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VICTIM–PERPETRATOR RECONCILIATION AGREEMENTS:WHAT CAN MUSLIM-MAJORITY JURISDICTIONS AND THE PRC LEARN FROM EACH OTHER?

Published online by Cambridge University Press:  06 October 2017

Daniel Pascoe  and
Michelle Miao
Daniel Pascoe
Affiliation:
Assistant Professor, School of Law, City University of Hong Kong, dcpascoe@cityu.edu.hk
Michelle Miao
Affiliation:
Assistant Professor, Faculty of Law, The Chinese University of Hong Kong, michellemiao@cuhk.edu.hk
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Abstract

As States that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic law and the People's Republic of China share a crucial commonality: their frequent use of victim–perpetrator reconciliation agreements to remove convicted murderers from the threat of execution. In both cases, rather than a prisoner's last chance at escaping execution being recourse to executive clemency, victim–perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the State concerned to reduce execution numbers without formally limiting the death penalty's scope in law. Utilizing the functionalist approach of comparative law methodology, this article compares the 13 death penalty retentionist nations that have incorporated Islamic law principles into their positive criminal law with the People's Republic of China, as to the functions underpinning victim–perpetrator reconciliation agreements in death penalty cases.

Keywords

capital punishmentChinaclemencycomparative lawdeath penaltyIslamic lawpardonPRC lawreconciliation agreements

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Type
Articles
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International & Comparative Law Quarterly , Volume 66 , Issue 4 , October 2017 , pp. 963 - 989
Copyright
Copyright © British Institute of International and Comparative Law 2017 

I. INTRODUCTION

As States that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic law and the People's Republic of China (PRC) share a crucial commonality: their frequent use of victim–perpetrator reconciliation agreements to remove from convicted murderers the threat of execution. In both cases, rather than a prisoner's last chance at escaping execution being recourse to the executive clemency procedure mandated for capital crimes by Article 6(4) of the International Covenant on Civil and Political Rights (ICCPR), victim–perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the State concerned to reduce execution numbers without formally limiting the death penalty's scope in law. This article compares the 13 death penalty retentionist nations that have incorporated Islamic law principles into their positive criminal lawFootnote 1 with the PRC, as to the functions underpinning these victim–perpetrator reconciliation agreements. In doing so, the authors adopt the functionalist approach of comparative law methodology as a means of drawing mutually-reinforcing lessons from two otherwise very different legal institutions: one deriving from religious texts and one secular.

II. A FUNCTIONALIST APPROACH

Simply stated, functionalism within comparative law methodology incorporates the following steps: a) identifying a similar problem faced by different legal systems; b) documenting the different legal measures taken by States to remedy this problem; and c) comparing and contrasting those remedial measures, before explaining the reasons for similarity and difference.Footnote 2 As Zweigert and Kötz famously stated, ‘only rules which perform the same function and address the same real problem … can profitably be compared’.Footnote 3 In this manner, even the laws of divergent legal ‘families’ such as socialist law, civil law, religious law and common law can be likened.Footnote 4 Crucially, in performing this exercise, comparativists must consider not only the original intended function of the legal institution concerned, but also the ‘latent’ functions defined by its consequences: the originally unintended functions of the law.Footnote 5

Reflecting on requirement a), above, in the 13 actively retentionist Muslim-majority jurisdictions under studyFootnote 6 and in the PRC, victim–perpetrator reconciliation agreements presently perform the following three common functions:

  1. 1. Filling the legal vacuum created by the lack of individualized executive clemency procedures;Footnote 7

  2. 2. Providing the State with a means of controlling excessive punitiveness in the criminal justice system, as reflected by the number of annual executions;Footnote 8 and

  3. 3. Providing financial compensation to a murder victim's family, for pain and suffering and in lieu of lost earning capacity.Footnote 9

