UNITED
NATIONS
______________________________________________________________________________
Economic and Social Council
Dist. General
E/CN.4/1988/24
25 January 1988
ENGLISH
Original: English/French
_________________________________________________________________
COMMISSION ON HUMAN RIGHTS
Forty-forth
session
Item
12 of the provisional agenda
QUESTION
OF THE VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ANY PART OF THE
WORLD, WITH PARTICULAR REFERENCE TO COLONIAL AND OTHER DEPENDENT COUNTRIES AND
TERRITORIES.
Report on the human rights situation in the Islamic Republic of Iran
by the Special Representative of the Commission, Mr. Reynaldo Galindo Pohl,
pursuant to resolution 1987/55
CONTENTS
I.
INTRODUCTION
…………………………………………………….. 1-4
II.
ACTION TAKEN BY THE SPECIAL REPRESENTATIVE ………... 5-6
III.
INFORMATION RECEIVED BY THE SPECIAL REPRESENTATIVE 7-23
1.
Oral information
………………………………………… 7-11
2.
Written information
……………………………………… 12-23
IV.
CONSIDERATION OF VIEWS OF THE IRANIAN GOVERNMENT 24-71
1.
Compatibility of international law with Islamic law………. 27-59
2.
Replies to Alleged violations of Human Rights…………... 60-71
V.
GENERAL CONSIDERATION AND CONCLUSIONS…………....... 72-82
Annex
I.
INTRODUCTION
1.
By its resolution 1987/55 of 11 March 1987 the
Commission on Human Rights decided to extend the mandate of its Special
Representative, as contained in Commission resolution 1984/54 of 14 March 1984,
for a further year, and requested the Special Representative to present an
interim report on situation of human rights in the Islamic Republic of Iran to
the General Assembly at its forty second session, and a final report to the
Commission at its forty-fourth session.
2.
In compliance with the above mentioned
resolution, the Special Representative presented an interim report to the
General Assembly /43/648), and submits herewith his final report to the
Commission.
3.
The interim report concentrated on items and
issues appropriate to give the General Assembly an overview of the evolution of
human rights and fundamental freedoms in the Islamic Republic of Iran during
the period from September 1986 to October 1987.
The final report updates the situation to January 1988 and considers
some issues that were purposely not discussed in the interim report. The two reports may thus be considered as two
parts of a whole, with the interim report being the first part of the final
report and its indispensable frame of reference.
4.
The final report contains five sections:
Introduction, Action taken by the especial Representative, Recent information,
both oral and written, on alleged violations of human rights in the Islamic
Republic of Iran, Examination of contentions presented by the Government of the
Islamic Republic of Iran on several important issues; and General consideration
and conclusions.
II.
ACTION TAKEN BY THE SPECIAL REPRESENTATIVE
5.
On 4
November 1987, after being informed of the appointment of Mr.
Sirous Nasseri as Ambassador and Permanent Representative of the Islamic
Republic of Iran to the United Nations Office at Geneva the Special Representative addressed
to him a letter which read as follows:
“I have just been informed of
Your Excellency’s appointment as Ambassador and Permanent Representative to the
United Nations at Geneva. While transmitting to you my sincere
congratulations, may I also express the hope that we shall now be in a position
to enhance our contacts and further develop the constructive dialogue upon
which we embarked in Geneva
last July.
As you may know, I plan to
visit New York
between 16 and 27 November
1987 in order to present my interim report to the General
Assembly. I also plan to visit Geneva between 11 and 15 January 1998, in
connection with the preparation of my report to the Commission on Human
Rights. I do hope that, on the occasion
of these visits a meeting may be arranged between us in order to further
clarify our respective views.”
6. On 20 January 1988, after having conducted
a series of informal hearings in the course which 11 persons who claimed to
have first-hand knowledge and experience of various aspects of the human rights
situation in the Islamic Republic of Iran described to him their experience,
the Special Representative addressed a letter to the Ambassador of the Islamic
Republic of Iran communicating to him the summary of oral and written
information reflected in Chapter II below and in the annex to this report. The letter read as follows:
“As
you may know, during my visit to Geneva from 11 to 15 January 1988 I conducted,
in the framework of my mandate under Commission on Human Rights resolution
1987/55 a series of informal hearings with eleven persons who claimed to have
firsthand knowledge and experience of various aspects of the human rights
situation in the Islamic Republic of Iran.
A summary of the allegations made in the course of these hearings is
enclosed herewith for your information.
A summary of allegations,
which were contained in documents provided to me in recent months by various
organizations and bodies concerned, is also enclosed herewith. I would greatly appreciate receiving any
information or comments that Your Excellency’s Government may wish to provide
with regard to these allegations.
I would like to seize this
opportunity to express my sincere hoe that the constructive dialogue upon which
we embarked last year will continue and further develop in the future.”
III.
INFORMATION RECEIVED BY THE SPECIAL REPRESENTATIVE
1. Oral information
7. On 12, 14 and 15 January 1988, the Special
Representative conducted a series of informal hearings in the course of which
11 persons who claimed to have first-hand knowledge and experience of various
aspects of the human rights situation in the Islamic Republic of Iran described
their experience. Ten of the persons
received by the Special Representative were followers of the Baha’i faith and
one person described himself as not affiliated with any political or religious
movement, but a supporter of the “National Council of resistance of Iran”. Of the followers of the Baha’i faith, three
indicated that their name could be mentioned in the report. They were Mr. Etemadi, Mr. Fereydoun Somali
and Mr. Abdul Tebyani. The person who
described himself as not affiliated to any movement was Mr. Fereydoun Guiliani.
8. Mr. Guilani worked in the editorial
board of the Persian language newspaper Keyhan until three months after the
coming to power of the Islamic Government and is also a poet and author. He spent two years, from 1981 until 1983, in
the Evin prison in Tehran
for alleged anti-Islamic activity and for publishing articles and poems hostile
to the Government. He described in
detail conditions prevailing in that prison: overcrowding, insufficiency of
food, inadequacy of hygienic conditions and medical treatment, and, above all,
torture and ill-treatment of detainees.
