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Hassan Farshchian

To examine the prohibition or permission of torture in Iranian laws, considering that the rights in Iran are derived from Islamic jurisprudence, it is appropriate to first review the ruling of torture in Islamic jurisprudence and Sharia law. During the time of the emergence of Islam and even before that, torture existed in society and many followers of new religions were tortured by their contemporaries to the point of death. The torture of Jesus Christ and his disciples and the torture of believers in the Prophet of Islam are prominent examples of torture in ancient times. However, despite the documentation of these tortures in the history of religions, torture has not been studied as a separate chapter in ancient religious sources, as it was carried out in other forms and frameworks. Therefore, we will first examine the “ruling of torture in Islamic jurisprudence, considering its different motivations.” Then, in the second section, we will discuss “the prohibition of torture in the written laws of Iran.”

A legal examination of torture considering its various motivations.

Given that torture has been practiced for a long time, in different forms and frameworks and with various motivations, some Arabic words such as “torture” (causing pain and suffering) and “harm” (harassing and tormenting) have become a new chapter in Islamic jurisprudence discussions. Then, the rules related to torture were discussed in various chapters of jurisprudence. For example, in books such as Wasa’il al-Shi’a, the topic of torture has been discussed in various chapters with titles such as “the prohibition of unjustly hitting someone”, “the prohibition of unjustly hitting a Muslim”, “confession through torture and harassment” and so on.

The dispersion of resources and topics of discussion on torture in jurisprudence is a result of the neglect of the messengers, scholars, and interpreters of the first religion towards this phenomenon. As we will see in the following lines, the Sharia showed the greatest sensitivity towards instances of torture. In other words, the Sharia’s confrontation and struggle was against the manifestations of torture, which had taken place under different names and titles in the customary institutions of that era and were considered permissible as a customary tradition. The tortures of that time were defined under titles such as “retribution,” “revenge,” “retribution,” “punishment,” and so on. For this reason, in order to examine the Islamic jurisprudential view on torture, attention must be paid to the instances of its application and the Islamic opinion on those matters must be studied.

It seems that torture can be carried out for one of the following five reasons in ancient times and in our era: “torture for confession”, “torture for punishment”, “torture for intimidation and coercion to perform an action”, “discriminatory torture” and “torture for revenge”.

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 1984) defines torture as follows: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The above article, in defining torture, mentions four types of torture explicitly but does not mention the fifth type. It seems that the fifth type of torture (retributive) can be placed under “punitive torture” considering that in contemporary law, punishments are no longer personal and victims do not seek revenge against criminals, but rather punishments serve as a form of discipline and “punishment” is also the duty of governments. Therefore, “retributive torture” can be placed under “punitive torture”.

In the following, we will examine the prohibition or permissibility of torture in relation to the above five motivations from a jurisprudential perspective.

Torture for confession.

Torture for confession has been tempting for both religious scholars and lawyers, as well as for statesmen and politicians. Even among some opponents of torture, the ban on torture for the purpose of confession has been doubted and questioned. A famous hypothetical example is the danger to the lives of citizens and the knowledge of someone who does not provide their information to relevant institutions. Here we are faced with two scenarios: either by creating pressure and torture, we obtain information from this person and prevent a disaster, or by adhering to the principle of banning torture, we release them and witness the tragedy and massacre.

This hypothetical example was brought up during the discussion and approval of the prohibition of torture in the constitutional law (Article 38) in the final review of the Iranian Islamic Republic’s constitution. In that session, Ayatollah Meshkini challenged this proposed article with the following question: “Torture in any form for the purpose of obtaining a confession or information is prohibited. We believe this is an un-Islamic and inhumane act and we vote against it. However, there are certain issues that need to be considered, such as the possibility of a few prominent figures being kidnapped and there being two or three individuals who we know have information about the kidnappers. In such cases, is torture prohibited if they are hit with a few slaps?”

