By: Rose Mahdavieh
Introduction
Mahsa Amini’s death ignited the flames of an untamed fire and united the biggest movement in women and human rights.
Mahsa Amini, a Kurdish Iranian woman, died after allegedly breaking Iran’s strict rules on the hijab.[1] Iranian authorities claimed that Amini died of a heart attack, however, many eyewitnesses saw Amini being beaten to death by Iran’s morality police.[2] Mahsa suffered a fatal head injury and fell into a coma where she later passed away.[3] News of Mahsa’s death sparked protest on the streets and quickly spread to every city throughout Iran. Women are the fervor of this movement; some have taken off their obligatory hijabs in public, an act punishable under the law, and burned them.[4] Consequently, the government shut down access to the internet to prevent the spread of information, and Iranian people remain isolated from the world.[5]
Excessive Use of Force
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which Iran is a signatory party, states that “no on shall be arbitrarily deprived of his life.”[6] Likewise, Article 7 states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[7] Finally, Article 9 states that “no one shall be subjected to arbitrary arrest or detention” and “anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to release.”[8]
Mahsa Amini’s death by the mortality police is an outward violation of articles 6, 7, and 9 of the ICCPR. First, Mahsa Amini was arbitrarily murdered for showing a few locks of her hair albeit being veiled. Under Article 638 of Islamic Penal Code of Iran, “women who appear in public without a proper hijab should be imprisoned from ten days to two months or pay a fine of 50,000 to 500,000 Ryal.”[9] Mahsa Amini did not break Iran’s hijab law; she remained veiled with only a small portion of her hair showing. Many agents of the re-education center where Mahsa Amini was to be transported have arbitrarily detained women who do not comply with the forced hijab laws.[10] While forced hijab laws are a human rights issue in itself, in Iran, compliance with hijab laws is based on subjective qualifications as exemplified with Mahsa Amini’s death along with many other women arbitrarily detained.
To supplement Article 7 of the ICCPR’s cruel and unusual punishment, there are four principles codified in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials.[11] Although soft law instruments, they set forth the permissible state use of force:
(1) Legality: the use of force must have a legal basis and pursue a lawful purpose
(2) Necessity: force must only be used when, and to the extent, strictly for the achievement of a lawful purpose
(3) Proportionality: the harm likely to be inflicted by the use of force must not be excessive compared to the benefit of the lawful purpose pursued
(4) Precaution: law enforcement operations must be planned, prepared, and conducted so as to minimize, to the greatest extent possible, the resort to force and, whenever it becomes unavoidable, to minimize the resulting harm.[12]
Iran’s use of force against Mahsa Amini was unlawful and failed to comply with the above principles. First, there is no Iranian law that permits law enforcement to use deadly force for not properly wearing a hijab. Second, the principle of necessity requires a “factual assessment of the least harmful means that can be expected to achieve the desired purpose.”[13] Here, the use of force was not necessary in carrying out a lawful purpose. The morality police could have reasonably achieved the purpose pursued and applied a non-violent approach, like taking Mahsa Amini to the re-education center. The significance of the analysis hinges on the third prong – proportionality. Proportionality assess whether the “harm expected to result from the use of force can be justified in the light of the benefit of the desired purpose.”[14] Lethal force is limited to exceptional circumstances, such as defending a person against imminent threat, or preventing a dangerous criminal from escaping.[15] However, these circumstances are not present in Mahsa’s case. Mahsa complied with the hijab laws except for a small portion of her hair was noticeable. In this case, deadly force is excessive and unproportionate. Finally, precaution includes training law enforcement to “avoid situations in which the use of force will become inevitable.”[16] Again, Iran fails to hold law enforcement accountable for using force against its people. On countless occasions, Iran’s government has condoned the use of force in squashing political uprisings.
Article 9 of the ICCPR entitled Mahsa to a fair trial within a reasonable time. Because Mahsa’s arrest was arbitrary, at the very least, she was entitled to seek judicial redress against the authorities who harmed her. Unsurprisingly, Mahsa was not granted the opportunity to a free trial, and it is unlikely she could sue the law enforcement who beat her. The Iran judiciary is not keen on hearing cases against government officials.
Aftermath: Freedom of Expression and Internet Shutdowns
Under Article 19 of the Universal Declaration of Human Rights (UDHR), everyone “has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference.”[17]
Article 19(3) of the ICCPR lists restrictions on the right to freedom of expression:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.[18]
Access to the Internet is widely recognized as a freedom of expression in the era of digital globalization. Under Article 19(2) of the ICCPR, everyone shall have “the freedom to seek and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”[19] States are obligated to ensure all individuals have meaningful access to the Internet and should refrain from interfering with digital communication platforms unless it adheres to the restrictions promulgated in Article 19(3) of the Covenant. However, according to the Report of the Office of the United Nations High Commissioner for Human Rights, internet shutdowns generally do not meet those requirements, particularly the proportionality prong.[20]
After applying the factors from Article 19(3), the internet shutdowns in Iran are a human rights violation. First, there is no domestic or international law that legitimizes Iran’s government to sever telecommunications whenever deemed pleasurable. Second, Iran’s government lacks “legitimate aim” in the internet shutdowns. The internet shutdowns are deployed as a tool to silence political unrest and allow mass killings of protesters without international knowledge. Likewise, internet shutdowns restrict the spread of media and communications inside of Iran, and limit citizens from organizing anti-government protests. Targeted shutdowns of communications may be justifiable only in exceptional circumstances, for example, as a last resort when necessary to achieve a legitimate aim. However, government impunity from committing human rights atrocities is far from legitimate.
Masha Amini’s death is the catalyst for Iran’s revolution. For the first time, the people are united to fervently fight to free Iran from the shambles of the Islamic Republic.
[1] Miriam Berger, What’s behind the Protests in Iran?, The Washington Post (Sep. 23, 2022 at 11:52 AM), https://www.washingtonpost.com/world/2022/09/22/iran-protests-mahsa-amini-death/.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1966).
[7] Id.
[8] Id.
[9] Iran: Islamic Penal Code. (Sep. 21, 2022), https://www.refworld.org/docid/518a19404.html#:~:text=Article%201%2D%20The%20Islamic%20Penal,rules%20that%20apply%20to%20them.
[10] Nadeen Ebrahim, Iran’s Morality Police Have Terrorized Women for Decades. Who Are They?, CNN (Sep. 21, 2022 at 9:22 AM), https://www.cnn.com/2022/09/21/middleeast/iran-morality-police-mime-intl/index.html.
[11] Rep. of the Special Rapporteur, Extra-custodial Use of Force and the Prohibition of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, at 5—6, U.N. Doc. A/72/178 (July 20, 2017).
[12] Id.
[13] Id.
[14] Id. at 7.
[15] Id.
[16] Id.
[17] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
[18] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1966).
[19] Id.
[20] Rep. of the OHCHR at 3, U.N. A/HRC/50/55 (May 13, 2022).