According to Mr. Guilani guards in Evin prison tortured him for three months,
under the guise of inflicting religious punishment, or “Taazir”. He described in detail the torture, which he
was subjected. While he was blindfolded
up to seven tied him to a “Taazir bench” and beat the soles of his feet –
resulting in extremely painful and swollen feet. Mr. Guilani described his trial. It took place before a religious judge, named
Haji Mohasheni, with a prosecutor and a guard also attending. It lasted for only a few minutes, during with
36 charges were read out. He had no
attorney and had only a few minutes to defend him. The verdict was not announced immediately,
and he found out later that he had been sentenced to three years’
imprisonment. After his release from
prison he resumed his writing and was consequently rearrested for six months,
for having written articles describing the contitions in Evin prison. The publication of books he wrote after his
second release was prevented by censorship.
9.
the followers of the Baha’i faith who appeared before
the Special Representative described their experience and that of their family
members and friends. Most of them spent
periods of various durations in prison and some had members of their families
executed. All of them had allegedly been
subjected o harassment and discriminatory measures, such as denial of
education, dismissal from jobs, confiscation of property, extreme economic
hardship and brutal searches and arrests.
Those of them who had been imprisoned invariably described the
conditions in prison as extremely harsh.
They also described the physical and psychological torture to which they
were subjected. The latter sort of
torture included threats of execution and of sexual abuse.
10.
One person described the case of an elderly woman, Mrs.
Sharghieh Imanian, with whom she shared a cell, who had allegedly been whipped
a hundred times on her feet and, as a result, had deep cuts and was
bleeding. The prison authorities
nevertheless denied that woman permission to see a doctor and put her into
solitary confinement for three months without giving her any treatment. The same person was also shown the body of
Mr. Markazi, a member of the Baha’i Council of Iran who was executed on 23 September 1984. his ribs and most of his bones were allegedly
broken and his body was severely wounded.
11. Mr., Fereydoun Somali described an
incident at the end of 1984 in which a fire broke in a factory in which he and
30 other Baha’is were employed. The fire
was allegedly started deliberately, as the doors of the factory were locked
from the outside. Consequently, Mr.
Somali was severely burnt and had one eye seriously injured. Several months later, following six months of
hospitalization and surgical operations his eye condition required an urgent
operation for a cornea transplant. But
on the eve of the operation the hospital informed him that the office of the
Islamic Committee had no authorized his surgery, stating that an eye of a
Moslem could not be given to a Baha’i, and that he had to find an eye from
another Baha’i for his transplant. Mr.
Somali presented a photocopy document originally written in Persian, with its
English translation, signed by an Islamic committee, stating that “following
our telephone conversation, since Mr. Fereydoun Shomali has personally
confessed his connection with the Zionist Baha’i faction, the cornea graft is
not to be performed for religious reasons.”
2.
Written information
12. Subsequently to the completion of his
interim report to the General Assembly (A/42/648) the Special Representative
received written information contained in various documents, reports and
letters, which referred in particular to alleged violations of the right to
life, the right to freedom from torture or cruel, inhuman or degrading
treatment or punishment and the right to liberty an security of person, as well
as information concerning the economic situation of followers of the Baha’i
faith and the treatment of Kurdish civilians.
Information
concerning the right to life
13. In November 1987 the special
Representative received a list published by the People’s Mojahedin Organization
of Iran containing names and particulars of 14,028 persons who were allegedly
killed by Iranian government agents during the years 1981-1987. The list contained 2,000 names of persons
that had not been previously published.
Out of that list the special Representative submitted to the Government
of the Islamic Republic of Iran 60 names of persons who were allegedly executed
or tortured to death during the years 1986-1987. The special Representative requested the
Government to provide him with any information or comments regarding those
alleged cases of execution and death.
The names and particulars included in that list are reproduced in the
annex to this report.
14. In addition, it was alleged that a
prisoner named Hossein Sabbaqi, was tortured to death in the prison of
Babolsar, north of Iran,
in September 1987.
15. The People’s Mojahedin Organization
alleged on 27 November 1987
that 36 persons, described as political prisoners, had been secretly executed
in recent months. According to that source
a group of 26 persons were executed as follows: Khalil Ramezni, Cyrus
Abbasvand, Fereydoun Aqdoust, Farchid Nemati, Seyed Mohammad Heydari Ghahi,
Soulmz Chahidi Affan, Mohammad Ali Abranki, Ardechir Abtari Rad, Amir Hossein
Naderi, Qassem Khalidi, Mamoud Zakpur, Anouchirvan Ebrahimi, Alizadeh, Moloud
Rahmani, Hassan-Mordi, Alireza Djahani, Massoud Ansari, Alireza Chahraki
Farahani, Madjid Parzira, Omid Reza Qomachi, Massoumeh Seddiq, Karim haj Ali
Mohammadi, Mohammad Firouzi, Rahmat Tchaman Ara, Mansour Qomachi Langueroudi,
Qolamreza Separqami, Ali Taher Djouyan, Sheyla Mokhatarzdeh, Madjid Safai,
Hossein Moafi, Seyed Djalal Chafii, Baqer Chekofteh Gohari, Alireza Djamali,
Kioumars Chahi, Maziar Lotfi and Fereydoun Hassan-Dolat.
16. It was further alleged that two followers
of the Baha’i faith, Ardishihr Akhtari and Amir Husayn Nadiri, were executed on
28 September 1987
in Tehran.
Information
concerning the right to freedom from torture or cruel, inhuman or degrading
treatment or punishment
17. Allegations regarding the conditions
prevailing in Iranian prisons continued to be communicated to the Special
Representative. Several communications
were received from families of political prisoners in Iran, alleging
ill-treatment and torture of such prisoners as well as extremely poor
conditions in prison in which they are held.
According to a communication from several mothers and wives of Iranian
political prisoners, received in October 1987, Iranian Government agents harassed,
ill-treated and detained political prisoners’ relatives who demonstrated in
front of the United Nations Office in Tehran
on 10 September 1987,
on the eve of the visit to Tehran
by the United Nations Secretary-General.
Many of the participants in that demonstration were allegedly sent to
three prisons and were ill-treated. Some
were released after several days while the whereabouts of others were still
unknown.
Information
concerning the right to liberty and security of person
18. In October 1987 the Baha’i International
Community transmitted two lists of persons detained in Iranian prisons and
believed to be in danger of execution.
