Forgiveness Work

Mercy, Law, and Victims' Rights in Iran

Arzoo Osanloo

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691201535
• Topic: Ciencias sociales
• Subtopic: Estudios islámicos

A remarkable look at an understudied feature of the Iranian justice system, where forgiveness is as much a right of victims as retribution Iran's criminal courts are notorious for meting out severe sentences—according to Amnesty International, the country has the world's highest rate of capital punishment per capita. Less known to outside observers, however, is the Iranian criminal code's recognition of forgiveness, where victims of violent crimes, or the families of murder victims, can request the state to forgo punishing the criminal. Forgiveness Work shows that in the Iranian justice system, forbearance is as much a right of victims as retribution. Drawing on extended interviews and first-hand observations of more than eighty murder trials, Arzoo Osanloo explores why some families of victims forgive perpetrators and how a wide array of individuals contribute to the fraught business of negotiating reconciliation.Based on Qur'anic principles, Iran's criminal codes encourage mercy and compel judicial officials to help parties reach a settlement. As no formal regulations exist to guide those involved, an informal cottage industry has grown around forgiveness advocacy. Interested parties—including attorneys, judges, social workers, the families of victims and perpetrators, and even performing artists—intervene in cases, drawing from such sources as scripture, ritual, and art to stir feelings of forgiveness. These actors forge new and sometimes conflicting strategies to secure forbearance, and some aim to reform social attitudes and laws on capital punishment. Forgiveness Work examines how an Islamic victim-centered approach to justice sheds light on the conditions of mercy.

PART I

Crimtorts

1

Legal Foundations

VICTIMS’ RIGHTS AND RETRIBUTION

“WHAT WOULD YOU LIKE TO DO?” The chief judge posed the question to the victim’s family, plaintiffs in the criminal case before him.

In the murder trial taking place in Iran’s capital, Tehran, a grieving mother rose from her front-row seat and stepped towards the podium in the Grand Courtroom—one of two such courtrooms that hear major murder cases in Iran’s most populous province. Deep red curtains lined the walls of the large assembly room, while dozens of rows of plush, plum-colored theater seats accommodated family members of the deceased, journalists, and law students sitting in on a trial deemed by the head of Tehran Municipality’s Provincial Criminal Court as instructive for observers of various disciplines. Everyone present knew that the victim’s family possessed the right of qisas (retribution), but that they could also gozasht (forgo) it. In Iran’s victim-centered approach to criminal justice, the law recognizes the rights of injured parties ahead of those of the public. In this case, the parents of a deceased young woman were the parties granted the right to settle a score with the alleged perpetrator.

Minutes earlier, the judges had entered the room and all present had risen in a show of respect. The judges took their seats behind desks that sat atop an elevated platform. The chief judge on the case, a forty-year veteran of the court, was positioned in the middle of the stage-like dais at one end of the courtroom. An aisle in the middle of the room divided the rows of seats. On the right side of the room, the defendant, the man accused of murdering the woman, sat in the front row with his attorney beside him. Across the aisle, on the left, sat the deceased’s parents, her next-of-kin, and as such, the plaintiffs in the case. A wooden podium equipped with a microphone was mounted at the center of the aisle between the opposing parties, about twenty feet from the judicial panel. Behind a second podium, this one positioned to the left, the assistant prosecutor stood, poised to read the indictment.

The chief judge opened the hearing with a brief case summary and acknowledged the many students and observers present. He turned to the assistant prosecutor, a man in his early thirties, to present the state’s case against the accused. The courtroom remained silent as the prosecutor read the lengthy indictment, detailed the events leading up to the young woman’s death, the manner and findings of the investigation, and the charge: intentional murder. The prosecutor then told the court that, on behalf of the people of the province of Tehran, his office sought the maximum penalty for the alleged crime: a ten-year prison sentence.¹

The chief judge next turned to the victim’s aggrieved parents and identified them as the private plaintiffs in the case. He asked them to approach the podium. Wearily, they came forward. The mother towered several inches over her husband. At the lectern, the parents stood a mere foot from the man accused of murdering their daughter. Although there had yet to be a finding of guilt, the judge, who now spoke in a soothing tone, asked the parents to articulate to the court the relief that they sought for their daughter’s death—retribution or forbearance. As Iran’s criminal laws permit, it was the parents who would determine the fate of their daughter’s alleged murderer. However, first, there had to be a finding of guilt.

