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Law lecturers explain international law and the death penalty

In a letter to the Iranian Embassy in London, two lecturers from Kent Law School have explained that ‘stoning can never be justified on any grounds in international law’. The letter, which was signed by Sian Lewis-Anthony and Dr Gbenga Oduntan, members of the School’s Centre for Critical International Law and the Student Advocacy Group, reads:

‘We the undersigned are gravely concerned for the fate of Mrs Sakineh Ashtiani who faces execution by stoning. It is understood that your government is within hours (and at most a few days) going to carry out the death penalty. We urge you not to subject her to execution by stoning, or indeed by any other method.

‘Stoning is an extremely cruel punishment and is contrary to Article 1 of the UN Convention against Torture which prohibits torture. The prohibition of torture is also recognised as a jus cogens norm in international law which cannot be derogated from in any circumstances whatsoever. In other words, stoning can never be justified on any grounds in international law.

‘The death penalty itself is arguably contrary to international law. In 2007, the UN General Assembly passed a resolution calling for a moratorium on the death penalty, supported by 104 states parties. The resolution is a reminder of member states' commitment to work towards abolition of the death penalty. The vast majority of members of the UN have now abolished the death penalty and the UN, having drafted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), is making a concerted effort to ban the use of the death penalty world-wide. This Protocol has been ratified by 72 states; the 47 members of the Council of Europe have all banned the death penalty. In any event, the ICCPR (ratified by Iran) Art 6 which guarantees the right to life, states in paragraph 2 as follows:

'In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.'

‘We note that the allegations against Mrs Sakineh consisted originally of the commission of the offence of adultery. It is generally accepted all over the world and across all cultures that while adultery is morally wrong, it is not one to which the description "the most serious crimes" ought to apply. In any event, the charges of adultery related to a time after her husband’s death; adultery is not possible in these circumstances. We understand that following international concern for Mrs Sakineh, her conviction was revoked, but that then a fresh charge was made against her, namely murder. We further understand that she was convicted of this offence and has now been sentenced once again to death by stoning. This is despite the fact that she had already been convicted for complicity in the same murder and was serving a sentence of imprisonment. Her conviction for murder in these circumstances offends against the double jeopardy rule, contained in Article 14(7) of the ICCPR:

'No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.'

‘Furthermore we wish to draw your attention to the fact that the imposition of the death penalty on Mrs Ashtiani following a trial widely regarded as lacking due process, would amount to an arbitrary deprivation of life, contrary provisions in Art 6 of the ICCPR.

‘It is also regrettable that the Iranian authorities have also detained Mrs Ashtiani’s the son and lawyer, as well as two German journalists. We understand that Mrs Ashtiani, her son and her lawyer have all been subjected to torture, contrary to jus cogens. The detention of these other persons appears to be an attempt to prevent them from exercising their rights to freedom of expression, contrary to Article 19 of the ICCPR, and to punish the lawyer for attempting to defend Mrs Ashtiani in accordance with the provisions of Article 14 guaranteeing the right to a fair trial.

‘The detention of Mrs Ashtiani's son, lawyer and the two journalists on the sole basis of having called for international support of her cause and mounting her legal defence, are further instances of arbitrariness under international standards. These may be regarded as arbitrary detention contrary to the right to liberty and security protected by Art 9 of the ICCPR. The importance of the right to liberty and security has been recognised for centuries and finds expression in a number of important antecedents to international human rights treaties, such as the Magna Carta of 1215, and the American and French Constitutions of the 1700s.

‘In the circumstances and in the overriding interests of justice and human compassion we urge you to reconsider the highlighted actions in favour of the mentioned persons. More importantly we ask you for the sake of elementary considerations of humanity to spare the life of Sakineh Ashtiani.’


Story published at 10:45am 5 November 2010

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