Judicial Imposition of the Death Penalty and Corporal Punishment in Iran and Saudi Arabia for Unlawful Consensual Sexual Relations under Shari’a: A Human Rights Critique

Abstract

Islamic law (<i>Shari’a</i>) protects the right to marry between a man and a woman of marriageable age based on free and full consent of the intending spouses and to found a family. It prohibits all forms of sexual relations outside marriage including consensual premarital sexual intercourse (fornication), extramarital sexual intercourse (adultery), and consensual same-sex sexual acts between adults in private. Severe penalties are imposed including the death penalty for adultery, or consensual same-sex sexual acts and corporal punishments in the form of whip lashes/flogging for fornication. Both the Islamic Republic of Iran and the Kingdom of Saudi Arabia criminalise all consensual sexual relations outside marriage between a man and a woman based on domestic interpretations of <i>Shari’a</i>. Both States also impose the death penalty, including in the most extreme instance, stoning to death, persons convicted of consensual sexual relations outside marriage such as adultery and consensual same-sex sexual acts between adult males in private. In practice, sentences are applied in a discriminatory way affecting predominantly women and girls. In addition, corporal punishment of flogging is imposed on unmarried persons convicted of sexual intercourse outside marriage or imposed on women convicted of consensual same-sex sexual acts. This article considers whether the criminalisation of such sexual relations and the judicial imposition of the death penalty and/or corporal punishment are compatible with the international human rights obligations of Iran and Saudi Arabia as State parties to several international human rights treaties. It makes observation on whether Islamic States with specific reference to Iran and Saudi Arabia can comply with international human rights law while applying Islamic law.