Opening the questioning with the relief sought by the victim’s next-of-kin served as a dramatic overture—shining a light on the rights of the injured, underscoring their centrality to the process, and offering them the courtroom as a space in which to voice their grievances. And, technically, in order for the case to proceed, the plaintiffs needed to file their demand. If plaintiffs opted to forgo retribution, which they could at any time, the accused would face only the prison sentence sought by the state in a secondary hearing for disrupting public peace and security. Their demand for retribution would set into motion a process leading to the defendant’s execution, but would not foreclose the possibly of forbearance prior to it.

The victim’s mother, her husband silent by her side, drew the microphone to her lips and audibly inhaled a mouthful of air before uttering her response.

Iran’s Criminal Laws

Although Iran witnessed some codification of positive law (qanun) in the mid-nineteenth century, most scholars reference the Constitutional Revolution of 1906–11 as the pivotal era in which a new parliament set out to draft centralized statutory laws aimed at state-building and centralizing power (Enayat 2013).² To construct an integrated body of law, over the following decades, legislators drafted civil and penal codes drawn from French and Belgian laws. At the same time, the drafters asserted the law’s conformity with Shi‘i Islamic principles (Banani 1961; Gholami 1998–1999; Mohammadi 2007). Although a protracted affair, the drafting of the penal code was a paramount concern. Law served as a technique of power for the new government, whose prerogative as sovereign was to assert control over the body politic and to maintain order.

Reforming the criminal codes required some finesse, as some statesmen and members of the ‘ulama argued that shari‘a-based punishments were sacred and thus impervious to codification.³ Others felt that shari‘a-based punishments did not adequately address the concerns of the times and that public spectacles of corporal punishment and execution were unnecessary for deterrence. The latter groups of statemen argued that social order could best be achieved through a legal system that adhered to a transparent structure of sanctions imposed through predictable legal procedures. To avoid breaching the sanctity of the shari‘a, lawmakers framed their pursuit of a codified criminal justice system as a modification of the ‘orfi (customary) laws that left the shari‘a intact (Enayat 2013:106). The first version, then, of the Qanun-e Jaza’i-ye ‘Orfi (The Customary Penal Code), adopted in 1917, was modeled on the French Penal Code of 1810 and its 1858 Ottoman adaptation (Enayat 2013:107). That penal code, however, distinguished penalties issued for the preservation of public order from those of felonies (Enayat 2013:108). The latter would be the sole province of the shari‘a and would be adjudicated in the Special Criminal Courts by a “shari‘a judge.” The classification of crimes had been established in 1912 with promulgation of the Code of Criminal Procedures, also adopted from the French.

Upon Reza Pahlavi’s ascension as the Shah (King) of the new Pahlavi dynasty, on December 12, 1925, legislators were already working on drafting a revision to the penal code, fueled by the reformist energies of the previous era. Spurred by the Shah’s drive for an Ataturk-style of modernization, reformists were more openly critical of shari‘a and advocated for Western legal codes. Others, such as Mohammad Mossadeq, who would become Prime Minister in 1951, took a more conciliatory approach, focusing on necessity and reason. Mossadeq, who taught law early in his career, argued in his 1914 doctoral thesis, published in Iran in 1923, that reason is the most important source of Islamic law and that when positive law is based on reason, it is also in conformity with the shari‘a (Dahlén 2003:147).⁴

The 1926 penal code went further in secularizing the law by making murder a public offense; it would not be adjudicated through qisas. Although a provision in the penal code appeared to preserve violations of the shari‘a, jurists of the time considered it to be a tactic to mollify the ‘ulama. The standards of evidence were set too high to prove shari‘a offenses and, since shari‘a courts did not accept forensic or circumstantial evidence, the shari‘a was rendered ineffectual for the state’s criminal justice purposes (Enayat 2013:109). Ultimately, the Special Criminal Court was eliminated.