The vice president of the parliament, Ayatollah Beheshti responded: “There are ways to obtain information without which they can still obtain that information.” Ayatollah Meshkini argued that: “If they torture him a few times, he will reveal the information; for example, in the incident of Professor Motahari, he knows someone who is most likely the assailant, but if they tell him to say it, he will say no.” Ayatollah Montazeri, in the position of the head of the parliament, firmly opposed the use of torture and stated: “The harm of this action is greater than its benefit.”

Ayatollah Meshkini continued the challenge: “Is the issue of eliminating corruption not true, considering that it has also existed in the past?” And Ayatollah Beheshti responded again: “Mr. Meshkini, please pay attention that the issue is about opening a door. As soon as this door is opened and they want to hit someone accused of the greatest crimes with a hammer, rest assured that it will lead to burning everyone. So this door must be closed; meaning that even if ten well-known individuals are kidnapped and this door is not opened, society will be healthier.”

Ayatollah Montazeri expressed the final answer with key phrases: “It is better for a sinner to be free than for an innocent person to be imprisoned.”

“By invalidating confessions obtained through torture, jurisprudence takes a significant step towards preventing such forms of torture. In jurisprudence, the first condition for a valid confession, apart from general conditions, is having the “choice” to confess, meaning it cannot be obtained through “coercion and force”… Any form of coercion for confession undermines its validity and legitimacy.”

Of course, supporters of “confession-based torture” did not remain idle and found an alternative solution. They renamed torture as “punishment” and gave a legitimate gloss to the torture of the accused. Ayatollah Montazeri emphasized that “punishment in Islam is only for proven and definite crimes, meaning a crime that has been proven in a fair court, not for proving a crime or obtaining confession.” (3).

It is narrated from the first Imam of the Shiites that if someone confesses to theft after being tortured and beaten, the punishment of theft will not be applied to them. (4) A similar hadith has also been narrated from Imam Sadiq. (5) In another hadith, Abu Bakhtari narrates from Imam Sadiq, who in turn narrates from Imam Ali: “If someone confesses under duress (being stripped, beaten, threatened, or imprisoned), there is no punishment for them.” (6).

Ayatollah Montazeri concludes, with references to Shia and Sunni sources, that torture, stripping, beating, and chaining of suspects is forbidden in Islam. “Punishing and torturing a suspect based on mere possibility is problematic, and obtaining a confession under torture is even more problematic… Therefore, it is not permissible for the leader of the community and judges to rely on confessions and statements of suspects obtained through imprisonment, torture, fear, or deceit. Such confessions are worthless in Islamic courts.” (7) “Without a doubt, a confession obtained through torture and pressure has no validity in Islamic courts.” (8) He reminds us of one of his intellectual differences with Ayatollah Khomeini on this matter: “But my disagreement with him lies in the fact that I do not consider confessions obtained under prison and psychological and physical pressure to be valid according to Islamic law.” (9).

Ayatollah Montazeri is gathering evidence that firstly, torture and harassment of the accused named Ta’zir is not permissible and is considered oppression, and secondly, according to Islamic law, confessions obtained through torture are not valid or valuable. (10)

In this regard, some scholars believe that even if the survival of Islam requires torturing others, it does not justify the use of torture. If it is said that the survival of Islam depends on this matter, the response is: Which Islam?! The Islam that with these conditions, including exempting and purifying individuals from torture, which the ruler has a bad opinion of and tortures them, wants to gain strength, will not be the desired Islam of the Prophet (PBUH).

2- Torture for punishment and retribution.

Another motivation for torture is punishment and retribution. There are many accounts of the prohibition of beating and torturing people that have been introduced.

In narrations, the person who strikes someone who has not struck them, or kills someone who has not committed murder, is called “the most rebellious servant” of God. (12) Jabir narrates from the sixth Imam: “If someone strikes another person with a whip, God will also strike them with whips from the fire.” (13).

