Like many states, Iran has an ambivalent position towards the Statute of the International Criminal Court (‘Statute’), ranging from enthusiastic support to open scepticism. On account of its experience in the Iraq–Iran war, Iran is interested in exploring the Court's jurisdiction over aggression and war crimes; in addition, it sees the possible adoption of provisions on the crime of aggression as a tool against greater powers’ domination. Major issues for Iran are, however, some of the penalties provided for under Iranian criminal law, including capital punishment as well as whipping, stoning and the sectioning of limbs as well as the treatment of minorities and gender. Another problem may be the presence of non-Muslim Judges at the Court, who, it is feared, may not be familiar with and sensitive to Shari’a principles; in addition, under theological principles, Muslims may not be judged by non-Muslim Judges. This question paradoxically constitutes an incentive for Iran to consider ratification of the Statute. So far, Iran has signed but not ratified the Statute. Studies are under way with a view to presenting the Statute to Parliament for ratification. However, problems of conflict between some provisions of the Statute and the principles of Shari’a law may arise if the Statute is ratified.
1 For example, while, in its listing of the States Parties to the Statute, the Coalition for the ICC utilizes the UN General Assembly Groupings, it also provides another list, which is based on the previous list, but which it has ‘slightly modified’, by placing together some Western Asian and North African countries in the ‘North Africa/Middle East’ grouping on the one hand, and by placing the rest of Asian countries in ‘Asia/Pacific Islands’. As a result, two of Iran's close neighbours, Afghanistan and Tajikistan, with which Iran shares the same language (Persian) and have a common historical heritage, end up in the Asia/Pacific Islands group, while Iran is grouped with countries such as Morocco and Algeria, which are located in the north-west of Africa; this is as logical as keeping, for example, Austria and Switzerland in the Western European and Other States group, while placing, say, Germany and Belgium in the Latin-American and Caribbean States group; see http://www.iccnow.org/countryinfo/RATIFICATIONSbyRegion.pdf (visited 15 April 2005).
2 Note on translations from Persian into English: the author has noted that, at times, the various translations of the Constitution of the Islamic Republic of Iran from Persian into English differed under both a secular and religious approaches. Therefore, the religious terms used in the Constitution appear as such—not translated—in this paper, accompanied by the author's own explanations. For a comparative approach, see the following useful translations: http://www.iranologyfo.com/low-e01.htm; http://www.oefre.unibe.ch/law/icl/ir00000__html (visited 15 April 2005) and http://www.salamiran.org/IranInfo/State/Constitution/ (visited 15 April 2005). Furthermore, the author refers to a number of articles that can be found in a book which exists only in Persian; therefore, quotations from this book are the author's own translation.
3 Article 12 of the Constitution. It should also be noted that Art. 13 of the Constitution provides that Zoroastrian, Jewish and Christian Iranians shall be the only recognized minorities of the country, while Art. 64 of the Constitution provides that of the 270 deputies of the Islamic Consultative Assembly, the Zoroastrians and Jews shall have one representative each, Assyrian and Chaldean Christians collectively shall have one representative, and the Armenian Christians of the south and the north shall each have one representative.
4 Primarily legal, the Shari’a constitutes in fact a whole, encompassing the religious, political, social, domestic and private life. Traditionally, it is made of two sets of regulations: worship/rituals and legal/political.
5 Article 5 of the Constitution.
6 The exact wording in the Constitution is Velayat-e Faqih, Velayat-e Amr va Emamat-e Ommat; see Art. 57 of the Constitution.
7 Article 2 of the Constitution.
8 Articles 4, 72, 91 and 94 of the Constitution. Of interest to this study is the composition of the Guardian Council: of its 12 members, six Faqihs are selected by the Leadership, while the other six members are jurists who are elected by the Majles, after having been nominated, from among Muslim jurists, by the Head of the Judicial Power (Art. 91 of the Constitution).
9 Chapter IX of the Constitution (Arts 113–151) addresses the Executive Power, Arts 113–115.
10 Articles 134 and 124 of the Constitution.
11 Article 125 of the Constitution.
12 Chapter VI of the Constitution (Arts 62–99) addresses the Legislative Power.
13 Chapter XI of the Constitution (Arts 156–174) addresses the Judicial Power.
14 Chapter VIII of the Constitution (Arts 107–112) addresses the Leader or Leadership Council. Elected by the Majles-e Khobregan (i.e. Assembly of Experts), the Leader is a person whose most essential qualification is in feqh (i.e. science of the Shari’a) and politics, followed by other requirements, such as justice and piety necessary for the leadership of the Islamic Ommat (Art. 109 of the Constitution). Apart from its religious qualification, what makes the Leadership special is its position and powers. Indeed, not only the President is the highest official only after the Leadership, but he is also responsible for implementing the Constitution and acting as the Head of the Executive Power, except in matters directly concerned with the Leadership (Arts 60 and 113 of the Constitution). Thus, the Leadership is responsible for, inter alia, delineating the general policies of the IRI, assuming supreme command of Armed Forces, or declaring war and peace (Art. 110 of the Constitution).
