Published: 01 February 2018 Author: Stefan Talmon
On 4 January 2018, Iran hanged 18-year-old Amirhossein Pourjafar, who had been sentenced to death in 2016 for raping and murdering a six-year-old girl from Iran’s marginalised Afghan community. He had also been given 74 lashes for mutilating the corpse of the victim. At the time of the crime, he was 16 years old.
On 8 January 2018, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued the following statement:
“I was appalled to hear of the execution of the young Iranian Amirhossein Pourjafar. Amirhossein Pourjafar was only 16 years old at the time of the crimes he is accused of having committed. His death sentence was upheld in appeal proceedings. Amirhossein Pourjafar committed a serious crime, and I express my profound sympathy to the victim’s family.
Nonetheless, the Federal Government is opposed to the death penalty whatever the circumstances. Iran has ratified the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, both of which prohibit the execution of individuals who were minors at the time of the offence. At least four people who were minors at the time of the crime were executed in Iran in 2017, and many more are on death row. These executions must stop!
I therefore urgently appeal to all those responsible in Iran to immediately suspend all death penalties and completely stop handing down such sentences to minors.”
Several days later, the Federal Foreign Office issued another statement on the death penalty in Iran. In response to reports on the execution of 22-year-old Iranian citizen Ali Kazemi on 30 January 2018 and the imminent execution of 27-year-old Iranian citizen Hamid Ahmadi, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid issued the following statement on 30 January 2018:
“I am deeply shocked to hear that Iran executed Ali Kazemi, a young Iranian, yesterday. Ali Kazemi was only 15 years old at the time of the crime he is accused of having committed. His execution is thus a completely unacceptable violation of international law. His lawyer was not informed of his pending execution. This is at least the second time that a person aged under 18 years old at the time of a crime has been executed in Iran this year. Many other people who were minors at the time of the crime they are accused of having committed are on death row, including Hamid Ahmadi, who was only 17 years old at the time of the crime he is accused of having committed. There are serious doubts as to whether rule-of-law principles were upheld in the proceedings against him.
These executions must stop. Iran has ratified not only the UN Convention on the Rights of the Child, but also the International Covenant on Civil and Political Rights, both of which prohibit the execution of individuals who were minors at the time of an offence. I therefore urgently call on all those responsible in Iran to halt the execution of Hamid Ahmadi and other convicted parties with immediate effect.”
For many years, Germany and other States and international organizations have – unsuccessfully – appealed to Iran to stop executing persons who were minors at the time of the crime and to bring its practice with regard to the death penalty in line with its international treaty obligations.
Both Article 6, paragraph 5, of the International Covenant on Civil and Political Rights and Article 37, paragraph (a), of the Convention on the Rights of the Child prohibit the imposition of capital punishment for offences committed by persons below eighteen years of age. These conventions have been binding upon Iran since 24 June 1975 and 13 July 1994, respectively. However, at least with regard to the Convention on the rights of the Child Iran may point to a reservation made upon ratification of the Convention which reads as follows:
“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 internal legislation in effect.”
The Sharia (Islamic law) allows for the death penalty for persons under the age of 18 years who committed a hudud or qisas crime such as murder, adultery, apostasy and waging war against God. Iran could thus argue that Article 37, paragraph (a), of the Convention on the Rights of the Child does not apply to the extent that the Islamic Penal Code of Iran provides for the death penalty for offenders under the age of 18.
Germany and several other States parties to the Convention on the Rights of the Child objected to the Iranian reservation. On 11 August 1995, Germany sent the following objection to the United Nations Secretary General as depositary of the Convention:
“The Government of the Federal Republic of Germany has examined the reservation contained in the instrument of ratification by the Government of the Islamic Republic of Iran, which reads as follows: ‘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 internal legislation in effect.’
This reservation, owing to its unlimited scope and undefined character, is inadmissible under international law. The Government of the Federal Republic of Germany, therefore, objects to the reservation made by the Islamic Republic of Iran.
This objection shall not preclude the entry into force of the Convention as between the Islamic Republic of Iran and the Federal Republic of Germany.”
Article 51, paragraph 2, of the Convention on the Rights of the Child expressly provides that a “reservation incompatible with the object and purpose of the present Convention shall not be permitted.” It thus echoes the provision in Article 19, paragraph (c), of the Vienna Convention on the Law of Treaties. The admissibility of Iran’s reservation thus turns on the question of whether it is compatible with the object and purpose of the Convention on the Rights of the Child. In its reservation Iran refers, in general terms, to “any provisions or articles of the Convention that are incompatible with Islamic Laws and the internal legislation in effect”. Reservations invoking provisions of a State’s internal law as a justification for not performing its treaty obligations are not generally incompatible with the object and purpose of a treaty. In the present case, however, Iran referred to “Islamic Laws” and its “internal legislation” in general and did not specify the particular provisions of the Convention which it did not intend to apply. This made it impossible for the other States parties to the Convention to determine the extent to which Iran committed itself to the Convention and therefore created uncertainties about Iran’s commitment to fulfil obligations under the Convention. While such broad and indeterminate reservations may raise doubts as to the commitment of the reserving State to the object and purpose of the Convention and may contribute to undermining the basis of international treaty law, they are not incompatible with the object and purpose of a treaty as such.
A reservation is incompatible with the object and purpose of a treaty if it intends to derogate from a provision the implementation of which is essential to fulfilling the treaty’s object and purpose. Whether a reservation passes the compatibility test thus depends on the treaty provision to which the reservation is to apply. However objectionable it may be to Germany, it is not at all clear that a reservation to Article 37, paragraph (a), of the Convention on the Rights of the Child, reserving the right to execute – in accordance with Islamic laws – persons, who were minors at the time of the crime, is incompatible with the object and purpose of the Convention. For example, Malaysia expressly reserved the right to apply Article 37 of the Convention only if it is “in conformity with the Constitution, national laws and national policies of the Government of Malaysia.” In addition, several other Islamic States made similar broad reservations as Iran. In this context, it should also be recalled that of the 196 parties to the Convention only 10 State objected to the reservations made by Iran, Malaysia and other Islamic States.
Furthermore, upon ratification of the International Covenant on Civil and Political Rights (ICCPR) on 8 June 1992 the United States of America made a reservation to Article 6, paragraph 5, reserving the right “to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” Pakistan also reserved the right to apply Article 6 of the ICCPR to the extent that it is “not repugnant to the provisions of the Constitution of Pakistan and the Sharia laws.”
Unlike in the case of the Convention on the Rights of the Child Iran did not make a reservation with regard to Article 6, paragraph 5, of the ICCPR. This may be explained by the fact that Iran ratified the ICCPR on 24 June 1975, that is, prior to the Islamic revolution and the introduction of Sharia law in Iran. While the execution of Amirhossein Pourjafar thus clearly violated Iran’s obligation under the ICCPR, the situation with regard to the Convention on the Rights of the Child is not so clear cut.
Categories: Human rights, law of treaties
