The Islamic Republic of Iran has earned a bad reputation for the mistreatment of prisoners and for arbitrarily detaining hundreds of human rights activists. As a matter of fact, physical abuses such as flogging, blinding and amputations are official punishments in the Iranian judicial system. This article aims to explore the use of punitive amputations, and how this practice has to be assessed under human rights law.
To avoid further international pressure, Iran does not publish any official data on the amputations carried out. Nevertheless, news about instances of amputations is not rare. Quite the contrary, there is a vast number of articles about individual cases, especially because a lot of them are executed in public, or in front of other prisoners. At the end of 2020, Amnesty International put forward that Iran carries out amputation punishments on average every two months, having amputated the fingers of at least 129 individuals in the last 20 years. Victims report being amputated with an electric guillotine and without anaesthesia, and the majority comes from poor, vulnerable backgrounds. According to Iran Human Rights Monitor, eight prisoners are currently awaiting the amputation of their fingers (as of 07 January 2021). In 2017, Iran’s General Prosecutor Mohammad Jafar Montazeri has condemned the low amputation rates and criticized the country of having abandoned divine laws in order to please the United Nations.
Iran’s position on punitive amputation
The Islamic Penal Code incorporates amputation as a punishment for a certain type of theft (sariqa) in Article 278. The stipulated threshold is defined by Article 268 Penal Code, and requires, among other conditions, the stolen object to be of a legitimate value and stolen secretly from a secure place. The severity of the amputation depends on the repetition of the crime. First-time theft is punishable with the amputation of the full length of four fingers of the right hand (so that the thumb and palm of the hand remain), whereas the second time is punished with the amputation of the left foot from the end of the knob. In the case of the vague offence of moharebeh (“waging war against God”), one of the possible punishments is the amputation of the right hand or the left foot (Article 282 Penal Code).
According to Islamic Law, theft is classified as a hudud crime, which is explained as a “limit of God” and thus has a fixed punishment as prescribed by the Qur’an or Sunna. Hence, the judge cannot amend the required sentence in any way (which is affirmed by Art 219 Penal Code). However, within Islamic Law, there exists a lot of ambiguity and various school of thoughts around the required standard of proof for hudud crimes, which is supposed to be extremely high. Moreover, historically, hudud punishments were applied only in very rare and isolated cases. In contrast to this, Iran has adopted an extreme approach. It seems like the Iranian justice system does not apply its own safeguards, such as establishing the crime without a mere of doubt (Art 121 Penal Code), requiring two eyewitnesses or two confessions (Art 172 leg. cit.) which are given without coercion (Art 169 leg. cit.) and in front a judge (Art 218 leg. cit.).
Besides its religious justification, the authorities in Iran consider the amputation of limbs to be an effective deterrent and “more humane” in comparison to long-term imprisonment. The Iranian government justifies the use of punitive amputations as being in compliance with the International Covenant on Civil and Political Rights (ICCPR), because the “physical punishments (…) are legislated and legalized”.
Punitive amputations under International Human Rights Law
First of all, punitive amputation constitutes torture. According to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), a deliberate mutilation (as an act involving severe physical and/or mental pain) by a public official to punish someone for an act they have committed amounts to torture. However, the Islamic Republic of Iran has neither signed nor ratified the UNCAT and is thus not legally bound by it. Nevertheless, Iran did sign the ICCPR in 1975, which also prohibits torture (Article 7). The irreconcilability of punitive amputations and Iran’s obligation under Art 7 ICCPR has been pointed out by the Human Rights Committee already in 1997, when it called upon Iran to abolish amputation penalties. The prohibition of torture is accepted as a customary jus cogens norm; hence no exceptions or derogations are permitted. The fact that Iranian criminal law recognizes amputation as a lawful penalty does not change this assessment.
The UN Special Rapporteur on the human rights situation in Iran calls almost yearly upon the Iranian government to ratify the UNCAT and to prohibit punitive amputations.
Apart from the fact that carrying out amputation itself amounts to illegal torture, there are many other human rights issues connected to this specific punishment. For example, punitive amputations are also applicable to children since Article 147 Iranian Penal Code declares girls criminally responsible at 9 lunar years (8.7 years) and boys at 15 lunar years (14.6 years). This raises questions relating to the Convention on the Rights of the Child (CRC), which Iran ratified in 1994 and also specifically prohibits torture of children (Article 37). In 2005, the Committee on the CRC urged Iran to ensure that all persons under 18 are not subjected to corporal punishments, including amputations. Moreover, Art 147 Penal Code is not only discriminatory, it also contradicts the guidelines on the CRC which considers a minimum of criminal responsibility below the age of 12 years to be not internationally acceptable.
Furthermore, convictions following unfair trials and the use of torture-produced confessions are not at all unusual in Iran. This foremost violates Article 10 ICCPR, which guarantees the humane treatment of all persons deprived of their liberty. Additionally, Article 14 ICCPR, regulating the right to a fair trial and to accessing a lawyer, is compromised. This too has been raised by the UN Special Rapporteur in 2020. Although Art 190 of the Iranian Code of Criminal Procedure ensures the right of an attorney to be present during the preliminary investigation phase, denying this right or withholding information about this right does not invalidate the investigation. Rather, the impaired investigation can continue without problems and only the judiciary official who denied the right will be punished. Besides, if the suspect does not appoint a legal representative, there is no ex officio requirement for the Court to appoint one, unless it is a crime punishable by death or life imprisonment. Moreover, Art 48 leg. cit. allows only attorneys from an approved list to meet with the suspect in crimes of a certain category, which includes crimes punishable by amputation. In other words, in those cases the suspect is de-facto without effective representation during the pre-trial stage, where torture is most likely to be carried out, and there is no remedy against it.
Amputation is not a suitable punishment
Iran’s excuses of amputation being a fruitful deterrent and more humane than prison have to be strongly rejected. These arguments, besides being controversial in themselves, completely disregard that deterrence and punishment are not the only purposes of criminal law. It also has the role of protecting society and, most importantly, of rehabilitating offenders. By purely inflicting physical pain, it is entirely missed that a sentence should be able to alter a criminal’s view, to ensure that they will not reoffend and to prepare the criminal to reintegrate into society. Yet, with physical handicaps, ex-offenders are limited further in their ability to find work or provide for their families while being publicly stigmatized as dishonest thieves.
At this point it is essential to mention that amputation is just one of many human rights violations committed by the Iranian government, and that flogging, blinding or stoning are lawful punishments in Iran as well. Additionally, Iran is not the only state employing torturous punishments, but other Islamic states such as Sudan or Saudi Arabia practice Sharia in criminal cases too.
The international community needs to intervene to stop further amputations being carried out in Iran, as well as in other states. Since hudud punishments are divine laws, mandated by God, it might not be expedient if Western countries demand Iran to ban a godly decree. Yet, a firm push from the Muslim world and from respected religious scholars might be successful. This could take the form of reminding Iran that hudud punishments were only scarcely applied in pre-modern Islam and even today, Muslim countries applying them represent a minority. International pressure, which is respectful of Islamic justice, is essential in persuading Iran to give up its orthodox views and to introduce changes to the Penal Code, such as increasing the burden of proof in a way that an unattainable evidence standard renders the hudud punishments de-facto inapplicable.
Amputation of limbs as punishment for theft is an incredibly cruel sentence, and as torture absolutely illegal under international human rights law. Despite it being a regular and legitimate practice under domestic Iranian Law, there are no justifications, and it remains a violation of international law.
Originally published by Peace for Asia on 10 February 2021. Click here to read the article on their website.