Wednesday, 25 August 2010

The Case of Sakineh M. Ashtiani and the Dual Illegality of Stoning

Yet again international attention has been directed to the government of the Islamic Republic of Iran (IRI) as they engage in battle against defenders of human rights so that they may further perpetrate human rights violations. In this case, they intended to stone to death Sakineh Mohammadi Ashtiani. Now, in an attempt to placate the international community, the Judiciary claims that they wish to hang her.

Sakineh was first tried on May 15, 2006, pleading guilty to the crime of engaging in an "illicit relationship" - even though the incident occurred after the death of her husband. She was sentenced to 99 lashes, which was carried out. In September 2006 her case was re-opened and she was again convicted of adultery while still married, and sentenced to death by stoning. She later retracted her confession to the charge, claiming it was made under duress and that she doesn't speak Farsi, only Turkish. The judiciary has violated a provision of a leading international human rights legal instrument that binds the IRI - the International Covenant on Civil and Political Rights (ICCPR), 1966, Article 14(7) which protects against any person being tried for the same crime twice (‘double-jeopardy’ rule).

The Iranian Supreme Court confirmed her death sentence on May 27, 2007. Only a pardon from the Supreme Leader, Ali Khamenei, could prevent her execution. Her defence attorney, Mohammad Mostafaei, was forced to flee the country in exile after his wife and family in law were illegally detained by the authorities on the ransom that he turn himself in. The IRI authorities have a notorious track record for harassing and torturing human rights defence lawyers; Mostafaei is no new case. Human Rights organization Neda for a Free Iran has expressed outrage at this gross abuse of power by the IRI judiciary.

The IRI is notorious for having one of the most shamefully highest rates of executions in the world - a high proportion of executions include the stoning of what appears to be mostly women charged with ‘adultery’. The IRI claim that the brutal physical punishments they administer are in accordance with Islamic law (Shari’a). This article shall prove that stoning is both against the Shari’a, as well as international law.

The Shari’a regards adultery as an offence, which is referred to as ‘Zina’. Punishment for such applies to any ‘Muslim adulterer/adulteress who is of sound mind, and is fully aware of their actions and performs such actions with intent; they must be of full age and understanding at the time of the offence’. The Quran prescribes the punishment of one hundred lashes, “stripes”, against the ‘fornicatress’ and ‘fornicator’ in Surat Al Nur (Chapter 24, Verse 2). Therefore, the Quran prima facie prescribes flogging as punishment and not stoning.
The only other primary source of the Shari’a is the testimonies of witnesses to the traditions practiced by the Prophet, or Sunnah, which has been recorded in hadith compiled by Sahih Bukhari (volume 8, book 82, number 806), prescribing stoning for the offence of adultery:

“A man came to Allah’s Apostle...saying ‘I have committed an illegal sexual intercourse’... and when he confessed four times... The Prophet said ‘take him away and stone him to death’ ... and we stoned him ... to death”

It is evident from this hadith that the Prophet applied the punishment of stoning for the offence of adultery; therefore, one may infer that, in effect the, Shari’a does in fact prescribe death by stoning as the punishment for adultery.

There have been some interpretational difficulties with the arguments of scholars regarding the actual prescribed punishment of stoning for committing adultery – Professor Bassiouni argues that the Prophet ordered the adulterers to be stoned before the ‘advent of the Quran’s provision that provides flogging’. However, according to Bukhari’s hadith, volume 8 of book 82, number 824, it was recorded that there was doubt as to whether the Prophet ordered the punishment of stoning before or after the revelation of Surat Al-Nur. If the Prophet made the order for stoning after the Quranic revelation, then one would infer that the flogging is administered against the fornicator, as stipulated in the Quran, and stoning applies to the adulterer; thus, regarding the Prophet’s practice as a complementary expansion on the offence of Zina. Otherwise, one would adopt Professor Bassiouni’s interpretation that the latter revelation of Surat al-Nur overrides the Prophet’s prescribed punishment of stoning. This uncertainty has left the faith of Islam in a serious dilemma, one that has provoked international condemnation; given Muslim States, such as Sudan, Nigeria and the IRI, implement and enforce stoning as the punishment for adultery.

One point is certain, in Islam, when there is a doubt concerning precedence of the hadith against a revelation in the Quran, one is to err on the side of caution and simply endorse the Quran’s guidance, which in this case would not advocate stoning.