15 Article 110 of the Constitution.
16 Articles 160 and 157 of the Constitution.
17 The former is responsible for matters concerning the relationship between the Judicial Power and the Legislative and Executive powers, while he may also be delegated financial, administrative and human resources-related functions (excluding Judges): Art. 160 of the Constitution. As for the Head of the Judicial Power, he is a Mojtahed (i.e. doctor and expert in theology, who is qualified to solve legal or theological questions), responsible for establishing the structure of the judiciary, drafting judicial bills appropriate for the Islamic Republic, and the Judges’ employment-related functions, such as appointment and dismissal (Art. 158 of the Constitution).
18 Article 156 of the Constitution. Hodood means ‘borders’; consequently, whoever crosses them is subject to the ‘Had’ (i.e. penalty), which the Shari’a determines in function of each crime.
19 Article 167 of the Constitution.
20 Article 170 of the Constitution. Both press and political offences can be prosecuted, the latter being determined by law, in accordance with Islamic criteria and principles.
21 See J. Zarif, Speech, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian) (‘Zarif’), 17.
22 See, e.g. Statement by Dr Saeid Mirzaei Yengejeh, Representative of the Islamic Republic of Iran before the Sixth Committee on Agenda Item 153 Establishment of an International Criminal Court, New York, 22 October 1998; Statement by Dr Saeid Mirzaei Yengejeh, Representative of the Islamic Republic of Iran before the Sixth Committee on Agenda Item 153 Establishment of an International Criminal Court, New York, 20 October 1999 (‘Yengejeh Statement of 20 October 1999’); Statement by HE Mr Seyed Mohammad Hadi Nejad Hosseinian, Ambassador and Permanent Representative of the Islamic Republic of Iran to the United Nations Before the fifty fourth session of the General Assembly on Agenda Item: 154 United Nations Decade of International Law, New York, 17 November 1999 (‘Nejad Hosseinian’); Statement by Dr Saeid Mirzaei Yengejeh, Representative of the Islamic Republic of Iran before the Sixth Committee on Agenda Item 164 Establishment of the International Criminal Court, New York, 12 November 2001 (‘Yengejeh Statement of 12 November 2001’), available online at: http://www.iccnow.org/countryinfo/northafricamiddleeast/iran.html (visited 25 April 2005).
23 Statement by HEM Javad Zarif, Deputy Foreign Minister of the Islamic Republic of Iran, 17 June 1998, available online at: http://www.un.org/icc/speeches/617ira.htm (visited 25 April 2005) (‘Zarif Satement’).
24 See Ayatollah Mohammad Yazdi, ‘Speech’, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian) (‘Yazdi’), 13.
25 Concerning the IRI's perception of the pro-Saddam Hussein position of the Security Council with regard to both the crime of aggression and war crimes during the Iran–Iraq war, see Zarif, supra note 21, 18–19.
26 Between 1984 and 1988, nine reports from specialists dispatched by the Secretary-General to investigate allegations concerning the use of chemical weapons were issued, all of them confirming such allegations. During the same period, the Security Council issued a number of resolutions deploring the use of such weapons.
27 Perhaps what summarizes most appropriately the above is the following finding of Charles Duelfer: ‘Senior Iraqis have said that it was their firm conviction that the use of ballistic missiles and chemical munitions saved them in the war against Iran. Missiles allowed them to hit Iranian cities and chemical munitions (101,000 used) countered the Iranian "human wave" attacks’, Comprehensive Report of the Special Advisor to the DCI on Iraq's WMD, 30 September 2004, Volume II of III, 81–91, available online at: http://www.cia.gov/cia/reports/iraq__wmd__2004/ (visited 25 April 2005).
28 See Zarif, supra note 21, 19; and Seyyed Ahmad Mir Hejazi, ‘Ghavanin-e Jazayi-e Jomhoori-e Eslami va Asasname Divan-e Keyfari-e Beynolmelali’, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian) (‘Mir Hejazi’), 340.
29 Further Report of the Secretary-General on the Implementation of Security Council Resolution 598 (1987), S/23273, 9 December 1991.
