THE LEGAL FRAMEWORK

The International Covenant on Civil and Political Rights (ICCPR), ratified by Iran in 1975, includes many provisions of relevance to the rights of minorities. In keeping with its mandate, Human Rights Watch will focus on articles dealing with denial of individual rights protected by international instruments. This document does not discuss the right of self-determination as provided by Article 1 of the covenant.2

Article 2 of the International Covenant on Civil and Political Rights requires all states to accord the rights provided for in it to "all individuals...without distinction of any kind." This fundamental principle of non-discrimination is also set forth in Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights, also ratified by Iran in 1975. Thus Iran is obliged by its treaty commitments to provide a full panoply of rights to its citizens without discrimination on such bases as "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."3 These include a basic right to equality before the law, as well as a right of equal access to education, health care, professional opportunities, and housing, among many others.

In May 1992, in its second periodic report submitted to the United Nations Human Rights Committee, the body of independent experts charged with reviewing state compliance with the International Covenant on Civil and Political Rights, the Iranian government set out the legal measures it has implemented to fulfill its treaty obligations with respect to non-discrimination.4 The government gave prominence in its report to explaining that while "Islam is the official religion (referring to the sect Ja'fari Isna Ashari )," the rights of other Islamic schools are to be accorded full respect. Secondly it stated:

Zoroastrian, Jewish and Christian Iranians are recognized religious minorities which, within the limits set by the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education.

Finally the government stated:

The Government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights...The term "non-Muslim" here also means those persons who do not believe in monotheism.

However, this guarantee was qualified by the statement: "This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran."5

This presentation suggests that the government of Iran, with its explicit Shi'a Islamic orientation, is prepared merely to pay lip-service to the principle of non-discrimination on the basis of religion as laid out in international law. The qualification that those who engage in activity considered to be "against Islam" do not merit respect for their human rights gives cause for concern, as does the formulation restricting the rights of non-Muslim minorities "within the limits set by the law." These caveats raise doubts about the extent to which the Iranian government agrees to be bound by its international obligations.

Article 27 of the ICCPR deals directly with the question of religious and ethnic minorities. It states:

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

Many articles of Iranian legislation outlaw discrimination on the basis of race or national origin. Article 19 of the constitution of the Islamic Republic of Iran states: "All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights, and color, race, language, and the like do not bestow any privilege." The right of equality before the law is guaranteed in Article 3(14) of the constitution.

Articles 13 and 14 of the constitution refer to the freedom of recognized religious minorities. Article 13 states, "Zoroastrian, Jewish and Christian Iranians are the only religious minorities who, within the limits of the law, are free to perform their religious rites and ceremonies and to act according to their own canon in matters of personal affairs and religious education."Article 14 explains that, "The Government of the Islamic Republic of Iran and all Muslims are duty bound to treat non-Muslims in conformity with equitable norms and the principles of Islamic justice and equity and to respect their human rights. This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran." Article 15 permits the use of "local and ethnic languages" and the teaching of "ethnic literature" in schools, while installing Persian as the official language.

Iran's practice has fallen short of even these qualified commitments to implement the principle of non-discrimination on the basis of religion or ethnic identity. In addition, other legislative provisions are clearly discriminatory, especially toward non-Muslims.

Articles of Legislation Discriminatory to Non-Muslims

The Penal Code

A fundamental problem in the penal code is that the communities referred to by the terms unbeliever or non-Muslim are not defined in the law. This is important because while some non-Muslims, kafir zami,6 have some level of protection under the law, others who do not fall under this definition have no protection whatsoever. According to Ayatollah Ruhollah Khomeini, the first leader of the Islamic Republic, the religious communities accorded the status of zami in the Islamic Republic are Christians, Jews and Zoroastrians.7 However, Ayatollah Khomeini's statements and religious legal opinions (fatwa) do not have the status of binding written law in Iran.

To avoid ambiguity a definition must be provided in the constitution, the penal code or elsewhere in the codified law of the country. Not all religious authorities would agree that Zoroastrians, for example, should be accorded the status of zami, and yet the constitution provides, in Article 12, that other established schools of Islamic jurisprudence should be accorded equal weight.8 The inclusion of Zoroastrians as zami is an Iranian peculiarity not found in the established schools of jurisprudence. Thus the rights of non-Muslims are at best ambiguous and subject to divergent interpretations in the penal code.

In addition to this basic ambiguity about protected minorities, a number of articles of the penal code are directly discriminatory in their treatment of all non-Muslims. For example, Article 207 of the penal code states that if a non-Muslim kills a Muslim then the killer is liable to legal retribution, qisas, and subject to the death penalty. The principle of qisas requires that the nature and severity of the punishment should be equivalent to that of the offense. Therefore, the qisas punishment for murder is death. However, in some cases the penalty may be replaced by the payment of blood money (diyah) to the family of the victim.