In many narrations, torturing and inflicting pain on people is considered undesirable and for that, divine punishment has been promised. It is narrated from the Prophet of Islam: “Whoever tortures people, God will torture him”, “Those who torture people in this world, will be tortured in the afterlife.” (14) Imam Reza narrates from the Prophet that “God curses whoever kills someone other than their murderer or strikes someone other than their attacker.” (15).

The Prophet of Islam emphasized that “the most hated person in the eyes of God is someone who unjustly exposes a Muslim (exposes them to torture).” (16) Although in this last narration, the talk is about the ugliness of torturing a “Muslim”, without a doubt, the intention is the absolute ugliness of torture, because firstly, other narrations forbid the harming and torturing of any human being, and secondly, since the audience of the Prophet’s words were Muslims, he sometimes addresses them with this same description (being Muslim) to remind them that they have become Muslims and should be in harmony and submission to the commands of the truth of the world.

If it is noticed in religious teachings, the harassment and harm of others is considered ugly and undesirable. Not only harming humans, but also harming animals is considered unethical and religious people are forbidden from it. Instructions such as prohibiting pulling the legs of sheep during slaughter, or disliking slaughter with a dull knife that causes the animal to suffer and die painfully, prohibiting skinning an animal while its body is still warm, and waiting for the complete departure of its soul (17) and so on, show that Islam considers harassment and torture even towards ugly animals.

3- Torture for intimidation and coercion to perform an action.

Forcing others to do something is another common motivation for torture. During his journey to dinner, the second caliph passed by a place where some people were being poured with oil and left under the scorching sun to be tortured. He asked who they were and was told that they had not paid their taxes and were being tortured until they paid. The caliph ordered for them to be released and said, “I have heard from the Prophet: ‘Do not torture people, for surely those who torture people in this world will be tortured by God on the Day of Judgment.'” (18).

One of the agents of Caliph Omar ibn Abdulaziz wrote to him saying that some people do not pay their taxes unless they are pressured and punished. The Caliph replied, “I am amazed that you want me to allow the torture of people. It seems that I will be a shield for you against the punishment of God, and my satisfaction will save you from the punishment of God!” Abu Faras says that the Caliph gave a sermon to the people saying, “O people! I did not send agents to beat you and take your belongings. Rather, I sent them to teach you your religion.” (19).

One of the tempting reasons for torture is a case where the witness refrains from giving their testimony and prevents the truth from being proven in court. In this case, some have the tendency to use torture to force such individuals to give their testimony.

During the review and approval of the ban on torture in the constitutional law (Article 38), in the final discussions of the Iranian Islamic Republic’s constitution, Ayatollah Sobhani stated regarding the ban on torture in relation to “forcing someone to testify”: “If the intention of the phrase ‘forcing someone to testify’ is to tolerate testifying [as a witness to a crime], then it is not obligatory to tolerate testifying. However, if the intention is to give testimony in court, then it is obligatory to do so, as the Quran says ‘Do not conceal testimony…’ and also ‘Do not refuse to testify when called upon…’ These verses indicate that giving testimony in court is obligatory, and the Islamic ruler has the right to compel a witness to testify, as the witness may be afraid and refuse to testify. In this case, it is necessary for the ruler to ensure their safety and compel them to testify.”

Ayatollah Beheshti was logically in favor of forcing the Shah to appear in court, but believed that only his presence could be forced, not his testimony: “Forcing someone to appear in one place is one issue, and forcing them to give testimony is another issue; therefore, no one can be forced, but they can only be asked to be present in court and if they have testimony, they can speak.” In response to the question posed by Sabhani, “If he was a witness, does that mean he has already borne the burden of testimony and the ruler cannot force him?”, Beheshti firmly answers: “No, there is no such thing in jurisprudence.” (20).

4- . (This text is incomplete and cannot be translated.)

Torture of discrimination.