30 Even if these charges were to be brought later during the trial, the fact that they were not brought up during the preliminary hearing has, in and of itself, symbolic value. Iran's deep frustration acquires an even more blatant dimension when one recalls that among the seven charges read out to Saddam Hussein, at least one related to events directly linked to the Iran–Iraq war. Indeed, the charge of using mustard gas and the nerve agent Tabun against Iraqi Kurds in Halabja in 1988 is in fact about an act that occurred during the Iran–Iraq war, where Iraq's Kurdish combatants were accused by Baghdad of providing material and intelligence support to the troops of the IRI in that Kurdish region of Iraq. But Halabja itself occurred at a time where the Anfal campaign began to unfold in 1988, the last year of the Iran–Iraq war. This campaign, which consisted of the displacement of over 100,000 Iraqi Kurds through massive use of chemical weapons by Iraq, was itself another of the seven charges brought against Saddam Hussein. (It is also important to mention the charges regarding the repression of the Iraqi Shiite Arabs, who were continuously called upon by Ayatollah Khomeyni to overthrow Iraq's Ba’thist secular Republic.) In a broader context, chronologically, the chemical weapons used against Iraqi Kurds had been already tested successfully against the Iranians from 1984 to 1988. Notwithstanding this, no mention was made of the Iranian victims of that armed conflict's chemical conflagration.
31 This is reflected in the 1999 statement of the Permanent Representative of the IRI before the Fifty Fourth Session of the General Assembly, indicating that ‘it is crystal clear that in a well-organized world system based on the rule of law, decentralized reaction to possible cases of violation of norms and principles of international law cannot be permissible. ... Obviously, the very nature of unilateral measures of a punitive character, which has unfortunately been on the rise in recent years, is detrimental to the cause of promotion of and respect for the principles of international law’, Nejad Hosseinian, supra note 22. See also Seyyed Sadegh Kharrazi, ‘Speech’, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian), 4.
32 Zarif Statement, supra note 23.
33 Ibid.
34 Yengejeh Statement of 20 October 1999, supra note 22 and Yengejeh Statement of 12 November 2001, supra note 22.
35 Although the wording of its Deputy Foreign Minister on ‘situations where domestic trial procedures are ineffective or unavailable’ did not include the word ‘unwilling’; Zarif Statement, supra note 23.
36 Es-haag Alehabib, ‘Divan-e Keyfari-e Beynolmelali dar yek negah: zarooratha va negaraniha’, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian) (‘Alehabib’), 358.
37 Mir Hejazi, supra note 28, 342.
38 Alehabib, supra note 28, 360–361.
39 Zarif, supra note 21, 19.
40 Ibid.
41 Alehabib, supra note 36, 362; and Mostafa A’layi, ‘Divan-e Keyfari-e Beynolmelali, Hoghough-e Bashar va Barrasi-e Mas’aleye Elhagh’, in Es-haag Alehabib, Divan-e Keyfari-e Beynolmelali va Jomhoori-e Eslami-e Iran (Teheran: Institute for Political and International Studies, Ministry of Foreign Affairs, 2000, available only in Persian) (‘A’layi’), 403.
42 Alehabib, supra note 36, 362.
43 Ibid.
44 Ibid.; and A’layi, supra note 41, 405.
45 A’layi, supra note 41, at 399 and 408.
46 Ibid., 408–409.
47 Hejazi, supra note 28, 339.
48 Alehabib, supra note 36, 358.
49 Ibid., 359.
50 In this regard, it is noteworthy that, of the 97 States Parties to the Statute in December 2004, 17 were members of the OIC, with the following geographic representations: one from the Eastern European States group—Albania; one from the Latin-American and Caribbean States group—Guyana; three from the Asian Sates group—Afghanistan, Hashemite Kingdom of Jordan, Tajikistan; and 12 from the African States group—Benin, Burkina-Faso, Djibouti, Gabon, Gambia, Guinea, Mali, Federal Republic of Nigeria, Senegal, Sierra Leone and Uganda. Finally, one could also add Bosnia and Herzegovina and the Central African Republic, which have an observer status in the OIC. In addition, in these 17 countries, Muslims constituted the minority of the population in four States (Benin, Gabon, Guyana and Uganda); half of the population in two States (Burkina-Faso and Nigeria); and the majority of the population in the other 11 States. For more information, see http://www.oic-oci.org/ (visited 25 April 2005).
51 Articles 125 and 77 of the Constitution.
52 Article 94 of the Constitution.
53 Article 112 of the Constitution.
54 Yengejeh Statement of 20 October 1999, supra note 22.
55 Statement by HE Mr Mohammad H. Fadaifard, Ambassador and Chargé d’Affaires of the Permanent Mission of the Islamic Republic of Iran before the Security Council on the Situation in Bosnia and Herzegovina on 10 July 2002, available online at: http://www.iccnow.org/countryinfo/northafricamiddleeast/iran.html (visited 25 April 2005).
56 See Yazdi, supra note 24, 11.
57 Ibid., 12–13.
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