Published: 16 September 2021 Author: Stefan Talmon
On 16 August 2015, Shayan Saeedpour killed a man in a street fight in Iran whilst under the influence of alcohol. At the time of the crime, he was only 17 years old and, according to human rights organisations, was receiving psychiatric treatment. A criminal court in Iran’s Kurdistan Province held him to be fully responsible for his acts and on 23 October 2018 sentenced him to death. The Iranian Supreme Court upheld the death sentence in February 2019. On 19 April 2020, Mr. Saeedpour’s lawyer was informed of his client’s imminent execution.
On 20 April 2020, Bärbel Kofler, the Federal Government Commissioner for Human Rights Policy and Humanitarian Assistance at the Federal Foreign Office, issued the following statement:
“I am very concerned by the news that the execution of the young Iranian Shayan Saeedpour could be imminent. He was only 17 years old at the time of the crime he allegedly committed and was apparently undergoing psychiatric treatment. Various human rights organisations have expressed serious doubts as to whether rule-of-law principles were upheld in the proceedings against him.
Should Shayan Saeedpour be executed, this would be an unacceptable violation of international law. 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.
The German Government is opposed to the death penalty under all circumstances and for all crimes. I thus urgently appeal to the Iranian judicial authorities to refrain from carrying out this planned execution. Shayan Saeedpour must be given a fair trial under the rule of law – and without the imposition of the death penalty.”
Despite international protests, Mr. Saeedpour was executed by hanging on the morning of 21 April 2020. He was one of at least three child offenders executed in Iran between 1 January and 1 December 2020, while over 85 others were on death row.
Over the years, Germany had regularly appealed to Iran to stop executing persons who were minors at the time of the crime and to bring its practice regarding the death penalty in line with its international treaty obligations. Both Article 6 (5) of the International Covenant on Civil and Political Rights (ICCPR) and Article 37(a) of the Convention on the Rights of the Child (CRC) prohibit the imposition of capital punishment for offences committed by persons below eighteen years of age regardless of their age at the time of the trial or sentencing or of the execution of the sanction. 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:
“[T]he 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 girls of at least 9 lunar years and for boys of at least 15 lunar years for qisas (retribution in kind) crimes, such as homicide, or hudud crimes, such as adultery. Iran could thus argue that Article 37(a) CRC 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 Western States parties to the Convention 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(2) CRC provides that a “reservation incompatible with the object and purpose of the present Convention shall not be permitted.” It thus echoes Article 19 (c) of the Vienna Convention on the Law of Treaties. The admissibility of Iran’s reservation thus turns on its compatibility with the object and purpose of the Convention. In its reservation Iran referred, 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 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 was committing 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 (a) CRC, 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. Several other Islamic States made similarly broad reservations. For example, Malaysia expressly reserved the right to apply Article 37 CRC only if it is “in conformity with the Constitution, national laws and national policies of the Government of Malaysia.” In this context, it should also be recalled that of the 196 parties to the Convention only 10 States 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(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 ICCPR to the extent that it was “not repugnant to the provisions of the Constitution of Pakistan and the Sharia laws.”
Unlike in the case of Article 37(a) CRC, Iran did not make a reservation with regard to Article 6(5) 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 Shayan Saeedpour thus clearly violated Iran’s obligation under the ICCPR, the situation regarding the CRC is not as clear cut as the Federal Government Commissioner for Human Rights Policy and Humanitarian Assistance portrayed.
Category: Law of treaties
Prof. Dr. Stefan Talmon LL.M. M.A
Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.