Sometimes torture is only carried out because of the humiliation of others who belong to a certain race, religion, or tribe. In this case, the torturer sees themselves as superior to those they believe are inferior, and therefore deserving of punishment and harm. Islam has always opposed any form of discrimination. Its call for global unity has helped Muslims avoid discriminatory practices. The Quran has repeatedly emphasized the equality of all humans in various ways and through different methods to prevent a discriminatory mindset. In some verses, it reminds us that “God has created you from a single soul.” (21) In others, it states that “God has created you from a single source.” (22) And at times, it explains that “O people! We have created you from a male and a female, and made you into nations and tribes so that you may know one another.” (23) The Quran declares that “the diversity of languages and colors among humans are signs and symbols of God” (24) and not

The Prophet of Islam insisted on making his followers understand and accept that “Arabs are not superior to non-Arabs, and non-Arabs are not superior to Arabs. Whites are not superior to blacks, and blacks are not superior to whites, except through piety. Human beings are all descendants of Adam, who was created from dust.” (25) The Prophet considered people as “the teeth of a comb,” all equal in value. (26) He sought to establish friendly and compassionate relationships among people and explained that “humans are like one body, when one part of it suffers, the rest of the body experiences fever and sleeplessness, and they all share in the pain and suffering.” (27).

Saadi narrates the same story in the Gulistan with the famous verse “All human beings are members of one body.”

The first Imam of the Shiites, in a letter to his appointed governor, Malik al-Ashtar, while ordering him to be kind and loving towards the subjects, writes: “The subjects are either your fellow believers or created beings like you.” (28) All of these recommendations are in line with avoiding violence caused by discriminatory attitudes.

5- Torture for revenge.

Islam tried to legalize the customs of Arabs in the field of punishments such as retribution and blood money, in order to turn personal revenge into a legal matter. By legalizing blood money instead of retribution, the goal shifted from revenge to reducing material suffering. Of course, in this regard, positive steps were taken by encouraging forgiveness and promising divine rewards to purify the spirit of revenge.

On the other hand, by prohibiting some common and customary methods of revenge during the time of Islam’s emergence, such as “eye for an eye”, efforts were made to close the path of inhumane torture as much as possible. Imam Ali, after being struck and on the verge of death, advised his family not to seek violence and revenge instead of legal punishment, blows in response to blows. He then added that he had heard from the Prophet of God saying, “Beware of eye for an eye and cutting off others’ limbs, even in the case of dogs.” (29).

“Torture is prohibited in the written laws of Iran.”

In various international regulations and treaties, torture has been explicitly prohibited. At the highest level of these treaties, one can refer to the Universal Declaration of Human Rights, which is considered by many jurists as a binding international covenant and its provisions are based on the credibility of international law. Another treaty has also been concluded in the international arena to prevent torture, known as the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (New York, 1984).

In addition to the prohibition of torture in international regulations and treaties, torture is also prohibited in Iranian domestic law. Some principles of the Constitution of the Islamic Republic of Iran imply this prohibition. However, Article 38 of the Constitution explicitly prohibits any form of torture: “Any form of torture to obtain a confession or information is prohibited. Forcing a person to testify, confess, or take an oath is not allowed, and such testimony, confession, or oath is invalid and unreliable. Violators of this principle will be punished according to the penal code.”

The principle of prohibition of torture can also be found in other domestic laws and regulations. However, these regulations are not complete and final, and especially in terms of definitions and cases, they need to be reviewed, updated, and completed. But they clearly and explicitly reflect the principle of prohibition of torture. Some of these regulations are mentioned below:

“The law of respect for legitimate freedoms and protection of citizens’ rights” (passed by the Islamic Consultative Assembly in 2004) explicitly prohibits any form of torture, while also listing some of the rights of citizens and prohibiting certain forms of torture, harassment, and abuse of suspects. In article nine, it explicitly prohibits any form of torture for the purpose of obtaining a confession or forcing the suspect to do something else: “Any form of torture of the suspect for the purpose of obtaining a confession or forcing them to do something else is prohibited and any confessions obtained in this manner will not have any legal or religious validity.”