Nevertheless, even in accepting that perhaps the Shari’a does prescribe stoning against the adulterer, there are a series of stringent conditions that need to be satisfied in order for stoning to apply. There are two types of evidence that support the charge of adultery – a confession, and/or eye-witness testimony. Where confessionary evidence is concerned, such must be as explicit as possible, in that it should state that actual sexual intercourse by way of penetration took place; this is in order to prevent any doubts or misinterpretations of the confession from arising so that an innocent individual is not punished.

In the case of witness testimony, the testimony should be made by four males, who are of justifiable credible character; their testimonies must corroborate each other accurately with regards to the time, place, date, act and parties concerned. If any one of the witness testimonies are inaccurate or in conflict with another’s, then, essentially, the punishment of stoning is waived, given doubt on the guilt of the defendant has arisen. In such a case, the witnesses will be charged under Islamic law for ‘false accusation’, and may be sentenced to eighty lashes, as directed by the Quran (chapter 24, verse 4).

In assessing the stringent requirements for establishing culpability, a number of issues arise with regards to the practicality of satisfying the requirements that could result in condemning the accused to a slow and barbaric death. The burden of providing accurate eye-witness testimony against the accused is very heavy, as no one would be willing to risk receiving eighty lashes for providing what may consequently be false or inaccurate information; therefore it is highly improbable to find four individuals who are unequivocally certain of the accuracy of their testimonies.

Furthermore, it is even more unlikely that any such witnesses would exist, given that one who seeks to engage in an extra-marital affair, involving sexual intercourse, would be absolutely cautious in order to avoid detection; such an individual would have to engage in the act in public in order for the requirement of ‘four witnesses’ to be satisfied in the first instance. It is highly improbable and unlikely, that such would take place in full view of the public, and four people would witness such an act at all. As a result, the prescription of stoning – as barbaric as it is - can exist as a theoretical deterrent at best, posing merely as a form of intimidation to those contemplating betraying the trust of their spouse.

In applying the above to the cases of stoning in the IRI, there should be none occurring whatsoever. It is likely that one who confesses was coerced into confessing, as was the case with Ms Ashtiani, given that no sane individual would confess to having committed adultery in knowledge that the stoning pit awaits them. Yet more and more women are stoned. By this it is evident that the authorities are not only abusing, but are blatantly violating the rules of due process with regards to the evidential requirements in establishing the application of stoning upon the accused adulterer.

However, the IRI routinely abuse such guidelines and stringent evidential requirements, and in doing so breach international human rights law. Article 104 of the Islamic Penal Code of the IRI demands that the stones to be cast are not to be big enough to kill by one or two throws, nor must they be so small that they cannot be called a stone. In essence, Article 104 has facilitated the provision of death by torture - the condemned is struck by stones of a size that will cause a slow and painful death. In the case of Ng v Canada (case 469/91, 5 November, 1993), in assessing the validity of such methods, the Human Rights Committee re-affirmed, as it did in its General Comment 20 on Article 7 ICCPR prohibition of torture or cruel, inhuman or degrading treatment or punishment, that the execution of a death sentence

“…must be carried out in such a way as to cause the least possible physical and mental suffering”.

Messrs Sadi and Mavrommatis of the concerned Human Rights Committee held that death by ‘stoning’ was a clear and more accurate example of death by ‘prolonged physical and mental suffering’, which ultimately violated Article 7. Article 104 of the Islamic Penal Code of the IRI is a blatant illustration that death by stoning is intended to result from ‘prolonged physical and mental suffering’; thus, presenting an unequivocal illustration of the illegality of such a practice.

Thus, the IRI-sanctioned punishment of death by stoning is illegal, and a reprehensible violation of both international law and Islamic law. The execution of such a punishment is carried out by a mob of blood-thirsty savages, who cast white stones so as to compensate for the blackness of their hearts that would have them all too eagerly torture people to death. The fact that the IRI have breached the ‘double-jeopardy’ rule and plan to execute Sakineh for a ‘crime’ that she has already been tried and punished for not only violated international law, it befouls the very principles of the establishment of a judiciary, which is supposed to honour justice rather than serve the interests of a patriarchal system of misogyny.


  1. bravo Mehrtash... very true.
    Just one question - I too have thought of all these three layers of illegality, but am not so sure about the violation of the ne bis in idem rule anymore, or better put - I don't actually know what happened - Was she tried the second time for the same act or another one? You know what I'm asking? Would really appreciate the answer, cos' I need it to write a letter :)

  2. As a matter of a technicality, her initial charge of adultery was used against her a second time amongst others. Legally, that cannot be so.

  3. Used as proof?? So it was the same act? They just later "discovered" that it happened before the death of her husband? Sorry, I'm just having difficulty understanding.

  4. oh charge... i thought verdict... ok i think i get it. thx!