Despite continued debates over the source of law and jurisdiction for punishing infractions, in the almost seventy years between the constitutional period and the 1979 Revolution, Iran’s criminal codes went through a series of secularizing reforms that systematized offenses and punishments while establishing a hierarchy of courts to investigate and adjudicate allegedly criminal behavior and to arbitrate over disputes. Already by 1939 the civil and criminal codes no longer contained references to the shari‘a (Mohammadi 2007:230).

In 1979, when a popular revolution removed the monarchy, a coalition of leaders, including religious and secular nationalists, established a new system of governance: an Islamic Republic. A referendum vested the ‘ulama with immense political authority through the power of the Velayat-e Faqih (Guardianship of the Jurisprudent).⁵ In this newly constituted branch of government, the religious leadership consolidated power by supervising judicial, military, and other matters deemed important to the political organization of the state. When Ayatollah Khomeini was elected as the country’s highest authority, Vali-ye Faqih (Ruling Jurist), he was empowered to determine the conformity of all the nation’s laws with Islamic principles. He quickly moved to dissolve the existing judicial apparatus and renewed his call to integrate shari‘a into state law.⁶ This was a substantive shift from the previous era in which laws were not to conflict with shari‘a (Gholami 1998–1999:214).

The newly-formed Islamic Republic of Iran made interpreting the shari‘a a project of the central government and gave that authority to a few jurists over legislators or even other qualified jurists.⁷ Article 167 of Iran’s post-revolutionary constitution limited the sources of law and legal reasoning to Shi‘i jurisprudence.⁸ As a result, many post-revolutionary revisions to the laws arose from the leadership’s goal of grounding the institutions of government in Shi‘i Islamic traditions. Khomeini considered Iran’s penal codes, along with its family laws, to fall under the authority of such jurisprudence. Thus, after the 1979 Revolution, the newly formed judiciary began to rewrite the country’s legal codes, with the aim of bringing them into conformity with the new leaders’ interpretations of the shari‘a.

Initially, the notion of codification proved to be controversial. Ayatollah Khomeini had stated that there would be no need for legal codes, which he had deemed a western mechanism. Instead, Khomeini was intent on drawing directly from clear religious prescriptions. Thus, the government dismantled much of the systematization of the previous era. For instance, municipal courts that handled a wide range of disputes were initially replaced by revolutionary shariat (Islamic) courts that gave judges broad jurisdiction over the kinds of cases they heard, with marked attention to crimes against the state and the aims of the revolution.⁹ Shortly thereafter the shariat courts proved ill-equipped to interpret loose and malleable scriptural principles, and different jurisdictions issued divergent rulings.

In the immediate post-revolutionary period, the repeal of laws and the closure of courts without institutions to replace them made it difficult for the judiciary to process legal complaints. In an effort to rehabilitate the poor standing and inefficiency of the courts, the judiciary increased the use of alternative dispute resolution practices. Drawing upon what it felt were principles of shora (consultation) rooted in Islam, the judiciary created various councils to house alternative dispute resolution practices (Jalali-Karveh 2006). One of the effects of the new councils was the judiciary’s decentralization (Mahmoudi 2006a:426). This shift towards conflict resolution outside of the courts led to certain procedural changes, including a mandate to judges to encourage negotiation in disputes.

Nonetheless, this inefficacy necessitated renewed labors to codify and, thus standardize, the laws, but now included an effort to Islamicize them as well. Seeking to rein in the wide-ranging sanctioning practices by judges poorly trained to construe the shari‘a, in the early 1980s, Iran’s parliament, the judiciary, and the Council of Guardians reintroduced criminal codes derived from classical Shi‘i fiqh (jurisprudence), in accordance with how the state’s religious leaders interpreted them. In doing so, the government also asserted a monopoly on exegesis, historically the domain of any qualified jurist, not state lead...