According to Article 169 of the Islamic Penal Code (approved in 1392), a confession obtained through torture has no validity or value: “A confession obtained under coercion, force, torture, or mental or physical harassment has no value or credibility, and the court is obligated to conduct a new investigation of the accused.”

Chapter 10 of Book 5 of the Islamic Penal Code (1375) is dedicated to “Offenses and Deterrent Punishments”, specifically focusing on “Offenses by Government Officials and Agents”. In this chapter, the legislator strives to prevent pressure and injustice by government officials towards the people.

Each of the employees and officials of the government, whether judicial or non-judicial, who use physical torture and harassment to force a suspect to confess, in addition to retribution or payment of blood money, will be sentenced to imprisonment for six months to three years, depending on the case. Only the person who has given the order will be sentenced to the aforementioned imprisonment, and if the suspect dies due to torture and harassment, the executor will be sentenced to the punishment of the murderer and the commander will be sentenced to the punishment of the commander of the murder. (Islamic Penal Code of Iran, Book Five: Deterrent Penalties, Chapter Ten: Offenses of Government Officials and Employees, Article 578).

“If any of the government officials imposes a punishment harder than the one that has been sentenced, or imposes a punishment that was not included in the sentence, they will be sentenced to imprisonment for six months to three years. If this action is carried out upon the order of another person, only the one who ordered the punishment will be sentenced, and if this action results in retaliation or blood money, the executor will also be sentenced. If the mentioned action also includes another crime, the punishment for that crime will be carried out accordingly against the executor or the one who ordered it. (Islamic Penal Code, Ta’zirat, Article 579).”

The Executive Regulations of the Organization of Prisons and Correctional and Educational Measures of the Country (approved by the Head of the Judiciary in 2010 with amendments in 2010) while emphasizing the necessity of establishing an Office for the Protection of Prisoners’ Civil Rights, states one of its duties as investigating and pursuing violations of prisoners’ civil rights. Additionally, in this document, it is explicitly prohibited to harass and abuse suspects: “Aggression, insults, using vulgar language, or physical punishment of suspects and convicts, as well as implementing harsh, burdensome, and humiliating punishments in institutions and prisons are completely prohibited. (Article 169).”

Abstract and Conclusion.

In this article, the concept of “prohibition and permission of torture” has been briefly examined from a legal and jurisprudential perspective. As it was observed, torture in any form (physical or psychological) and for any reason is explicitly prohibited in Islam. The Constitution of Iran also rightly prohibits any form of torture. Other ordinary laws and regulations in Iran also clearly indicate the prohibition of torture; although they may need to be revisited and completed, the full implementation of these current laws is a major step towards preventing torture. Without a doubt, the gap between theory and practice and between the text of laws and their implementation is another issue to be discussed.

 

Sources and footnotes:

1- The session of Siam, on the third of Mehr month, 1358 SH, under the leadership of Ayatollah Hossein Ali Montazeri. R.K. Detailed report of the discussions of the parliament on the final review of the Constitution of the Islamic Republic of Iran, volume one, published by the General Office of Cultural Affairs and Public Relations of the Islamic Consultative Assembly, first edition, 1364, Tehran, pages 777 and 778. This view is in line with the opinions of many jurists, R.K. Hosseini Tehrani, Seyyed Mohammad Hossein (Ayatollah), Guardianship of the Jurist in the Islamic Government, published by the Institute of Translation and Publication of Islamic Sciences and Teachings, first edition, 1365, Tehran, volume four, lesson forty-eight, page 225: “If it is questioned: If torture and punishment of individuals for the purpose of discovering a crime and investigating issues related

2- R.K. Interview with Seyyed Sarajaldin Mirdamadi and Hassan Farshatian, titled “Forced Confessions Have No Validity”, published on Radio Zamaneh website on January 21, 2008.

