Theoretical and Practical Challenges of Implementing Qisas in Iran

In addition to the contradiction of the Qisas ruling with human rights standards, its ineffectiveness in deterrence, and its reliance on discrimination (according to Note 2 of Article 310 of the Islamic Penal Code: "If the victim is non-Muslim and the perpetrator becomes Muslim before the execution of Qisas, the Qisas is annulled and in addition to paying Diye, the perpetrator is sentenced to the prescribed punitive punishment in the fifth book of punishments.") this ruling has three internal contradictions even within the framework of Sharia: 1. It is based on proportional revenge for the crime (life for life and limb for limb) without this revenge being permitted in all cases. Are victims of sexual assault allowed to retaliate against their assailants? Is every reciprocal act just? 2. The possibility of buying and selling certain types of Qisas by paying Diye undermines the alleged "divine ruling" with wealth. If Qisas is a divine ruling, why do the wealthy have the opportunity to annul it while the poor are deprived? Those who believe in a religious government, why do they not cover the payment of Diye instead of Qisas for the poor from the public treasury in all cases? 3. Men and women have hundreds of duties within the framework of Sharia. Qisas of limb and life frees them from many of these duties. Can one ruling annul hundreds of other Sharia rulings? Despite these contradictions, let us assume that there exists a society where the majority are religiously observant (an impossible assumption is not impossible), a majority dictatorship is in power, and the government is religious and wants to implement Sharia not for political reasons but out of belief in its execution (a second impossible assumption that is also not impossible). Even in such a society today, it cannot implement Qisas without hassle and challenges. Below, I will refer to three serious challenges in this regard: 1. The challenge of amputation: In today's societies, medicine has become a profession and doctors swear to help their patients under any circumstances. This patient can be an ordinary person or a criminal. On the other hand, today’s society, and even the religious themselves, do not accept that the life of a criminal can be endangered by amputation. Therefore, they need a doctor for amputation while doctors do not participate in this work. One instance of this challenge is the implementation of the Qisas ruling for acid attack on Davood Roshanaei. Roshanaei lost his right eye and part of his face ten years ago due to an acid attack. The accused of this crime was sentenced in Branch 71 of the Tehran Criminal Court to Qisas from the right eye and left ear lobe, as well as paying Diye for other injuries. This ruling was confirmed after many twists and turns (such as being overturned in the Supreme Court and then confirmed in a retrial in the criminal court) but had not been executed until 11 Esfand 1393 (March 1, 2015). On 6 Dey 1393 (December 27, 2014), the Tehran prosecutor sent a letter to the execution of the criminal court, requesting the swift execution of this ruling, but again the Qisas was not executed. Doctors refused to implement this ruling. No doctor accepted to perform surgery to carry out the Qisas on the condemned's eye and ear. Forensic medicine also does not do this because it considers itself an observer of the execution of the ruling and not its executor. For this reason, just as someone is found on the street and entrusted with carrying out the execution of a death sentence, the same is ultimately done for amputation, which is both in contradiction with the law and Sharia and with the oath that doctors take. Ultimately, after nearly 10 years of this incident and many ups and downs, it was supposed to be executed at 9 AM on 12 Esfand in Rajai Shahr prison (Tasnim 11 Esfand 1393) but was postponed again due to "incomplete medical equipment and coinciding with the days of Fatimah" (ISNA 12 Esfand 1393). The next day, an eye Qisas was carried out (Tabnak, 13 Esfand 1393) and it was stated that the victim had performed the acid attack, but no report of the doctors' participation was provided. Of course, among the doctors, there may be individuals who set aside their medical oath to carry out the Sharia ruling. 2. The challenge of state pricing for Diye: If the price of Diye is left to market conditions and the government does not intervene in this pricing, many Qisas rulings that are considered fundamental in Islam become irrelevant. According to Qisas rulings, the execution of some types depends on the payment of Diye to the family of the person being executed or to the individual themselves. Imagine that a person has to pay tens or hundreds of billions of tomans for the Qisas of a limb or life of their loved one. In this case, nearly all individuals will refrain from seeking Qisas. If the Islamic Republic wants to eliminate Qisas, it can set a high price for it. Thus, by pricing Diye, many types of Qisas can be annulled. 3. The challenge of Qisas for children and adolescents: According to Article 91 of the Islamic Penal Code, "In crimes subject to Hudud or Qisas, whenever individuals under eighteen years of age do not understand the nature of the crime committed or its prohibition, or there is doubt about their growth and maturity, they shall be punished according to their age as provided in this chapter." This article opens the way for killing or amputation of children and adolescents because the court can consider them mature and rational based on the case (especially if they have no relation to influential officials) and punish them. This is not only contrary to international laws but also contradicts many domestic laws that assume the age of rational maturity to be 18 years (for example, for driving, voting, or obtaining a passport independently and without parental permission). According to Article 140 of this law, which has been approved by the jurists of the Guardian Council, criminal responsibility in Hudud, Qisas, and Ta'zirat is only realized when the individual is sane, mature, and free at the time of committing the crime. The custom in Iran considers the age of rational maturity not as the age of physical and Sharia maturity but as social and civil maturity. Referring only to the average marriage age in Iran (28 for men and 23 for women) clarifies this point. The societal norm considers the age of rational maturity for entering into marriage to be above twenty years and not the Sharia maturity age (15 years for boys and 9 or 13 years for girls). What will lead to a transformation in the issuance of Qisas rulings in Iranian courts will be more than the publication of news about these rulings in international media or the positions of governments and foreign organizations, the internal contradictions and challenges of these rulings both theoretically within the framework of different understandings of Sharia and in practice. The legal system, contrary to the beliefs of Islamists, is not an abstract system detached from society that can change society merely through enforcement backed by coercive powers, but society interacts with the legal system and reveals its theoretical and practical problems in execution.