In the case of compensation payments for intentional homicide in Muslim-majority jurisdictions (diya), only the third of these common justifications (compensating victims) was originally intended, the first two functions having developed more recently as latent consequences, with the advent of modern nation-States and their declining use of capital punishment to preserve social order. Diya actually originated as the religious codification of an ancient Arab tribal practice designed to prevent the escalation of conflict and to compensate the aggrieved tribe for the loss or injury of one of its members.Footnote 10 However, with the modern State's monopoly of coercive force through the police, military, prisons and of course the judicial death penalty, it is debatable whether the prevention of intertribal conflict and revenge still subsists as one of diya’s important modern functions.Footnote 11 For Chinese Victim-Reconciliation Agreements (VRAs) on the other hand, the latter two functions identified (controlling punitiveness and compensation) were those originally envisaged by PRC judicial reformers in the 2000s.Footnote 12 The first listed function (accounting for clemency) arose as an unintended consequence after VRAs became widespread in Chinese capital cases from 2007.Footnote 13 Altogether, regardless of their originally intended roles, these are the three common functions that both diya and VRAs now share, thereby demonstrating the institutions’ aptness for comparison.Footnote 14

This article explores the similarities and differences in the approaches taken in the PRC and in 13 Muslim-majority nations in promoting these three functional goals (executive clemency, leniency, and compensation) since 2007, when VRAs became common in PRC murder cases. After initially outlining the salient features of both diya and VRAs, based upon this comparison, at the end of the article we suggest possible improvements deriving from the approach of the ‘other’ system,Footnote 15 in order to best fulfil the three common functions identified above. As Samuel describes, one of the great advantages of functionalism as a methodology is that it

allows the comparatist to compare rules in order to determine which out of several different rules having the same purpose is the better solution to the problem that the rules address. Functionalism promises an evaluative method – the search for a ‘better solution’[.]Footnote 16

III. DIYA IN ACTIVELY RETENTIONIST STATES

Diya (also spelt diyya, diyah, dia or diyeh) is the payment of compensation under Islamic law by the perpetrator of a serious crime against the person, in order to avoid retaliation in kind. Such retaliation may be authorized by Sharia courts as qisas (retribution), albeit carried out by the State rather than the victim.Footnote 17 As noted above, diya has its historical origins in the prevention of blood feuds in pre-Islamic tribal societies, and was later incorporated into the Quran and Sunnah.Footnote 18

For the purposes of comparison with its Chinese equivalent, in this article we are only concerned with the application of diya in cases of intentional killing (murder). However, retaliation in kind is also possible under Islamic law for non-fatal bodily injury,Footnote 19 as is the payment of diya available for unintentional killing and unintentional bodily harm.Footnote 20 Under classical Sharia doctrine, relief from coercive punishment through diya is restricted to serious offences against the person and is thus incapable of being applied to hudud crimes with mandatory penalties (including death), such as theft, highway robbery, drinking alcohol, apostasy, illicit sexual relations, and allegations of unchastity.Footnote 21 Scholars across the various schools of Islamic law jurisprudence dispute which of these offences should properly be classified as hudud, and whether or not any can be pardoned by the State, given they are crimes against Islam itself.Footnote 22 Tazir offences, a third category of offences with discretionary punishments that may also extend to the death penalty, may be pardoned by the ruler (head of State) but not by victims.Footnote 23

Returning to the qisas crime of murder, only the victim's heirs may choose to remit punishment, rather than the State.Footnote 24 Through paying diya, the perpetrator escapes the retaliatory punishment of death, while the family of the victim that forgoes retribution gains in standing and in the afterlife,Footnote 25 as well as the monetary compensation itself. In modern criminal justice systems that have incorporated Sharia into their positive criminal law, diya as a pecuniary response to murder is generally supported by the State, as would be done for a settlement in a civil action, instead of the aggrieved party fully enforcing the civil right in the courts.Footnote 26 The price of diya, at least as a starting point, is set under classical Sharia as the value of 100 camels for a free Muslim male,Footnote 27 being reduced if the victim was a woman, a non-Muslim, or a slave, with differing amounts set under the schools of Islamic law jurisprudence.Footnote 28 Diya can be paid by the perpetrator himself, his heirs or family, or else the perpetrator's neighbours or tribe.Footnote 29 As such, the jurist MC Bassiouni has observed that: ‘The principle of Diyya … embodies a concept of collective responsibility.’Footnote 30

