It's hard to believe that stoning would still be a concern in the 21st century, but the sentence of death by stoning against Sakineh Mohammadi Ashtiani, handed down by an Iranian court, has become a global cause célèbre. Widespread outrage has saved her from that fate, though she could still face execution by hanging. We should not forget, however, that hers is not the only case, and that so long as stoning is permissible under Iran's regressive interpretation of sharia, or allowed in other countries, it won't be the last.
Other barbaric punishments - flogging, amputations and crucifixion - are also of great concern. Canada has played a leading role in condemning such practices through its sponsorship of UN resolutions on Iran's human-rights violations. But it is time to consider a bold, new measure to declare, once and for all, that the mere availability of such punishments in Iran's Criminal Code is contrary to international law. In particular, Canada should urge the UN General Assembly to request an Advisory Opinion on this question from the International Court of Justice at The Hague.
Article 7 of the International Covenant on Civil and Political Rights, to which Iran is a signatory, provides that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The UN Human Rights Committee has long held that this prohibition "must extend to corporal punishment." Most countries with an Islamic tradition - from Morocco to Indonesia - have interpreted sharia in light of modern circumstances and rejected such practices. Unlike Saudi Arabia, which has always applied a strict interpretation of sharia, Iran initially abolished these medieval punishments shortly after the adoption of the reformist constitution of 1906. They were reintroduced in 1983 by the newly established Islamic Republic, based on extremist interpretations of sharia, which they declared to be a triumph against Western domination.
Those who reintroduced such punishments to reclaim the past were evidently ignorant of European history. For centuries, the law of retribution - or qesas as it is called in sharia - had its equivalent in the Judeo-Christian tradition of "an eye for an eye," or lex talionis. These horrific punishments - practised in France, Germany and other European countries - included impalement, dismemberment, decapitation, boiling, crushing and, of course, stoning. By the 19th century, they were abolished as modern concepts of criminal justice took hold.
The case is no different in most Islamic countries as they attempt to reconcile their traditions with contemporary values and realities. Eminent clerics in Iran, such as Grand Ayatollah Youssef Sanei, have issued fatwas prohibiting stoning and amputations. This dispels the myth that there is only a single, uncontested interpretation of the sharia. In recent years, Iranian human-rights advocates achieved a judicial moratorium on such sentences and made progress in their calls for removing such punishments from the criminal code.
But under Iran's current leadership, extremists who fear a more humane interpretation of sharia have sought to enforce these punishments, which remain legal. The only solution? Abolish such measures once and for all, and enlist the weight of global moral opinion to achieve this objective.
UN resolutions on Iran's human-rights violations have specifically condemned flogging, amputations and stoning, as torture and cruel punishment. But beyond such protestations, it is time to get an authoritative decision from the world court that specifically calls on Iran and other countries to abolish such punishments from their criminal laws. The court has jurisdiction to render opinions on such legal questions at the request of UN organs and agencies. It has done so on issues ranging from the legality of nuclear weapons to the construction of Israel's security wall in the Palestinian territories.
Canadians have had first-hand experience with Iran's human-rights abuses. The murder of Montreal photojournalist Zahra Kazemi in 2003, the imprisonment of University of Toronto Professor Ramin Jahanbegloo in 2006 and now the possible death sentence against Toronto blogger Hossein Derakhshan, has given the public an intimate glimpse of these horrors. By invoking the world court's authority, Canada could take this struggle to an important next step.
In addition to the Western bloc, the Islamic countries (most of which have abolished cruel punishments) should be encouraged to co-sponsor the resolution.
The message must be that human rights are a universal cause. The heroic struggle of the Iranian people for a just society should leave no doubt that human rights are a common aspiration among all nations - an aspiration that transcends differences in culture and religion.
Shirin Ebadi is an Iranian human-rights lawyer and recipient of the 2003 Nobel Peace Prize. Payam Akhavan is professor of international law at McGill University and co-founder of the Iran Human Rights Documentation Centre.