3- Montazeri, Hossein Ali, Religious Government and Human Rights, Sarrayi Publisher, Winter 1387, Second Edition, Tehran, p. 112.

4- Means, Volume 18, page 498, chapter 7 of the chapters of the punishment for theft, hadith 3.

5- Al-Wasa’il, vol. 18, p. 497, chapter 7 of the chapters of the punishment for theft, hadith 1.

6- The means, vol. 16, p. 111, book of Al-Iqrar, chapter 4, hadith 1. Also, the means, vol. 18, p. 497, chapter 7 of the chapters of the punishment for theft, hadith 2. Also, Montazeri, Hussein Ali (Ayatollah), criticism of oneself “lesson and advice”, online version from their website, p. 82 and 83.

7- Montazeri, Hossein Ali, Studies in the Guardianship of the Jurist and the Jurisprudence of the Islamic State, Volume 2, pp. 380 and 381.

8- Hossein Ali Montazeri, Studies…, Volume 2, p. 378. Also, R. K. Hosseini Tehrani, Seyyed Mohammad Hossein, the same, p. 225.

9- Related to the television broadcast of confessions by Seyed Mehdi Hashemi, R.K. Montazeri, Hossein Ali, self-criticism, p. 68.

10- Hossein Ali, Montazeri, Darasat…, Vol. 2, p. 390.

Hosseini Tehrani, Seyyed Mohammad Hossein, The same, p. 225.

12- Al-Wasa’il, Vol. 19, p. 11, Book of Retribution, Chapters of Retribution for the Soul, Chapter 4: Prohibition of Unjustly Striking, Hadith 1.

13- Means, Volume 19, page 12, book of Qisas (Retribution), chapters of self-retribution, chapter 4: Prohibition of hitting without right, hadith 7.

14- Kharaj Abi Yusuf, 124 and 125, as quoted by Montazeri Hossein Ali, Studies…, vol. 3, p. 506.

Means: “Means, Volume 19, page 11, book of retribution, chapters of retribution in the self, chapter 4: Prohibition of hitting without right, hadith 3.”

Chapter 26: Prohibition of Hitting a Muslim without Right and Disapproval of Bad Manners when Angry, Hadith 1. Means Volume 18, page 336, Chapters of Introduction to Borders and their General Rules.

17- To study about the instructions of the calculator in the matter of slaughter, R.K. Montazeri Hosseinali, in Studies…, Vol. 2, p. 287.

18- Kharaaj Abi Yousef, 124 and 125, quoted from Montazeri Hossein Ali, Studies…, vol. 3, p. 506.

19- Kharaaj Abi Yousef, 199. Montazeri Hossein Ali, Daraasaat…, Vol. 3, p. 506.

Session of Siam, 3rd of Mehr month 1358, R.K. Detailed report of the discussions of the Parliament’s final review of the Q.A.J.A. of Iran, Volume 1, page 779.

21- “…He created you from one soul…” Surah Az-Zumar, verse 6. “…He is the one who created you from one soul…” Surah Al-A’raf, verse 189.

“And He is the one who created you from a single soul…” An’am, verse 98.

“O people, indeed We have created you from male and female and made you into nations and tribes that you may know one another…” Surah Al-Hujurat, verse 13.

“And among His signs is the creation of the heavens and the earth, and the diversity of your languages and your colors. Indeed, in that are signs for those who know. [Surah Ar-Rum, verse 22]”

25- Al-Ghadir, Vol. 6, pp. 187-188.

“People are like the teeth of a comb, equal in their appearance.” From Al-Nahj Al-Balagha, Vol. 4, p. 379, no. 5798.

“Volume 1 of Mizan al-Hikmah, Hadith 1504.”

28- Nahj al-Balagha, Letter 53, Addressed to Malik al-Ashtar.

Bihar al-Anwar, vol. 42, p. 246.