The first list contained 12 names of Baha’is, most of whom had already
spent periods of one to five years in prison.
they were the following: Ihsanu’llah A’yadi; Faraju’llah Sa’adati;
Suhrab Dustdar; Ramidan-Ali Amu’i; Bihnam Pasha’i; Muhammad Dihqani;
Izzatu’llah Khurram; Mihran Tashakkur; Farid Dhakiri; Vahid Qydrat; shahrukh
Huvayad’i and Mrs. Parvin Fana’iyan-Idilkhani.
19. The second list contained five names of
prominent Baha’is who were arrested on 21 October 1987 and were reported to be held in Evin
prison, Tehran. Two of them, Jamalu’d-Din Khanjani and Hasan
Mahbubi were reportedly former members of the National Baha’i Council of Iran,
and were said to be in danger of execution.
The other tree Baha’is arrested on that date were named as Changiz
Fana’iyan, Suhrab Hajiyan and Bahman Samandari.
The special Representative was subsequently informed that these five
persons had been released without any conditions.
20. It was further alleged in October 1987
that a prisoner named Seyed Ali Taherdjouyan, described as a member of the
People’s Mojahedin Organization, burned himself to death in the prison of
Gohr-Dasht, in Karaj,
western Iran,
allegedly in protest over the torture and poor conditions suffered by political
prisoners in Iranian prisons.
Information
concerning the economic situation of followers of the Baha’i faith
21.
According to information received in January 1988 the
Iranian government has, in recent months, increased its economic pressure on
followers of the Baha’i faith. This
pressure allegedly manifested itself in various manners, such as the
cancellation of business licenses, the confiscation of shops, farms and other
Baha’i-owned properties and the denial of membership in co-operatives to Baha’i
farmers. By way of illustration of such
[pressure the special Representative received the English translation of a
letter originally written in Persian, dated 5 July 1987, by which the Islamic Revolutionary
committee of Abbas-Abad, Tunukabun, informed a Baha’i tailor that “because of
you membership in the misguided Baha’i sect, your business licence is herby
revoked and declared null and void”. The
Special Representative also received a photocopy of a communication originally
written in Persian and its English translation, dated 9 June 1987, which
contained a guide-line signed by Ali Samadi, Commander of the Iranian
Revolutionary Committee of Abbas-Abad, stating that “according to the decision
made by the high authorities for the security and order, it is forbidden to
hire or to give any licenses for work to the members of the aberrant Baha’i
group. It is recommended to cancel all
the previous authorizations and licenses previously issued to them”.
22.
It was further alleged that thousands of Baha’is who
had been dismissed from their positions in education and government in the
early 1980’s continued to be denied their jobs and pensions, and that they had
been instructed to repay all salaries received during their period of
government employment.
Information
concerning treatment of Kurdish civilians
23.
The Democratic Party of Iranian Kurdistan alleged, in a
communication dated October 1987, that the Iranian authorities had ordered the
evacuation and resettling of 23 Kurdish villages, with a population of 3, 680
people, located in the Bolfat region, south-east of Sardasht (Iranian
Kurdistan). The villages affected by
that measure were reported as follows: Dolatou, Dawdaweh, Halesha, Sawan, Mam
Kaweh, Mazra, Darmakon, Pashghabran, Spidareh, Siramerg, Baizamar, Ayshaina,
Bardassour, Kodaleh, Mamandaweh, Zaleh, Newtchwan, Sourban, Ahmad Briw,
Guerdena, Doli Khanwan, Guilkank and Wardeh.
IV. CONSIDERATION
OF VIEWS OF THE IRANIAN GOVERNMENT
24.
The Special Representative has taken into account the
views expressed, both orally and in writing, by the Iranian Government. Some of those views accordance with the
international practice and the terms of the mandate. Other views have provided material for the
considerations concerning general substantive parts of the reports, and a few
have been considered as contrasting points for the clarification of the
approaches and the actions taken by the special Representative in the discharge
of his duties.
25.
In his Interim Report the Special Representative
indicated the points with respect to which he was unable to agree with the
positions adopted by the Iranian Government.
Differences on the interpretation of pertinent provisions and on the
accepted international practice have added obstacles, doubts or incertitudes to
the discrepancies based on disparate original perceptions regarding
international law and Islamic law. The
discussion of those points may therefore play a paramount role in the process
leading to the satisfactory operation of the system of human rights in Iran.
26.
It therefore seems timely and necessary to clarify the
reasons supporting the opinions expressed by the Special Representative in his
reports and the motivations of his actions in the discharge of his duties. It may be for the benefit of all concerned to
explain why and how the Special representative, though using flexible
approaches and criteria and willing to take into account the peculiarities of
the Iranian situation, was directed and guided by international instruments and
by his mandate to adopt those actions and positions. The peculiarities of the Iranian situation
present problems of application that are, to some extent, new, and, as such,
enrich the practice in this field and involve novel views and arguments
regarding the protection of human rights at worldwide level.
1. Compatibility of international law
with Islamic law
27.
After scrutinizing the explanations and the arguments
presented by the Iranian Government, it may be stated that the main source of
divergence in the interpretation of international instruments concerning human
rights derives from the question of compatibility between international law and
Islamic law. This issue concerns the
social, legal and historic role of religion in general and the peculiar place
of religion in the Islamic Republic of Iran in particular. This seems to be one of the most important
questions or even the fundamental one regarding some of the difficulties
Iranian government encounters with respect to the international instruments on
human rights. This has been apparent in
various official statements quoted in previous reports and in particular, in
“The Viewpoints of the Government of the Islamic Republic of Iran on commission
on Human Rights resolution 1987/55 and on the issues contained in document
E/CN.4/1987/23”, (E/CN.4/1988/12 – E/CN.4/Sub.2/1987/35), hereafter referred to
as “The Viewpoints”.
28.
The radical difference results from two significantly
distant approaches: whereas the General Assembly of the United Nations and the
Commission on Human Rights, and therefore the Special Representative, regard
treaties and solemn declarations of the United Nations as the fundamental
framework to examine the prevailing situation in respect to human rights, the
Iranian Government regards Islamic law as paramount, and international law as
merely supplementary to, or corroborative of Islamic law.
29.
“Islamic law is founded on the very original concept
that divinity reigns supreme and divine law is pre-eminent to human law. The Declaration (that is, the Universal
Declaration on Human Rights) is genuinely secular in its theme and essence and,
such, differs from Islamic law in its origin.
