Tuesday 31 March 2015 Nargess Tavassolian
An Eye for an Eye: Inhuman and Un-Islamic
Iranian judicial authorities have ordered the execution of many people found guilty of murder over the past few years. In many cases, the punishment has been carried out in line with the sharia practice of qesas, or retaliation, whereby the murderer in question is given a death sentence. This type of justice is defended and criticized in equal measures, with supporters saying it is fair and proportionate and those against it arguing it is inhuman and ineffective as a deterrent.
But late last year, Iran’s judiciary made history when Judge Mohammad Shahriyary confirmed the qesas verdict for acid-throwing, along with the payment of blood money and ten years’ imprisonment in the case of a man who had intentionally thrown acid on his victim. The attack, on August 3, 2009, which took place in the city of Qom, resulted in the victim losing his sight. On March 3, 2015, the judiciary ordered a medical team to carry out an operation under anesthesia that would ensure the acid thrower lost sight in one eye. The team has also been given instructions to carry out a separate operation on his other eye at a later date. It is thought that the second operation might have been delayed in order to give the victim time to change his mind, though this has not been confirmed.
The qesas laws were introduced in the Islamic Penal Code following the 1979 Revolution, as part of a move to introduce sharia law to the country and ensure Islamic values were at the heart of the new society. Qesas (retaliation) is defined within the code as “the main punishment for the crime of intentional bodily harm or murder.” But in order for qesas to be implemented, certain requirements need to be met: one of these requirements is that qesas can only be applied when it is determined that the punishment cannot exceed the original harm done.
The other requirement concerns blood money. Blood money is a financial punishment a judge assigns in cases where qesas cannot be implemented. For example, since the blood money of a woman is normally half of that of a man, in cases where the victim is female and the perpetrator is male, the victim first needs to pay half of the blood money to the male perpetrator so that she can ask for the implementation of qesas. These requirements have in practice impeded the application of qesas punishment.
Sometimes, the victim will choose not to further the matter for fear of reprisals from the perpetrator or his family. Others forgive because they simply do not want to perpetuate the cycle of violence in society. Ameneh Bahrami, who pursued qesas after she was the victim of an acid attack, forgave her attacker at the last moment after considerable discussions with and requests from civil society. Medical staff are also often reticent to carry out qesas-related punishment. But this time, the victim did not forgive the acid thrower, and the case made history: for the first time, qesas was carried out for the crime of acid-throwing.
Legal experts, academics and the general public are split on the subject. Supporters argue that Islam prescribes qesas, and it is therefore a religious obligation. They believe that, because of its severity, the punishment works as a deterrent against serious violent crimes, including throwing acid or murder. Those who oppose qesas claim it is an inhuman practice, and that it contradicts Iran’s obligations to international human rights mechanisms and treaties, including Article 7 of the International Covenant on Civil and Political Rights, which stipulates that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Moreover, those who oppose qesas say that not only does it not have a deterrent effect, but also that it normalizes violence, leading to greater brutality in society in general.
According to Iranian sociologist Mehrdad Darvishpour, who is now based in Sweden, qesas rulings in Iran go back more than 1400 years, when the region was largely tribal and before Islam emerged. In Darvishpour’s view, a judicial system based on qesas creates a society based on revenge and reciprocal violence, where criminals are denied human dignity and basic human rights. He rejects the idea that crime prevention can be enacted through fear. If fear was effective in reducing crime, then the countries currently engaged in meting out the world’s harshest punishments — Iran and Saudi Arabia — would have the lowest crime rates, but this is not the case. In fact, in countries where the judicial system is not based on harsh sentencing (such as Sweden), the crime rate is no higher than in other countries. Due to a number of factors, he says — including societal, psychological, economic and educational — the perpetrator of a crime will often not consider the consequences of his or her actions when committing a crime. Imposing inhuman punishments on criminals is not an effective way of eliminating crime. In reality, Darvishpour says, the only way a society can eradicate a crime is by identifying and addressing the causes of crime directly.
But is the punishment of qesas really prescribed by Islam? Would it be un-Islamic to abolish the practice? According to religious reformer Hassan Yousefi Eshkevari, Islamic jurists have different views on the question. According to a group of Islamic scholars Eshkevari refers to as “the traditionalists,” if a ruling appears in the Koran or the Sunna (the sayings and deeds of the prophet and holy imams), it is sacred and unchangeable. Traditionalist scholars conduct research on the meaning of Islam’s rulings, but they never doubt or challenge the everlasting nature of those rulings. As a result, these scholars view qesas as applicable to all societies at all times because they are presented in the Koran.
Another group of scholars believes that whatever is stated in the Koran and the Sunna is sacred and unchangeable, but that there are exceptions to certain rulings and that the scope for applying them is restricted.
Finally, there is a third group of scholars, Eshkevari explains, who do not view Islam’s social rulings as being sacred and everlasting. This group of religious intellectuals – which Eshkevari himself belongs to — believes that these rulings were made for the people of the time and place in which they were created, and that they were based on the necessities of that time and place. Islam’s rulings, Eshkevari says, were very progressive for the people of that time and the qesas punishment was introduced to limit violence in society. When it was introduced, a punishment was often disproportionate to the crime — when a person gouged someone’s eye, many eyes were gouged in response; when a murder took place, many people were killed as a result, and so on.
Islam limited this violence by first asking the victim to forgive and then requiring that the punishment not exceed the amount of harm inflicted on the victim. Today, Eshkevari argues, the situation has changed. With the advent of modern judicial systems and human rights, these rulings are no longer considered progressive. Instead of applying rules created for a society from 1400 years ago, it is necessary to assess how Islamic rulings should be applied now, and what purpose they can serve in improving today’s society.
So, although there can be no doubt that acid throwing is among one of the most heinous crimes imaginable, there is good evidence to suggest that punishment through retaliation is neither just nor proportionate. It normalizes violence, and allows brutality to flourish. There is little evidence to show it acts as a deterrent for potential offenders, and it goes against Iran’s commitments to international human rights covenants, which explicitly rejects “cruel, inhuman or degrading treatment or punishment.” Crucially, for many prominent Islamic scholars, it is not in line with Islamic teachings and values. Instead of applying inhuman punishments, Iranian and other governments must first focus directly on the victims of these crimes, helping with expenses for medical treatment and offering psychological assistance. This would go some way toward letting the victim know Iran’s government acknowledged the severity of the crime. When assessing the appropriate punishment for criminals, these same leaders must determine how laws created hundreds of years ago can be reformed to fit modern society and its social and moral demands.