile death penalty

in Iran (Hashemi, 2007).

CONCLUSION

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Considering that Iran has signed and ratified the CRC with an open-

ended reservation, questionable with regards to the VLTC, I cannot give a

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

international community. Moreover, Iran is subject to customary international

law and peremptory norms. Therefore, we can conclude that on the

international level, child execution is illegal in Iran.

Nevertheless, the causes of the practice continuing in Iran are deep-

rooted cultural differences reflected in the Civil and Criminal Code. Islamic

influences in legislation have brought Iranian legislation to where it is today,

and juvenile executions are more likely to occur. This is a display of how

much of an impact culture can make in legislation, and the repercussions

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.

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Amnesty International. 2007. Iran: The Last Executioner of Children.

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