There may be similarities or even perfect compatibility on some
provisions, in particular, those that meet the condition of jus cogens,
but the original Universal Declaration on Human Rights discards any distinction
with respect to religion and calls for freedom to manifest religion in all its
realms. In contrast, “in the case of
Islam, manifestation of religion is inclusive of operation of the State
apparatus. It also constitutes the
origin of law” (“The Viewpoints”, p. 7 para. 7)
30.
This conception has practical implications, as it has
been stated by Iranian representatives.
It is pertinent to refer to the official statement of the Iranian
representative at the 673rd meeting of the Human Rights Committee on
10 April 1986: “…
relevant human rights instruments such as the Covenants and the Universal
Declaration on Human Rights contained provisions whose implementation would be
contradictory in a country where Islamic law is observed”. “… for example, the right to religious
freedom in an Islamic society where persons could not embrace any other religious
creed. The same would apply to the Covenant’s
prohibition of corporal punishment which would be contradictory to justice
under Islamic law” (CCPR/C/SR.673, p. 13).
(a) Absence of religious and
philosophical foundations in the Universal Declaration on Human Rights
31.
Those crucial statements deserve some comments. It is true that the Universal Declaration on
Human Rights is a secular document. This
assertion should be understood with some qualifications in order to put the
Declaration within a frame corresponding to the history of its preparation and
adoption. It is secular in the sense
that it does not contain or reflect, at least in direct way, religious
standpoints. This omission was
intentional and responded to the definite objective to get support from all
quarters of beliefs, philosophies and cultures.
For instance, the foundation of human rights and freedoms on the
doctrine of natural law, consistent with the Christian teaching, was
deliberately avoided, although some of the authors of the Declaration firmly
adhered to the theory of natural law.
32.
Jacques Maritain, the respected scholar who wrote the
introduction to the texts by eminent persons consulted by UNESCO in 1947 and
who synthesized the common denominator of the enlightened replies, advised to
avoid speculative and theoretical thinking as the only way to get wide support
for the Declaration on the making. He
stated that justifications though indispensable, were unable to lead to general
agreement (Authour de la Nouvelle Declaration Universelle des Droits de
l’Homme, texts reunis par 1’UNESCO, Paris, Edition du Sagitair, 1949). Martitain was a proclaimed and practicing
Christian and a follower and innovator of the old natural law tradition.
33.
The delegations that discussed and finally adopted the
Universal Declaration in the General Assembly of the United Nation followed
Maritain’s advice. They thus avoided the
questions of ultimate origin, remote causes and philosophical foundation of
human rights and fundamental freedoms, either religious or secular, rational or
empirical, idealist or materialist, and concentrated on rules for action, that
is, adopted a pragmatic approach.
Professor Rene Cassin, one of the most influential contributors to the
Universal Declaration remembered circumstances under which the question of
religion was dealt with (R. Cassin, “Les Droit de l’Homme”, Academie de Droit
International, Recueil des Cours, 1951, Vol. II, pp. 284 et al).
34.
States from all continents and geographical groups
agreed on the norms for action embodied in the Universal Declaration, in spite
of disparate cultural backgrounds and antagonistic socioeconomic structures and
ideologies. A universal consensus was
thus created on the meaning and scope the obligations acquired through the
Charter of the Nations. Consequently an
authoritative interpretation of the pertinent provisions of obligations on
human rights as defined by the Universal Declaration; and some non-members of
that Organization.
35.
There is no legal challenge or obstacle of principle to
the operation that would reintegrate to the Universal Declaration the ultimate
supporting elements that were discarded in order to avoid the wreckage of the
goal to get unqualified adherence of all States and peoples. But such limited result will not belittle in
any way the significance and the necessity of that exercise for certain
cultures and countries. Surely it will
have to be coherent with the current system of international protection of
human rights. And consequently would not
be permitted to jeopardize, alter, supersede or derogate from existing norms of
international law on human rights.
(b) Adherence of Islamic Countries to the
Covenants and the Universal Declaration of Human Rights
36.
The Iranian Government contended that the tow
covenants on Human Rights and the Universal Declaration were ratified during
the ruling of a secular regime by legislators who did not have the competence
and knowledge nor the will to examine them against the tenets of Islamic law,
and that the Iranian Parliament would have to take up this task in the future. “Meanwhile we continue to adhere to the
provisions of the Declaration and the two Covenants which are consistent with,
or at least not contradictory to Islamic law” (“The viewpoints”, p. 8, para.
10)
37.
The selective adherence to certain international
norms concerning human rights may be consistent with the Iranian legal system
but is incompatible with international law.
Even if legislators did not have knowledge of the tenets of Islamic law,
duly acquire state obligations remain unaffected and unchallenged. International legal obligations are acquired
by States, and Governments act as their representatives. International obligations of States do not
break down with the change of government or regime. This is a fundamental principle derived from
the absolute necessity to provide security to international relations.
38.
Iranian representatives as well as
representatives of other Islamic State accepted those instruments. The views expressed by representatives of
other Islamic countries at the time of the adoption of the Universal
Declaration make it possible to state that there are different views on the
question of compatibility between international law on human rights and Islamic
law. It is indeed difficult to accept
that all Islamic states did not pay attention to those instruments. The more consistent explanation of the fact
of generalized acceptance of those instruments would be that there different
understanding of the problem and its resolution.
39.
At the meeting of approval of the Universal
Declaration of Human Rights by the General Assembly of the united Nations, the
representative from Egypt, Mr. Raafa, made reservations regarding articles 17
and 19, on account of limitations Islamic countries put to the contract of
marriage of Muslim women with person belonging to another faith, and the
proclamation of man’s right to change his religion or belief (art. 19). In his opinion the Declaration could be
understood as “encouraging, even though it might not be intentional, the
machinations of certain missions, well known in the Orient, which relentlessly
pursued their efforts to convert to their own beliefs the masses of the
population of the Orient” (United Nations, General Assembly, thirds session,
first part, 1984 Plenary meetings, Official Records, V. 6, p. 913).
40.
The delegate of Pakistan, the well known
diplomat Sir Zafrullah Khan stated full support of his country to article
19: “Pakistan was an ardent defender of
freedom of thought and belief and of all the freedoms listed in article
19”. Afterwards he voiced reservation
with respect to this article, not in regard to the rights it consecrated but to
a possible abusive us of them. Sir
Zafrullah quoted the Koran as saying: “Let he who choses to believe, believe
and he who choses to disbelieve, disbelieve”.
