Amnesty International reports this case from Iran:
On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court.
According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death.
Human rights activists have created an on-line petition to save Nazanin’s life. I’ve signed the petition, and I urge all readers to do the same.
Amnesty International points out that the execution would violate Iran’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
However, the AI argument appears to have a significant weakness. When ratifying the CRC, Iran also made the following reservation: “The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.” I have not found information indicating that Iran made any reservation when ratifying the ICCRR, which also bars executions for crimes committed when the perpetrator was under the age of 18.
According to a modern summary of Islamic law:
There is a natural right to self-defense. One may defend oneself from a criminal act that poses an imminent threat to person or property, but only necessary force may be used. An intruder who might be repelled with a stick may not be shot and killed; neither may one pursue an intruder who has retreated and is no longer a threat. Violation of the limits of self-defense is aggression and renders one criminally liable.
Matthew Lippman, Sean McConville & Mordechia Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (Westport, Conn.: Praeger, 1988), p. 56.
The above-quoted scholars appear to be consistent with the view of the nineteenth century Islamic jurist Ulaysh, who “wrote that all jurists have always agreed that Muslims have the right to defend their life and their property.” (Quoted from Khaled El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge Univ. Pr., 2001), pp. 334-35.) El Fadl’s quote is consistent with the practice of many Islamic nations of denying dhimmi (non-Muslims) any right to defend themselves against Muslims, or to possess arms. (See Bat Ye’or’s books for details.) However, the dhimmi exception to self-defense does not appear to be relevant in the Nazanin case.
So I have two starting questions for commenters: For those of you who can read Persian, is there any evidence from the Iranian press, or other media, suggesting that Nazanin was not actually acting in self-defense, or that her use of deadly force was legally excessive?
Second, for readers familiar with Shari’a law, are there any legal precedents suggesting that a female teenager acted by stranger rapists would not possess the ordinary Muslim’s right to self-defense?
Third–and this question is for everyone–are there international law arguments that the Iranian government cannot lawfully abrogate the right to self-defense?
Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5, 1955), art. 2 (2)), and the Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9, art. 31) both recognize a right of self-defense, but of course neither document is applicable to domestic Iranian law.
Are there other international treaties which recognize a right of personal (rather than national) self-defense? Are any of these applicable to Iran?
In addition to positive international law, a defender of Nazanin might also argue from customary international law. Below is a sketch of one such argument, based on my own research. I invite commenters with international law expertise to amplify, correct, and otherwise suggest improvements or flaws in the argument.
1. Even in the absence of positive enactments, humans have certain fundamental rights which no government can violate. (See, e.g, Grotius, Vittorio, Locke, Declaration of Independence).
2. In extreme cases, a government which violates those fundamental rights can be overthrown, and the perpetrators of the rights violation can be punished. A person who denies the previous sentence must necessarily conclude that the Nuremberg and Tokyo war crimes trials were illegal, since, for example, there was no positive law forbidding the genocide at the time the Germans and Japanese perpetrated genocide.
3. Even if ex post facto principles about positive law made it unjust to punish some of the Germans and Japanese, it was still lawful for the Allies (even putting aside issues of national self-defense and treaty obligations towards countries such as Poland) to attempt to interfere with on-going violations of fundamental human rights by the Japanese and Germans.
4. Even if there were no right to interfere or punish, a person in, say 1938, could correctly say “The German and Japanese governments are in violation of international law, because they are violating many fundamental human rights of their subjects, including rights which have always been regarded as fundamental by the vast majority of mankind throughout recorded history.”
5. Self-defense is a fundamental human right, and has been so regarded by the vast majority of mankind throughout recorded history. For example, the right of self-defense is recognized by ancient and modern Jewish law, by the Catholic law which formed the basis of Western law (and which was predicated on the recognization of self-defense rights by ancient Greece, ancient Rome, and the Byzantines), by the great Protestant religious philosophers who shaped the United Kingdom, by the American revolutionaries, and by all the major religions of Asia.
Note: Although some Christians and Buddhists have believed that a truly enlightened person should not engage in self-defense, non-resistance was always presented as a higher moral choice, and there was no suggestion (at least until quite recently in the West), that the government should forbid self-defense.
6. The above litany of sources recognizing a right of personal self-defense is illustrative, rather than exhaustive. (Commenters are invited to supply additional sources, of the type traditionally cited in international law.)
7. The right of self-defense has been recognized by the overwhelming majority of all legal systems throughout human history. The only known exceptions are those which obviously relate to very special circumstances (e.g., prisoners against guards; soldiers against superior officers), or which, by their very nature, are so odious as to shock the conscience (e.g., Japanese peasants forbidden to resist Samurai; tyrannies; slaves; persecuted religious or ethnic groups). The fact that no known legal system has (outside of special cases) ever denied self-defense rights except in circumstances which are self-evidently odious is further proof that customary law has, from time immemorial, recognized a right of self-defense.
8. The parameters of the right to self-defense have varied over time, but, at the very least, they have always included the right of a chaste woman to resist rape by strangers who have no relationship of any sort with the woman or her family. (The historical exceptions to a woman’s right to resist rape are in themselves odious, but they appear to be irrelevant to the Nazanin case.)
9. Deadly force may be used to resist rape, if no lesser force will suffice.
10. The right to resist rape also includes the right to use force to protect a close relative from being raped.
The above statements represent my current understanding, but I welcome clarifications from commenters about circumstances in which the above statements might be untrue–such as legal codes which forbade self-defense, or forbade deadly force as a last resort against a rapist.