The essence of qisas (retributive justice) has long been based on a natural law: “You kill, you are killed; an eye for an eye, and a tooth for a tooth.” This well-known principle existed long before the emergence of Abrahamic religions. Historical stone carvings—including the Code of Hammurabi, which dates back to 1800 BCE and is now housed in the Louvre Museum in France—mention this law. At certain periods in history, the implementation of qisas extended beyond its natural and reasonable bounds, leading to spatial and temporal chaos. At times, the responsibility for retribution fell to the eldest child, sometimes the brother, or even the collective descendants of the victim. When the victim’s heirs lacked the power to carry out retribution, it was delegated to the tribe, tribal leaders, or the king, often prolonging conflicts. Moreover, punishment extended beyond the perpetrator to include their children or even their entire clan. For instance, in retaliation for one murder, the perpetrator’s son might be executed, or two individuals might be killed for one victim. Depending on the victim’s social status, the punishment could escalate, with multiple people or even all the men in a tribe being killed. Such acts of killing often involved severe torture, which itself merits separate analysis.

In Abrahamic religions, particularly Judaism and Islam, qisas took on a new function as a tool to limit revenge and introduce regulations and criteria for its application, leading to significant transformations. However, these religions maintained the notion of “evil countering evil.” In the Old Testament and Judaism, qisas is clearly referenced in the books of Exodus and Leviticus. Many commentators have inferred a rule of compensation and damages from shared principles, suggesting that perpetrators could choose between death or financial compensation. Even beyond the Old Testament, texts like the Talmud emphasize this aspect.

Judaism divides financial compensation for bodily injuries into several categories. If a man injures another, he is responsible for compensating: “for the injury, for the pain, for the healing, for lost time, and for the insult and humiliation accompanying the crime.”

In Christianity, unlike Judaism and Islam, the literal interpretation of qisas has been abandoned in favor of financial compensation. The teachings of Jesus on the Mount of Galilee address this concept:

“You have heard that it was said, ‘An eye for an eye, and a tooth for a tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well.”

Based on this principle, qisas in Christianity has been left to God, with efforts to distance retribution from base impulses of vengeance, delegating it to divine judgment. Financial compensation replaced retributive justice in practical terms.

Islam, through numerous verses in the Quran, elaborates extensively on the principle of qisas and its associated rules. For example, verses 43 to 45 of Surah Al-Ma’idah explicitly mention the establishment of qisas in the Torah:

“We decreed for them therein: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds, [equal] retribution. But if anyone remits retaliation by way of charity, it is an expiation for him.”

In Islam, the foundational changes surrounding qisas can be summarized as follows:

1. The principle of individualizing punishment was established to protect the relatives, descendants, and heirs of the perpetrator.
2. Qisas was defined as the right and authority of the victim’s heirs, granting them the choice between retribution and blood money (diyah).
3. The implementation of qisas was interpreted as a way to end conflict, prevent further crime, and safeguard society, serving as a deterrent.
4. Torture during the execution of qisas was explicitly prohibited.
5. Each verse addressing qisas emphasizes forgiveness and clemency.
6. The principle of communal liability (aqilah) in paying blood money was introduced.
7. Social rank and status were deemphasized in matters of qisas.
8. The concept of proportionality between the crime and its punishment was clearly defined.

Despite these foundational changes, certain challenges persist, including issues related to faith, gender, and the overarching principle of qisas. Differences in religious belief, sectarian identity, and the abundance of narrations and traditions have created a consensus among Islamic jurists regarding qisas laws. However, contemporary laws sometimes deviate from these principles, and in some cases, go beyond acceptable limits, neglecting the temporal and spatial contexts of religion, societal realities, and modern human rights standards.

Montesquieu, in The Spirit of the Laws, aptly analyzes the relationship between religious laws and civil or criminal laws, questioning whether natural defense of any law—even religious law—can supersede reason:

“The grandeur and magnificence of religious laws lie in their focus on spiritual progress and human happiness, while material laws aim to address human needs. Worldly courts should not follow the principles of spiritual courts. No religion should have criminal laws, for religion already possesses internal and spiritual punishments. When religion assumes material criminal laws, it depletes the spirit of its followers and hardens their hearts. Therefore, issues that should be resolved through divine laws must not be settled by human laws, as these two laws differ in their origins, nature, and objectives.”

In Iran’s longstanding penal codes, the incorporation of hudud (fixed punishments) and qisas into the criminal justice system under Article 4 of the Constitution has enabled the application of religious criminal laws.