He added that Moslem religion was missionary because “it strove to
persuade men to change their faith and alter their way of living, so as to
follow the faith and way of living it preached, but it recognized the same
right of conversation for other religions as for itself.
41.
Sir Zafrullah expressed anxiety at the possible
abusive use of article 19 of the Universal Declaration on grounds of the
actions of certain other religions (obviously Christian), whose activities had
sometimes assumed a political character and had given rise to objections
(United Nations, General Assembly, Ibidem).
42.
Those reservations resulted from possible misuse
of some provisions the Declaration but they did not criticize the recognition
of the rights listed in article 19. the
delegations of Egypt
and Pakistan
did not oppose the Universal Declaration and voted for its adoption. So the reservations were not sufficiently
important to separate those countries from the consensus that had been built
through the reduction of the instrument to rules for action. Other Islamic countries that were at the time
members of the United Nations voted in favour of the Declaration: Afghanistan, Iraq, Iran, Lebanon (a
country with strong Moslem influence), and Syria. Saudi Arabia abstained, and Yemen did not
participate in the vote.
43.
The universal Declaration emerged as the
authoritative understanding and the agreed interpretation on the meaning and
scope of the human rights and fundamental freedoms whose protection was
provided for by the Charter of the United Nations. From then on the international protection of
human rights from excess or misuse of power entered international law and
complemented and accepted by countries of all cultural, religious, and economic
and social systems.
(c) Absence of Islamic scholars in the
Elaboration of the Universal Declaration of Human Rights
44.
The Iranian Government stated that “no Islamic
scholar or Muslim jurisprudent had a chance to participate (in the preparation
of the Universal Declaration). Therefore
Islamic States do have the right to reserve their views on the validity or
applicability of those provisions. Many
Islamic States have ratified the Declaration and this does give rise to
responsibility, but ratification is not synonymous with satisfaction” (“The
Viewpoints”, pp. 7, 8, para. 8).
45.
The participation of Islamic Scholars in the
preparation of the Universal Declaration was indeed limited, and may even be
considered extremely limited considering the extent and importance of Islamic
culture. Nonetheless it was not entirely
absent. At least one Muslim scholar was
consulted by UNESCO: Mr. Humayn Kabir. (Textes reunis ar 1’ UNESCO, “Les driots de l’homme, la tradition de
1’Islamet les problemes du monde actuel”, pp. 158-161). Mr. Kabir favoured a universal system
of human rights under a world authority.
Furthermore it may be assumed that representatives of Islamic countries
at the United Nations were conversant with Islamic teaching and were professed
Moslems.
46.
The argument and criticism referred to above may
be considered of political character. In
1948 Islamic countries did not have the influence they exert today in
international relations. From a strictly
legal point of view the case must be viewed under a different light. As a matter of fact official representatives
of Islamic member States of the United Nations in 1948 did participate in the
proceedings. The crucial point in regard
to the legal capacity to oblige he State consists of authorization and
accreditation through full power to act on behalf of the State (Convention on
the Law of Treaties, arts. 7 and 8). The
professional qualifications of the delegates who express the official position
of a State or group of States is not an element of the will to consent. The selection of delegates with suitable
specializations to deal with the subject matters under debate in international
fora is left to the discretion and wisdom of each Government.
47.
Certainly it would be possible that national
representatives become liable under municipal law but this would be an internal
affair. Responsibility under municipal
law does not affect international obligations acquired by duly authorized and
accredited representatives. The
Convention on the Law of Treaties (Art. 27) prescribes that States parties can
not invoke municipal law in order to justify the non compliance with a
treaty. The legality of the consent to
be bound by international instruments does not impede in any way the
accountability of national officers who did no follow instructions or exceeded
powers. Conversely the accountability
mentioned before does not affect international obligations.
(d) An Islamic Declaration of Human Rights
48.
The Iranian Government referred to an Islamic
Declaration of Human Rights that could redress the flaws of international
instruments adopted under the aegis of the United Nations. “The Islamic Declaration, once finalized,
will make the most notable achievement of co-operation among Islamic States on
this issue and they shall undoubtedly find it more pertinent to their concerns
regarding human rights and fundamental freedoms” (The Viewpoints”, p. 8, para.
9)
49.
An Islamic Declaration of Human Rights would
certainly contribute to the consolidation of human rights around the
world. The regional declarations adopted
so far, as those of the European community and the Organization of American
States have not departed from the structure of international protection of
human rights of the United Nations. They
have increased the protection of human rights through special commissions of
surveillance and even ad hoc courts of justice. That is, regional declarations have gone
beyond the system sponsored by the United Nations.
50.
An Islamic Declaration of Human Rights might
express particular viewpoints, including religious and philosophical
foundations, but it may be expected that, the same as previous regional
declarations, it will be consistent with the universal system of the United
Nations and will increase the protection of human rights with a special
commission and a court of justice.
51.
Judgement may be deferred in order to examine
the final product, but in the meantime, on account of the rich cultural
heritage and the humanitarian content of Islamic teaching the tenets, the
formulation of a declaration consistent with international law may be expected.
52.
The Universal Declaration has acquired the
status of customary international law.
Consequently it blinds all States, including those that were not members
of the United Nations at the time of its adoption. Furthermore new members implicitly accept
previous decisions of the competent organs of international organizations. It is commanded by reason and sanctioned by
custom that new members accept the transactions that have been performed within
the terms of the constitutive treaties.
(e) Municipal Law and International Law
53.
The departure of municipal law from
international law has been the subject of careful study by eminent scholars and
judges and has produced extensive legal literature. A dominant consensus has emerged in the sense
that municipal law has to be integrated within international law and
consequently any departure leaves international law in full force. International law must not be bent by deviate
municipal norms.
54.
Accordingly international law preserves its features,
contents and functions in spite of contradictory municipal law. International jurisprudence has proclaimed
the dictum that as far as international law is concerned, municipal law
operates as a fact and no more than that.
The admission of unilateral departures from existing international law
would threaten the security and stability of the entire fabric of international
relations. The values, motives and ends
behind those departures, as pertaining to the domestic jurisdiction of the
State, remain unchallenged.
(e) Selective Adherence to International
Instruments
55.
