In response to international condemnation of GHISAS which allows the alleged victim’s family to determine the life and death of the accused and to request BLOOD MONEY in return for execution,  Iran’s attorney general, Ayatollah Dari NajafAbadi said: “Ghisas (retribution by execution) is not the right of the government and the government can not interefere in it. International human rights organizations must differentiate between GHISAS and EXECUTION. “. In an interview with ISNA NajafAbadi stated that GHISAS applies to the (retribution) rights of individuals. “In such cases the government has no right of interference when in return for a loss of a family member , people (the victim’s family) can demand GHISAS (execution) of the guilty party.” Iran’s attorney general added. 

The Attorney General of Iran lacks a basic understanding of constitutional law as well as humanitarian law. The following are some important points to consider in assessing the inequities of this system of retribution:

1. Government authorizes the ghisas and performs the act of execution:  The distinction made by the Attorney General between “GHISAS” and “EXECUTION” demonstrates poor logical analysis in effort to shift responsibility for the decision to carry out an execution away from the Iranian government.  It is the famous “Pontius Pilate” defense reasserted in 21st Century jurisprudence.   In Iran, ghisas is an act authorized by the state. Therefore, it is a “state action” in the sense that private citizens are authorized to make a life or death decision concerning one of its citizens.  The authority over life and death is delegated to private individuals.  To say that the government cannot interfere, while the government itself authorizes the ghisas and performs the act of execution, demonstrates a lack of understanding of even the most rudimentary principles of constitutional analysis and human rights law. Where the government allows a private citizen to determine the life or death of another citizen, that government is engaged in the act of ghisas itself by conferring authority over a state decision (life or death) upon a private citizen. This is nothing more than an ancient form of barbarism.

2.  The concept of ghisas places a monetary value on life and death: People sometimes ask how “blood money” differs from the payment of damages in a wrongful death action.  First and foremost, in a wrongful death action a party who has suffered a loss seeks compensation for the pain and suffering associated with the loss.  The parties attempt to settle throughout the litigation.  However, if they are unsuccessful in agreeing on the terms of a settlement, they proceed to trial.  At trial, the judge or jury determines whether the party who has lost a loved one is entitled to monetary damages and if so, how much.  In contrast, in the system of ghisas, if a party does not pay the money demanded, he is executed.  The penalty for not paying in a civil action is the possibility of a money judgment after trial.  However, the penalty for not paying blood money is death by execution.  Even worse, the alleged victim’s family is permitted to decide how much should be paid.  The system is inherently corrupt is the equivalent to extortion which is illegal in civilized nations of the world. 

3.  The system of ghisas discriminates on the basis of financial status: The system of ghisas is inherently corrupt in that it discriminates on the basis of financial status.  The poor are executed because they cannot raise the blood money whereas the rich are able to raise the money and are set free.  Thus, degree of culpability is completely irrelevant to the decision whether one is executed.  The decision is based solely on the ability to pay.

4.  In the ghisas system, the decision over life and death is not made by an impartial trier of fact: In civilized nations, any bias on the part of a judge in rendering a death sentence is grounds for setting the sentence aside on appeal. The concept of ghisas does precisely the opposite. It places the decision over life and death in the hands of the very people who have the greatest bias, the family of the alleged “victim.” The Attorney General of Iran would no doubt respond, “He has already been sentenced to death, the victim’s family is simply deciding if he should be allowed to live.” In a civilized culture the response would again be that such important matters as life and death should never be delegated to non-impartial private citizens, particularly not the family of the alleged victim.  

5.  The ghisas system holds the accused hostage until a ransom is paid: Under the system of ghisas as used in Iran, the accused is held in prison under the threat of execution until the family pays the “blood money.”  This is no different from holding someone hostage until a ransom is paid in a kidnapping case.  

6.  Under the system of ghisas one is executed for minor crimes and set free for capital offenses: At present, 17 year old Mosleh Zamani is awaiting his execution for alleging having sexual relations with a female when he was 13 years of age.  Recently two allegedly homosexual youths were executed for their alleged homosexuality.  In both of those situations there is no one to whom blood money can be paid because no one has suffered the death of a loved one.  In contrast, where one has committed the capital offense of murder he can be set free if the family of the victim accepts blood money.  Thus, the system is inherently unfair in that those guilty of a lesser crime cannot escape execution by the payment of blood money whereas those guilt of a capital offense can often escape execution and may even be given complete freedom simply because their crime is one that allows the payment of blood money. 

The foregoing are only a few of the more obvious examples of the inherent inequities in the ghisas system of Iran.  It is a corrupt system with roots in the ancient world of barbaric notions of criminal justice and it is a blight on the international community.   

D.W. Duke is a principle in the California law firm of Giardinelli & Duke, APC. He received his Juris Doctorate from Washington University School of Law. Mr. Duke is a noted lecturer on various legal matters and has published several books on legal topics including Principles of Liberty, a Practical Guide to Constitutional Law, Understanding and Avoiding Medical Malpractice and California Insurance Law.