In the 1991 Islamic Penal Code, qisas was described as a punishment imposed on the perpetrator, emphasizing the necessity of its proportionality to the crime. However, in the 2013 Islamic Penal Code, this definition was altered, and qisas was redefined as the primary punishment for crimes against life, limb, and faculties. The category of qisas for faculties refers to the deprivation of naturally occurring functions in body parts—such as sight, hearing, or intellect—wherein the loss of function, even without physical injury, may warrant qisas. The methods of implementing such punishments, even with medical involvement, have raised questions, often leading to the conversion of qisas into financial compensation for the loss of faculties.

Key Challenges in Qisas

Several unresolved and contentious issues regarding qisas in Iran’s penal laws include:

1. Gender inequality in qisas and diyah (blood money) laws.
2. The execution of juveniles under the age of 18.
3. Discrimination based on religion and belief.
4. Challenges regarding qisas of body parts and its inconsistency with contemporary human rights principles.

Gender Inequality in Qisas and Diyah

The prevailing jurisprudential consensus holds that the diyah for men and women is equal only up to one-third of the assessed amount. Beyond this threshold, or in cases involving the life of the victim, women are entitled to half the diyah of men. This principle is also enshrined in Iran’s Islamic Penal Code. The rationale for this disparity is unclear, with most justifications relying on narrations such as:

“The compensation for a woman is equal to that of a man until it reaches one-third of her diyah.”

Alternative perspectives maintain that the diyah for women is half that of men in all circumstances, attributing the difference to disparities in intellect and economic value between genders. Critics argue that such distinctions are incompatible with contemporary notions of equality and justice, which uphold equal rights for all humans regardless of gender.

In cases where a man is executed for the intentional killing of a woman, the victim’s heirs must pay half the value of a man’s diyah to the perpetrator’s family before the execution can proceed. According to Article 388 of the 2013 Penal Code, the inequality in diyah for men and women is stark. For example, the diyah for severing all five fingers of a woman amounts to 300 million tomans, while severing three fingers of a man results in a diyah of 360 million tomans. This disparity reflects an outdated jurisprudential framework that fails to align with modern human rights values.

The historical precedence of gender disparity in qisas and diyah has contributed to systemic discrimination and the devaluation of women’s lives. Such laws, rooted in outdated interpretations, have often perpetuated violence against women, undermining their dignity and safety.

Discrimination Based on Religion and Sectarian Beliefs

Religious and ethnic minorities in Iran face significant discrimination under both civil and criminal laws. The 1925 General Penal Code and its final amendments in 1973 made no distinction between Muslims and non-Muslims, applying its provisions to all offenders. However, Article 1 of that law, which divided judicial jurisdiction between religious and civil courts, laid the groundwork for discrimination against minorities. In the current legal system, various forms of discrimination against minorities are apparent in both civil and criminal law. For instance, Article 881 of the Civil Code considers “unbelief” as a barrier to inheritance, stating that a non-Muslim cannot inherit from a Muslim, which has often led to abuse and exploitation.

Although the single-article amendment of the “Law on Observing the Personal Status of Non-Shi’a Iranians,” passed on August 1, 1933, allowed non-Shi’a Iranians to act according to their religious traditions in personal matters, and the 1984 judicial unification ruling No. 37 maintained this law’s validity (except in cases of public order), its scope is limited. It applies only to the four constitutionally recognized religious minorities and only in the realm of personal status.

Another form of discrimination pertains to social and educational rights. Many minorities are barred from holding public office or participating in elections. In some cases, university entrance exams require applicants to declare their religion, effectively excluding and marginalizing certain groups.

An example of criminal discrimination against minorities can be found in Paragraph B of Article 224 of the 2013 Islamic Penal Code, which prescribes the death penalty for a non-Muslim man who engages in an illicit relationship with a Muslim woman.

This discrimination is also evident in qisas. Differences in the religion or belief of the perpetrator and the victim affect the right to seek qisas or diyah. For example, if the murderer is a non-Muslim man and the victim is a Muslim woman, her heirs have the right to exact qisas without paying the difference in diyah. This is explicitly stated in Article 382 of the 2013 Penal Code, which amends the previous rule.

Furthermore, under Article 310 of the same code, if a Muslim, dhimmi, musta’min, or mu’ahad commits an offense against a non-Muslim who is not a dhimmi, musta’min, or mu’ahad, the offender is not subject to qisas but only to discretionary punishments. This provision distinguishes between People of the Book (Jews, Christians, and Zoroastrians), non-believers (mushrikeen), and apostates, categorizing them into four groups: dhimmi, mu’ahad, musta’min, and harbi. However, Note 1 of Article 310 attempts to resolve this issue by extending musta’min status to individuals who are Iranian citizens or have legal residency.

