BRIAN EGAN AND JOCELYN HUTTON body, insofar as they serve the regime’s presiding interests and not the letter of the law. LEGAL BACKGROUND Iranian law follows, to certain extent, Shari’ā law, which can seemingly limit the potential for debating capital punishment in Iran. Michael Mumisa notes that “governments frequently use Shari’ā to justify why they retain and apply capital punishment, and this can seem to close discussion on the subject.”16 However, Mahmoud Cherif Bassiouni argues that “the existence of the death penalty for several crimes in Muslim states is a policy choice, but not one which is necessarily mandated by the Shari’ā.”17 Therefore some would argue that Iran’s decision to apply the death penalty with such fervour is fundamentally political, and not ideological or religious. The 2013 Islamic Penal Code contains three categories of offences pertaining to the death penalty: hudud, qisas and ta’zir offences. Hudud, or ‘fixed’ offences, are those which are specifically accounted for in Shari’ā with fixed and mandatory sentences that cannot be deviated from by a judge.18 Mumisa notes “since by their very hudud laws are believed to be ‘mandatory’ and ‘fixed’ by God Himself, there is very little, if any, room for the right to appeal to a higher court as enshrined in Article 14 (5) of the ICCPR.”19 In relation to foreign nationals, the hudud offences of Moharabeh (enmity against god),20 Efsad-e-feldefinition arz (corruption on earth)21 and Baghi (armed rebellion) are used extensively.22 Iranian case law has seen these levied at drug traffickers, political opponents, foreign nationals accused of spying, members of opposition groups and minority activists in civil society.23 These offences are frequently leveraged to quash political dissidence. Qisas offences are akin to doctrines such as lex talionis, ‘retribution in kind’ or ‘an eye for an eye.’24 The death penalty arises where the offender’s conduct leads to the death of another, with the survivors of the victim having the right to claim retribution in kind, that is, the death of the offender. However, they could also choose to pardon the killer or accept compensatory ‘blood money’ (diya). Foreign nationals often lack the means and the social networks required to arrange and pay the qisas, further disadvantaging them. Ta’zir offences, or ‘discretionary punishments,’ are those crimes that have not been specifically provided for under Shari’ā law, but those which the judiciary consider to be against the State’s interests or against tenets of Shari’ā law generally.25 They can be decided by judicial discretion or by standalone legislation, such as military, economic or drug trafficking crimes. With reference to judicial discretion, Hoyle has found that “decision-making within discretionary systems is likely to be influenced by prejudice against people on the grounds of their race, religion or citizenship, with ‘non-citizens’ particularly disadvantaged.”26 This is evident in Iran, with various groups of ‘others’ disproportionately represented on death row. 3