In the case of Iran the main effect of the
alleged incompatibility of international law within Islamic law regarding
certain provisions of the two Covenants and the Universal Declaration of Human
Rights has been the selective adherence to a number of provisions and the
refusal to accept the validity and applicability of others, as indicated by the
quotations mentioned at the beginning of this section.
56.
The legal, political and moral nature of the
instruments concerning human rights does not admit selective acceptance and
rejection. Each instrument constitutes
an indivisible body, and once a State is bound, it is bound by the entire
instrument. Termination and suspension
of international obligations open to countries which encounter difficulties of
application of or are displeased with existing norms.
57.
The International Covenant on Civil and
Political Rights permits that in case of public emergency which threatens the
national life, a State party may take measures derogating from its obligations
regarding a number of provisions, “to the extent strictly required by the
exigencies of the situation”. Though the
Iranian situation appears to meet the condition indicated in that provision,
the Iranian Government has not taken advantage of the authorization under the
Covenant.
58.
Claims and criticism against existing norms may
constitute the first stage of a process leading to the establishment of new
norms. In principle al norms of
international law are susceptible to change, even those of jus cogens,
as stipulated in the Convention on the Law of Treaties (arts. 53 and 64), and
no rule or human institution is immune to change. But in no far as the process of change has
not culminated in the establishment of new norms, the existing law has not be
respected and applied. International
relations would become untenable and, in extreme situations, chaotic, if
unilateral positions of States would suffice to introduce exception to existing
law, even where those positions or actions are well enshrined in the cultural
heritage of the States concerned.
59.
Furthermore, it may happen that certain specific
ways of application of general rules to particular cases might be adapted in
order tot take into account the peculiarities of each concrete case or
situation. Thinking in a speculative
way, a working arrangement of action and
inaction, formal authorization and mere toleration could be conceived. This expedient would have to be carefully
studied and worked out with respect to concrete situations and cases only. It could not be ruled out a priori,
but to transform it into a means of disregarding, putting aside, getting rid of
or introducing unilateral modifications to binding international instruments
would be inconsistent with the existing system of human rights. This would be another example of application
of the ancient adage saying that whereas justice is good equity is even better.
2. Replies to Alleged Violations of Human
Rights
60.
The Iranian Government has refused to provide
detailed replies to the allegations of violations of human rights presented to
its consideration: on four grounds: the terms of the resolution of the
Commission on “Human Rights creating the mandate, the method of conveying the
allegations to the attention of the Government, the Qualifications of the
witnesses interviewed by the Special Representative, and the use of certain
terminology in official resolutions and documents. The question regarding the terms of the
mandate will not be discussed in this report.
(a) The method of conveying allegations
61.
With respect to the method of conveying
allegations to the attention of the Government, the Iranian Government stated
that the groups that had provide such information were disqualified as valid
interlocutors and that they had “the only common denominator … that they all
follow the same objective of undermining the sovereignty of the Islamic
Republic of Iran. It is quite
questionable, therefore, that these groups have been the only sources of
information for the so called detailed and specific allegations. Nevertheless the Commission should be
informed that to respond to these so called “Allegations” in the present format
creates a legal problem. None of these
groups have registered themselves or are qualified to be registered as
political party or a minority in the Islamic Republic of Iran. To respond to these specific sections of the
Report would implicitly imply recognition of the status of the Special
Representative has granted them. A
situation that would run contrary to Iranian law” (The Viewpoints” pp. 10-11,
para. 23).
62.
it is necessary to clarify that the Special
Representative has not granted any recognition to any of the groups which have
served a s channels of communication of alleged violations of human
rights. The mention of the groups that
have acted as vehicles for the
presentation of concrete cases can not and should not be construed as
intended to grant or recognize them any particular status. The mention of those groups has not other
purpose than to provide the Iranian Government wit a complete picture of the
allegations. The granting of recognition
or status would go beyond the mandate of the Special Representative and would
not correspond to his intention.
63.
All the allegations concern individuals and many
of them were made by individuals in their individual capacity. The political affiliation of those persons
are not under discussion. They may or
may not be members of sympathizers or simply acquaintances of any of the groups
referred to by the Iranian Government.
They are human being entitled to the enjoyment of the protection of
human rights. International law on human
rights gravitates on the generic and most common dimensions of human beings.
Without consideration of particular features such as race, nationality, sex,
religion, culture or economic or social position. Natural persons are recognized in their
inherent dignity and worth.
64.
The study of the situation of human rights
prevailing tin a given country requires the collection of all available
information. It would be unwise to
reject a priori certain sources and to accept others. Indeed all information is debatable and
subject to scrutiny. It is precisely for
that the circumstantiated views of the Government concerned that an important
role. After a controversial examination
of the cases it would be possible to have a more accurate view of the situation
regarding human rights. Judgement would
follow the examination of facts and vehicles of information.
65.
The Iranian Government suggested, as an
alternative, that the Special Representative may receive information from
certain political groups informally and convey it to the Government in the same
manner, in order to get the official consent to publish the names of such
groups in official documents. The
Government objects to the publication of the names of such groups alleging that
it provides them with “publicity, exposure and clout” (“The Viewpoints” pp. 11,
12, 15, paras. 28, 40 (g)). If public
documents of the United Nations are used for propaganda purposes, that fact
goes beyond the intention and the capacity of control of the competent
organs. The suggested procedure might be
adopted by the Commission on Human Rights, but according to procedure might be
adopted by the Commission on Human Rights, but according to the present
formulation of the mandate the Special Representative has to present to the
Commission, through his reports, all the available information, without any
restrictive procedure. To further
clarify this suggested procedure, it is convenient to have in mind the
distinction between information provided
by groups as such and information provided by individuals. The suggestion mentioned above concerns only
information emanating from and concerning groups.
(b) The qualifications of witnesses
66.
With respect to the qualifications of the
witnesses interviewed by the Special Representative, the latter has received
communications and examined witness in accordance with the well established
practice of international organs dealing with human rights. The Inter-American Commission on Human Rights
started this practice in 1962, and from then on this procedure has been
extensively applied. Witnesses are
indispensable to collect firsthand information and to assess the prevalent
situation of human rights.
67.
The Iranian Government would like the special
Representative to apply the restrictive rule of the International Covenant on
civil and Political Rights (art. 41) (“The Viewpoints”, p. 11, para. 24). This rule applies to Human Rights Committee
and has not been adopted as practice by other international organs entrusted
with the protection of human rights.