Although the concept of mahdoor al-dam (one whose blood is deemed permissible to shed) was removed from the 2013 Penal Code, elements of it persist. Articles 302(a) and 303 of the same code maintain that if the victim (murdered person) has committed a hudud offense warranting the death penalty, the perpetrator is not subject to qisas. This effectively keeps the concept of mahdoor al-dam alive in Iranian criminal law.

Qisas and the Execution of Individuals Under 18

Iran has ratified the Optional Protocol to the Convention on the Rights of the Child (CRC), which, under Article 9 of the Civil Code and following Articles 77 and 125 of the Constitution, carries the weight of domestic law. According to this international convention, anyone under the age of 18 is considered a child, and Article 37 categorically prohibits the execution of children. However, Iran’s criminal laws provide a different definition of maturity (bulugh).

Traditionally, legal scholars have divided children into two categories: those with discernment (mumayyiz) and those without. Article 91 of the 2013 Penal Code adopts a variation of this division, stating that the implementation of hudud and qisas punishments for individuals under 18 depends on their understanding of the nature, prohibition, and gravity of the crime committed. Additionally, the article allows judges to rely on forensic medical opinions or other evidence to assess the child’s maturity and discernment.

In practice, this article has led to subjective interpretations and misuse of the law, with judges inconsistently determining the maturity of offenders under 18. This ambiguity was confirmed in the Iranian Supreme Court’s unification ruling No. 737 on December 2, 2014, which endorsed these interpretations.

Iran’s lawmakers have disregarded the CRC’s definitions and instead retained a traditional approach to criminal responsibility. For example, Article 88 of the 2013 Penal Code acknowledges the criminal liability of children aged 9 to 15, and Article 89 even refers to “punishment” for this group. While detention or imprisonment in juvenile correction centers is framed as rehabilitative, these centers—established under Articles 525–528 of the Criminal Procedure Code and regulated by the 2021 Prisons and Security Measures Regulations—are effectively extensions of the prison system. Their stated goal of rehabilitation through social workers and specialists raises questions about the effectiveness of punitive and rehabilitative measures in Iran’s judicial system.

Article 308 of the Penal Code adds another condition for qisas against minors, stipulating that if the judge doubts the offender’s maturity at the time of the crime, the burden of proving maturity falls on the victim’s heirs. This provision suggests that the law considers maturity, rather than discernment, as the sufficient and necessary condition for holding children criminally responsible, diverging from the CRC’s principle of absolute immunity for children.

Ultimately, the execution of minors under 18—regardless of presumed maturity—is inconsistent with modern criminal justice principles, international human rights standards, and the CRC.

The Controversial Nature of Limb Retaliation in Practice

Limb retaliation (qisas al-athar or non-lethal qisas) is one of the harshest punishments in Iranian criminal law. It rivals, if not surpasses, capital punishment in its cruelty and has become one of the most contentious issues in the Penal Code. This punishment clashes directly with modern humanitarian principles, medical ethics, and international human rights.

Article 393 of the Penal Code specifies general and specific conditions for limb retaliation, including proportionality to the injury caused. This reflects a misapplication of punitive philosophy, where ancient methods are fused with modern concepts, often exploiting medical science in ways that contradict its ethical mandate.

The proportionality requirement in qisas could potentially exclude medical professionals from the process altogether. Physicians are unlikely to participate in such procedures, as doing so would violate their Hippocratic oath to preserve life under all circumstances. Without medical oversight, executions and limb retaliation may devolve into brutal acts carried out by unqualified individuals, undermining any pretense of justice.

Additionally, ethical and medical efforts to mitigate pain during qisas have been met with resistance. A judicial advisory body has declared that anesthetics or pain relief measures during limb retaliation violate the principle of proportionality, reinforcing the punitive and torturous nature of this punishment.

The Penal Code includes mathematically precise guidelines for administering limb retaliation, creating a framework that is not only impractical but also rife with opportunities for arbitrary enforcement and discrimination. For example, if someone inflicts multiple injuries on another, the victim can choose to forgive some injuries, settle others with compensation, and demand qisas for a specific injury. This convoluted approach, outlined in Article 390, reflects the inherent contradictions in the concept of qisas.

Moreover, the Penal Code’s provisions on qisas of limbs, particularly in its insistence on geometrically precise retaliation, highlight the deeply inhumane and archaic nature of this punishment. Rather than serving justice, these laws perpetuate cruelty, humiliation, and a cycle of violence that has no place in a modern legal system.

Footnote:

1. Montesquieu, The Spirit of Laws, Volume II, translated by Ali Akbar Mohtadi, Amir Kabir Publications, 15th Edition, 2023, pp. 812–815.