One controversy that arises within the jurisprudential literature is whether accepting the payment itself abrogates the punishment (and forms the ‘pardon’), or else whether accepting payment is a separate issue following on from forgiveness through the award of a pardon by the victim's family.Footnote 31 In the majority of modern-day cases, diya will be paid as a means of removing the sentence of death and avoiding execution, although importantly, it is also possible for the heirs of the victim to refuse to accept diya and instead to remit the offender's punishment as a compassionate act of religious charity, called afw.Footnote 32 Viewing the process as two separate acts—forgiveness/remission, followed by payment—casts the sum as a means of compensation rather than as a coercive punishment such as a fine,Footnote 33 although there remain some influential modern scholars who instead characterize diya as a punitive order designed to deter future crimes.Footnote 34

Nevertheless, as opposed to the historical application of diya and its elucidation within classical Sharia doctrine, in this article our comparative interest extends solely to the application of diya within the positive laws of modern nation-States. As noted earlier, there are 13 present-day jurisdictions in the Middle East (Iran, Saudi Arabia, Yemen, United Arab Emirates (UAE), Kuwait, Bahrain, Jordan), Africa (Sudan, Nigeria,Footnote 35 Somalia,Footnote 36 Libya), and South Asia (Afghanistan, Pakistan) that have chosen to incorporate Sharia into their positive criminal laws,Footnote 37 and which continue to sentence prisoners to death and to carry out the punishment as active retentionists.Footnote 38 All of these jurisdictions retain and continue to use the death penalty as a judicial punishment for murder but concurrently enable the perpetrator to pay a sum of money to the victim's next of kin to escape execution.Footnote 39 Given the evidently diverse range of societies to which it applies, the positive law of diya operates at the intersection of Islamic law doctrine and the colonial legal influences experienced within the jurisdictions listed.Footnote 40

Looking at the State practice in greater detail, depending on the jurisdiction concerned, after a confession or a finding of guilt, a judge will set the default amount of diya, using a fixed (eg Saudi Arabia; Iran; Yemen; Northern Nigerian States) or flexible (eg Pakistan) formula.Footnote 41 However, the final amount of money demanded by the victim's heirs can be privately negotiated between the parties under judicial oversight (a process known as sulh), and may deviate significantly from the judicial starting point.Footnote 42 As discussed above, it is even possible (albeit rare) for the perpetrator to be spared from the death penalty by the victim's heirs without any payment being made, via afw.Footnote 43

The consequences of the payment being accepted or of afw being granted by the victim's next of kin are that the perpetrator will either walk free, or will have to serve a term of imprisonment or endure corporal punishment following a discretionary (tazir) sentence imposed by the judge in lieu of retaliation.Footnote 44 The range of possible alternative sentences across the jurisdictions is wide, reflecting Sharia's doctrinal vacuum in this area.Footnote 45

On the other hand, if the offer of diya is not accepted, then the murderer is liable to be executed by hanging, beheading, or firing squad, depending on the jurisdiction.Footnote 46 Finally, as we elaborate on below, in some jurisdictions an offender who is not able to be reconciled with the victim's family is still eligible to receive clemency from the head of State, or at least a stay of execution.