68.
The mandate of the Commission on Human Rights
empowers the special Representative “to make a thorough study of the human
rights situation based on such information as he may deem relevant, including
comments and material provided by the Government” (resolution 1984/54, para.
4) the mandate therefore leaves it to
the discretion of the Special Representative to determine the relevant
information. Certainly discretion can
not be equated to arbitrariness. The
Special Representative has used that authorization within the terms of the
international practice on human rights and in accordance with duly and widely
recognized international standards.
(c) The question of the term “Minority”
69.
The Iranian Government has objected to the use
of the term “minority” as applied to the members of the Baha’i faith. The adduced motivation is the absence of a
standard definition at the United Nations.
And, indeed, the Sub-Commission on the Prevention of discrimination and
Protection of Minorities is far from reaching an agreed definition of this
term.
70.
The term “minority” has been consistently used
by the Commission on Human Rights in its resolutions in reference to the
Baha’is. The Special Representative has
sometimes referred to this group in the same manner, within the terms of
reference of his mandate.
71.
The term “minority” has been studied by
sociologists and has entered and has been incorporated by the international
lexicon for a long time. Sociologists
generally define “minority” as a group of people differentiated from others of
the same society by race, nationality, religion or language. From others of the same society by race,
nationality, religion or language. The
application of that term to the Baha’is would not add or diminish
characterizations to their entity. They
are what they are irrespective of the words used to refer to them. The Special Representative deals with the
Baha’is as individuals and is interested in groups as formed by individuals and
as providers of information on individuals.
The view of the Iranian Government denying the condition of minority to
the Baha’is has been duly reflected in the Special Representative’s previous
reports.
V. GENERAL
CONSIDERATIONS AND CONCLUSIONS
72.
The presentation by the Iranian Government of a
document (“The Viewpoints”) containing its views on several issues and its
opinions on the binding force of international instruments on human rights, has
helped to clarify controversial points and provided material which makes it
possible to have an insight into the intricate situation of that country. Clarification of conflicting approaches and
interpretations may sometimes constitute the first stage of a process leading
to some kind of common understanding and to the eventual solution of the
outstanding problems. The Iranian
document has in particular permitted the Special Representative to elucidate
his own approaches and views on conflicting points.
73.
The Special Representative welcomes the
statement of the Iranian government that some provisions of the International
covenant on Civil and Political Rights, particularly those which may be
considered as jus cogens, are compatible with Islamic Law. This statement clears the normative basis for
the examination of the concrete allegations of violations of human rights
submitted to the attention of the Iranian
Government. Disparate official
submitted to the attention of the Iranian government. Disparate official statements on this subject
have been registered, but it seems that,
with regard to the situation of human rights, the position officially
communicated to the Special Representative should prevail. The Special Representative expresses the hope
that Iranian government will increase the normative area of agreed application
of norms concerning human rights in order to cover the entire international
instruments by which it is bound as a
member of the United Nations and a party to the two Covenants. This final outcome would entail the
abandonment of the selective adherence to some provisions of the international
instruments.
74.
The original perception from which the Iranian
government derives it s initial positions and these with respect to the
international protection of human rights may be considered as deeply enshrined
in its cultural life and its current national movement. The preliminary difficulties with respect to
the full application of the instruments on human rights could thus be the full
application of the instruments on human rights could thus be explicable. The statement on the compatibility of certain
international provisions with Islamic law may be understood as an effort of
accommodation to the international obligations and as the beginning of a
sustained trend that may eventually reach the point of acceptance of the
positions adopted by the General Assembly of the United Nations and the
commission on human Rights in their successive resolutions. The discussion and the clarification of the
question of compatibility of international law with Islamic law, and the
hypothesis of a working arrangement at a concrete and factual level are
therefore quite important. On the part
of international organs of protection account the peculiarities of the Iranian
situation and to facilitate and help the full compliance of Iran with the
provisions of the international instruments.
Comments made and information provided by the Iranian Government have an
extensively quoted and referred to in the reports prepared by the Special
Representative previously, particularly in the Interim Report (A/42/648). Both the practice of the international organs
of protection of human rights and the terms of the mandate (resolution 1984/54,
para. 4) determine that comments from the Iranian Government should be
received, considered and included in the analysis of the prevalent situation.
75.
The views of the Iranian Government concern a
variety of subjects, from the qualifications of groups that have acted as
medium for conveying information to the compatibility of international law with
Islamic law. The Special Representative
has been unable to agree on some of those views. There is no doubt that the original
perception based on the system of international law on human rights differs
from the original religious perception of the law on human rights differs from
the original religious perception of the Iranian Government. Nonetheless in the course of the oral and
written dialogue some points have been identified upon which a kind of working
understanding may exist. The Special
Representative has tried to take the Iranian views into account as much as
possible, to the extent this was consistent with the structure and operation of
international instruments on human rights.
Thus, a possible way was indicated to give some consideration to the
Iranian desire to apply particular rules to the use of information provided by organized groups (supra, p.
65). The present use of such information
is consistent with the practice of international organizations but there is no
legal obstacle for the Commission to adopting particular rules in handling such
information. It has also been
acknowledged that the participation of Islamic scholars in the preparation of
the Universal Declaration of Human Rights was relatively minor,
considering the importance and extension
of Islamic culture, without attributing any legal effect to that fact. And hypothesis has also been outlined
according to which a working arrangement with respect to concrete cases might
be worked out in order to overcome obstacles of local character while ensuing
the compliance with international norms (supra, p. 59)
76.
In his introduction to the Interim Report
(A/42/648) the special Representative indicated, with respect to the enjoyment
of human rights, the coexistence of two complimentary but distinct elements
with their respective levels of operation:
the normative and legal level and the level of implementation. The normative level is important and is
constituted by international instruments and municipal law. But despite its importance it may have scares
practical occurrence if the level of implementation is faulty. Governments therefore have to monitor
carefully the level of implementation through the actions of both petty and
high officers, in order to fully comply with international obligations.
77.
With respect to the normative level, it has not
yet been possible to obtain complete texts of the pertinent Iranian laws, such
as the Penal Code. It has therefore not
been possible to examine the compatibility of the laws with international
instruments. Nonetheless, it has been
possible to examine, to some ext4ent, the level of implementation on the basis
of oral and written information’s, and the Special Representative has expressed
in the Interim Report his concern regarding the treatment given to prisoners
during interrogation and before and after the final verdict, as well ads at the
specific accusations against them, lack of legal counsel and other
irregularities.