If a non-Muslim kills another non-Muslim, qisas applies. However, if a Muslim kills a non-Muslim, the law does not require qisas, and does not specify a punishment. Article 2 of the penal code makes clear that the existence of a specified punishment denotes the existence of an offense. Therefore, in the absence of a specified punishment in this instance, the judge may even rule that no offense has taken place in the willful killing of a non-Muslim by a Muslim. Therefore, the penal law applies less value to the life of a non-Muslim as compared to a Muslim and may even permit the murder with impunity of non-Muslims by Muslims.

Other lesser offenses also provide for differential sentences between Muslims and non-Muslims. For example, Article 88 of the penal code states that if a Muslim man commits adultery with a Muslim woman, the penalty is 100 lashes for the man. However, if a non-Muslim man commits adultery with a Muslim woman, his penalty is death. No penalty is specified for the Muslim man who commits adultery with a non-Muslim, woman. Similarly with homosexuality, under Article 121 of the penal code, non-penetrative sex between two Muslim men is punished by 100 lashes. However, if one of the partners is non-Muslim, the penalty for him is death. The crime of malicious accusation is punished, according to Article 147 of the penal code, by eighty lashes if the victim is a Muslim. However, if the victim is non-Muslim, the maximum penalty is set at seventy-four lashes. In this article, non-Muslims are equated in their treatment with minors and those lacking their full mental capacities. Article 494 of the Penal Code provides penalties for violating the corpse of a Muslim; no penalties are stipulated for violating the corpse of a non-Muslim.

The penal code, which is derived from traditional Islamic legal principles, is nevertheless applied fully to non-Muslims whose own traditions of penal law may be quite different.

Explicit discrimination is also found in legal texts other than the penal code. For example, Article 115 of the constitution of the Islamic Republic requires that the president should be a Shi'a Muslim, thus excluding more than 20 percent of population from taking full part in the conduct of the public affairs. Articles of the Iranian Civil Code that deal with matters of inheritance create a privileged status for Muslims. Article 881 of the civil code prohibits a non-Muslim from inheriting property from a Muslim. Moreover, it provides that if a non-Muslim dies and there is among his beneficiaries even one Muslim, this legatee, even if he is only a distant relative, inherits all the property. This article of the civil code conflicts with the constitutional provision permitting religious communities to deal with matters pertaining to personal status in accordance with their own laws and practices.

According to Article 1059 of the civil code, a Muslim man is free to marry a non-Muslim woman. However, the opposite does not apply. A marriage between a non-Muslim man and a Muslim woman is not recognized.

Other areas of legislation discriminate against non-Muslims. For example, according to the law on the selection of judges of 1983, the judge must be a Muslim man. The constitution provides, in Article 163, that the qualifications of the judge will be determined in accordance with the principles of fiqh, or Islamic jurisprudence. Many areas of the civil service have an explicitly Islamic mission or orientation, especially the army. The constitution provides in article 144 that, "the army of the Islamic Republic of Iran must be an Islamic army ... and must recruit into its service individuals who have faith in the objectives of the Islamic Revolution."

Legislation Affecting Freedom of Religion

Article 18 (2) of the ICCPR states, "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion of his choice." Iranian laws appear to uphold the principle of absence of coercion in choosing or practicing a religion. For example, Article 23 of the constitution states, "The investigation of individuals' beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief." The government has pointed out that apostasy is not a crime under any codified law, and that where no penalty exists in law, there can be no crime.9 Nevertheless, Article 167 of the constitution provides a judge with the discretion "to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa (rulings issued by qualified clerical jurists)."

Given the vast extent of such rulings, many of which may be mutually contradictory, there is considerable uncertainty about what constitutes an offense under the law. In the specific area of religious freedom many qualified jurists, including Ayatollah Khomeini, whose teachings, as the founder of the Islamic Republic of Iran, enjoy a privileged position in contemporary Iranian clerical jurisprudence,10 have ruled that the penalty for conversion from Islam, or apostasy, is death.

The Iranian government has argued that it is not required to recognize the right of conversion from one religion to another, which is not explicitly referred to in Article 18 of the ICCPR. The U.N. Special Rapporteur, on the Question of Religious Intolerance, Abdelfattah Amor, responded to this objection by referring the government to the General Comment of the U.N. Human Rights Committee. In its General Comment 22(48), the committee recognized that Article 18 ensured the right to replace one's current religion or belief with another or to adopt atheistic views, and that the ICCPR bars coercion that would impair this right. This General Comment was adopted in July 1993, after Iran's last appearance before the committee in 1992.

As a matter of law, on the basis of its obligations as a state party to the ICCPR, Iran is obliged to uphold the right of individuals to practice the religion of their choice and to change religions, including converting from Islam. The prosecution of converts from Islam on the basis of religious edicts that identify apostasy as an offense punishable by death is clearly at variance with this obligation.