On October 12, a Revolutionary Court judge handed down heavy prison sentences to two poets, sending a clear message that the Iranian regime has no intention of easing up on its repressive treatment of dissenting voices. Taking advantage of vague laws and deliberately refusing to contextualize some forms of free speech and artistic expression, these judges are building on an already hostile climate for open debate in Iran.

Judge Moghiseh, well known for being behind some of Iran’s harshest sentences in Iran, handed down the sentences in Branch 28 of Tehran’s Revolutionary Court.

He sentenced the poets, Fatemeh Ekhtesari and Mehdi Mousavi, to 11 years and six months in prison and nine years and six months in prison respectively. Both poets were also sentenced to receive 99 lashes.

Ekhtesari was given a seven-year prison sentence for insulting the sacred, three years for publishing unauthorized content online and one and a half years for propaganda against the state. Mousavi was sentenced to six years in prison for insulting the sacred, and a further three years for possessing tear gas and keeping it at his residence. Both were given flogging sentences for shaking hands with a na-mahram, or stranger of the opposite sex. Although there is no law that says it is illegal for unrelated men and women to shake hands, some judges have deliberately and arbitrarily interpreted aspects of Iranian law (specifically, Articles 637 and 638) so that outspoken individuals can be punished on these grounds.

Amir Raeesian, Ekhtesari and Mousavi’s lawyer, has challenged the verdict: “Nowhere in their poetry are there any words or subject [matter] that could represent insulting the sacred. All books by these two poets were published with permits issued by the Ministry of Culture and Islamic Guidance.” Raeesian also challenged the charge against Mousavi of possessing tear gas, stating that his client owned a self-defense spray and had obtained the required permit to keep it at his house. He further challenged Ekhtesari being charged with “propaganda against the state,” stating that there was no evidence for the charge.

Hardliner media have attacked both poets in the past, particularly because Shahin Najafi, the controversial Iranian singer/rapper based in Germany who received a death fatwa in 2012, has included their poems in his musical repertoire.  Various religious reformers, including Mohsen Kadivar and Hassan Yousefi Eshkevari, have challenged the death fatwa against Shahin Najafi. In an open letter, they argued that even though there can be restrictions on insulting religious sanctities under international human rights law on grounds of hate speech — as stipulated in Article 20 of the International Covenant in Civil and Political Rights — punishement for it should be in line with international human rights law when incorporated into domestic law — something Iranian judicial authorities have failed to do.  

The Right to Insult?

So is there such a thing as the right to insult under International Human Rights Law?

The right to freedom of expression is among the most controversial of human rights, not only under Iranian and Islamic law, but also under international human rights law. Controversies over cartoons published by French satirical magazine Charlie Hebdo (spanning nearly a decade, from 2006 to 2015), the cartoons satirizing the Prophet Mohammad published in Danish newspaper Jyllands-Posten (2005), and the anti-Islam short film The Innocence of Muslims (the film was controversial when released in 2012, and generated fresh controversy in 2015) have led to some of the most heated and divisive debates over the right to freedom of expression in recent years. Because the depictions of the Prophet Muhammad and Islam in these and other artistic or journalistic contexts have been regarded by many to be offensive, governments, pressure groups and individuals have placed them at the center of the debate over the limits of free expression. The United Nations Human Rights Committee and the European Court of Human Rights (ECHR) have both dealt with numerous cases in this regard.

The right to freedom of expression is not absolute under international human rights law. According to Article 19 (3) of the International Covenant on Civil and political Rights, it can be restricted if it breaches the rights and reputation of others, poses a threat to “public order, or to public health or morals,” or to national security, or if it constitutes hate speech or pro-war propaganda. As a result, a right to insult does not exist under international human rights law, contrary to arguments set out by some campaigners.

But it is important to differentiate between insult and criticism. Not only is criticism permitted in democratic societies, but is also considered to be a necessary part of protecting and ensuring the sustainability of healthy democracies. As Karmran Hashemi points out in his book Religious Legal Traditions, International Human Rights Law and Muslim States, under international human rights law, criticism is distinguished from insult by assessing the way in which the criticism is delivered — and not by assessing its content. This is well demonstrated in the case of Wingrove v. the United Kingdom. In 1996, British authorities refused to grant a distribution certificate for a video produced by Nigel Wingrove’s horror film company. The British Board of Film Classification denied the certificate for the video Visions of Ecstasy, which depicted a crucified Jesus Christ engaging in sexual acts, on grounds that it was blasphemous. Wingrove appealed to the ECHR, which ruled in favour of the UK, stating that it did not consider the denial of the distribution certificate a breach of the applicant’s right to freedom of expression.

“Blasphemy by its very nature has no precise legal definition,” the ruling stated “National authorities must be afforded a degree of flexibility in assessing whether particular facts fall within the definition,” the ECHR reasoned. “Because there is no attempt, in the Board's view, to explore the meaning of the imagery beyond engaging the viewer in a voyeuristic erotic experience, the Board considers that the public distribution of such a video work would outrage and insult the feelings of believing Christians…” The ECHR made it clear that the law should not prohibit expression of views hostile to Christianity, but rather should only control the manner in which these views are advocated: “It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves."

Hence, even if the content of the poems are hostile to the sacred of Islam, as long as it is expressed in a decent and temperate language, it cannot be considered insult and a limitation to freedom of expression under international human rights law.

The Iran Context

“Insulting the religious sanctities” — one of the most common charges used against journalists and activists in Iran, including activists who use art as part of their campaigns — is referred to in Article 513 of Iran’s Penal Code. According to the article,“Whoever insults the sacred of Islam or any of the Prophets or the Imāms, or Fatimah, if the insult contains sabb[insulting the prophet Mohammad], he or she will be sentenced to execution, or else be punished with between one to five years of imprisonment.”

Although the prohibition of insult does not go against international human rights law per se, since  Iran’s judiciary does not acknowledge the distinction between insult and criticism, judges have not only made the article problematic under Iranian law, but they have also used the provision to suppress dissent — to the extent that, on a number of occasions, the smallest criticism of a state’s policy or a discriminatory law has been considered an insult to the religious sanctities. Moreover, since the scope of religious sanctities has not specifically been defined within Iran’s Penal Code, judges have allowed themselves such wide discretion to include any criticism of the state’s policy or a discriminatory law as an insult to the religious sanctities of Islam.

But Ambeyi Ligabo, the United Nations special rapporteur on freedom of opinion and expression, has said that “prison terms and floggings are clearly disproportionate punishments for abuse of freedom of expression.” Under international human rights law, the punishment Iran’s penal code metes out for insulting Islam cannot be justified based on the necessity and proportionality element required by international human rights law.

Even if Iran’s judges can argue successfully that the writing of Fatemeh Ekhtesari and Mehdi Mousavi insults Islam, they cannot, under international human rights law, hand down such harsh sentences. Even if their poems are against the religious sanctities of Islam, if these poems are not expressed in a manner of hostility — and there is no evidence that they are — they cannot be considered as insult, yet alone receive such harsh punishments.

But this is nothing new, and Iran’s judicial authorities are well known for ignoring parts of international human rights law when it suits them, despite being signatories to these frameworks and mechanisms. This is not the first time the charge of insulting religious sanctities has been used to suppress freedom of expression in Iran and, until Iranian judges apply the important distinction between criticism and insult, it will not be the last.