78.
The Iranian Government provided information
quoting provisions of the Constitution and the Penal Code concerning the
punishment of judicial officials and non judicial staff engaged in maltreatment and molestation of prisoners (A/42/648,
p.16 para. 46). It is the considered
view of the Special Representative that complaints regarding maltreatment and
torture should not be discarded without a thorough examination of each case,
since such practices are strictly forbidden by municipal law and international
law.
79.
The communication of allegations of violations
of human rights has a positive aspect, as it gives information to the
Government concerned on facts that may have escaped its knowledge and may
orient the investigation and contribute to the possible redress of any weakness
in the national system of protection of human rights. The communication of such allegations thus
contributes to the fair functioning of the national institutions. The furnishing of circumstantiated replies to
such allegations also has a positive aspect for any Government. As a matter of fact the Government concerned
may benefit from the inclusion of the replies in the reports, as both the
General Assembly and the commission on Human Rights would be aware of its views
and would have additional information to formulate a balanced judgment on the
current situation. The replies are part
of a consistent practice on this subject matter. Furthermore they would not imply any
recognition or granting status to any of the groups involved in political
strife or, in any other way, active in a given society. In the case of Iran the replies would be part of a
dialogue between the Iranian Government and the Commission on Human Rights
through the Special Representative, and nothing more. In the absence of concrete official replies
to allegations of violations of human rights only one side voices its views,
while the other side – the Government – remains silent.
80.
It may be convenient to emphasize again that the
international protection of human rights has a co-operative character which
derives from the text of the Charter of the United Nations. It activates the co-operation promised among
members of the United Nations. The
objective of the exercise is to ensure compliance with international
obligations on the basis of co-operation of each State and each
Government. It is not a judicial
procedure. It appeals to good will, to
moral and political standards and to legal norms whose enforcement is, for the
time being, imperfect. Its goal is not
to condemn a Government but to redress a given situation.
81.
The Centre for Human Rights has developed a
programme of technical assistance which is based on the co-operative character
of the action and surveillance by the competent organs of the United Nations,
whose ultimate recourse is world public opinion. Governments wishing to be fully and
thoroughly acquainted with the continuing the fast developments in the field of
human rights and to know the intricacies of the application of international
instruments may take advantage of this service (Commission on Human Rights,
resolution 1987/37 and basic information provided by the Centre).
82.
In the light of the foregoing analysis the
Special Representatives has reached the following conclusions (of which the
chapter on “observations” of the interim Report may be considered as the
introductory part):
1). The
Special Representative appreciates the co-operation of the Iranian government
and expresses his hope that this co-operation will reach the level of full
co-operation in the near future, in compliance with the reiterative resolution
of the General Assembly of the United Nations and the Commission on Human
Rights. The Special Representative also expresses the hope that the Iranian
Government will reconsider its position on some issues referred to in this
report, in order to fully comply with the provisions of binding international
instruments on human rights. The Special Representative believes that the
development of coincidence of views and the actual implementation of the
cooperative character of the international protection of human rights may lead
to the gradual solution of the pending problems.
2).
The alleged incompatibility between some
provisions of international law on human rights and Islamic law is a domestic
problem that should be solved by the Government concerned, because it does not
affect or change per se international obligations. From the point of
view international law the obligations acquired by the Islamic Republic of Iran
as a member State of the United Nations and as a party to the two International
Covenants are fully binding and do not admit exceptions on account of
constitutional problems, rules and regulations of municipal law, or cultural or
historic background- even if justified from a national point of view.
3)
Notwithstanding that assertion of principle and
taking into account the cooperative character of the international protection
of human rights it would be possible to make efforts in order to meet some of
the misgivings and concerns of the Iranian Government at a very concrete level
and without belittling the full force and the right application of agreed and
binding provisions on human rights.
4)
Although the selective acceptance by the Iranian
Government of important provisions of the International Covenant on Civil and
Political Rights provides a normative basis for the five categories of
complaints communicated to the Government, it is expected, as a matter of
principle, that the Iranian Government may reach the point of complete
recognition of all provisions of binding international instruments without
discrimination of any kind.
5)
Allegations on violations of human rights have
been communicated to the Iranian Government in accordance with international
practice. These allegations refer to individuals. Whenever certain groups have
played the role of intermediaries to convey information the individual
character of such information has been kept. As human rights protect human
beings in their most common and generic dimensions, their political or
religious affiliations, their change of citizenship and other particular
conditions or characteristics are of no relevance.
6)
The circumstantiated official replies to
communications of alleged violations of human rights would certainly contribute
to a better understanding and evaluation of the situation regarding human
rights and would inform the international community of the concrete views of
the Iranian Government as well as the result of the investigations on specific
cases. Furthermore, these replies would be an important element of the full
cooperation required by the Commission on Human Rights.
7)
The Special Representative expresses concern on
account of communications referring to new cases of summary executions and of
information according to which some prisoners were in danger of execution.
Nevertheless, the Special Representative notes with satisfaction the
information according to which five prominent members of the Baha’i faith who
were arrested in Teheran in October 1987, including tow former members of the
National Baha’i Council of Iran who were alleged to be in danger of execution,
were recently released from prison without any conditions. Information on
growing economic pressure on Baha’is, such as cancellation of business
licenses, confiscation of property, dismissal from government jobs and loss of
pensions, as well as, denial of higher education, still continues to be
received in a consistent manner.
8)
Information on maltreatment and torture in
prisons continues to be received and was the subject of pathetic and moving
declarations by witnesses who had direct experience of the conditions
prevailing and the behavior of officers in prisions. Some witnesses presented
the physical effects of maltreatment that could be seen and interpreted by a
layman. Medical doctors gave expert opinion linking those effects to torture.
Moreover, information on irregularities of various kinds in the course of
trials was abundant, consistent and convincing. Consequently the Government may
wish to initiate an urgent investigation of those complaints in order to take
measures of redress.
9)
The Special Representative continues to believe
that acts still occur in the Islamic Republic of Iran which are inconsistent
with international instruments on human rights, and that the situation in that
country justifies continuing international concern, study and constant
monitoring by the competent organs of the United Nations.
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