IV. VICTIM RECONCILIATION AGREEMENTS IN THE PRC

The year 2007 heralded an era of capital punishment reform in the People's Republic of China, the goals of which were to ‘execute fewer’ and ‘execute with caution’.Footnote 47 Victim–perpetrator Reconciliation Agreements in capital cases were initially intended to facilitate these aims: to punish better and to punish leniently, as well as to ‘placate family members of victims, leading to the “social” harmony that President Hu Jintao first articulated in 2004’.Footnote 48 This forms both the backdrop to, and the deeper cause for, the new ascendency of reconciliation agreements between victims' families and capital defendants after 2007, although as Fu notes, VRAs may have a longer history in Chinese capital cases.Footnote 49

In the PRC, death sentences imposed at first instance by the municipal-level Intermediate People's Courts may be appealed to the Provincial Higher People's Courts, and since 2007, each death sentence that remains in place is automatically reviewed by the Supreme People's Court (SPC) in Beijing.Footnote 50 Thereafter, there is no political appeal available to the head of State or government, unlike nearly every other retentionist jurisdiction,Footnote 51 although Articles 67(17) and 80 of the PRC Constitution 1982 together enable the State President to declare a ‘special amnesty’ as a means of releasing prisoners, on advice from the National People's Congress (the Chinese legislature) and its Standing Committee.

In this context, since 2007, Chinese judges have increasingly been prepared to use their sentencing discretion to impose ‘suspended’ death sentences if the victim's family and the perpetrator come to a financial settlement and the perpetrator expresses contrition for the crime.Footnote 52 Authorized under Article 48 of the Chinese Criminal Law 1997, a suspended death sentence means that the condemned prisoner's sentence is commuted to life or 25 years’ imprisonment, contingent upon the prisoner not committing a serious crime in prison during the first two years of the sentence, which forms the ‘probation’ period. Empirical research suggests that over 95 per cent of suspended death sentences do not result in the prisoner's execution.Footnote 53 Therefore, a suspended death sentence (although still classified as capital punishment under Chinese law) essentially constitutes a long-term or life sentence of imprisonment.Footnote 54

The VRA operates as a tool to guide sentencing discretion at trial,Footnote 55 alongside other mitigating factors such as voluntary surrender and providing information to police,Footnote 56 age, mental capacity and disability.Footnote 57 Importantly however, reconciliation agreements in capital cases are not yet legislatively recognized: criminal reconciliation (xingshi hejie) has only received legislative sanction since 2012 for minor civil disputes and offences of negligence, neither of which are capital offences.Footnote 58

As for the mechanics, the VRA is an arrangement negotiated by all three parties to a capital sentencing proceeding—the court, which considers commuting the otherwise final punishment to a suspended death sentence, the victim's family which receives a sum of monetary compensation in exchange for accepting the lighter sentencing, and the defendant, who offers pecuniary restitution (alongside an apology, on most occasions).Footnote 59 Weatherly and Pittam describe the process in detail, as it applies to both capital and non-capital crimes:

the offender and the victim (or the victim's family, if the victim has been killed) participate in a series of ‘criminal reconciliation meetings’ presided over by the officiating judge. During those meetings, the parties are expected to resolve their differences through discussion. If an agreement on compensation can be reached, the judge will usually decide to commute the offender's death sentence [from one of immediate execution to a suspended death sentence]. The offender is also expected to exhibit a sufficient level of contrition for the crime committed.Footnote 60

Most intriguing in this process is that, in addition to the private parties—the victim's family and the capital defendant—the court is also an active player in this process of communication and negotiation. Trial courts in the PRC, encouraged by the SPC,Footnote 61 have keenly fostered the twin goals of punitive parsimony and victim restitution through the growing use of VRAs.

V. EXECUTIVE CLEMENCY IN RETENTIONIST LEGAL SYSTEMS

Before moving to the operative differences between the Islamic law and Chinese reconciliation procedures, in this section we clarify the significance of executive clemency for the first of the three functional justifications for victim–perpetrator reconciliation agreements set out above.

In legal systems that retain the death penalty, once a defendant is sentenced to death by a court of law and has exhausted all available judicial appeals, his or her last remaining procedural hope is usually to petition for commutation or pardon from the head of State, head of government, or provincial political leader.Footnote 62 The clemency power has ancient origins, deriving from the sovereign power of absolute monarchs to remit punishment,Footnote 63 alongside the powers to wage war, sign international treaties, establish diplomatic relations,Footnote 64 and to enforce the death penalty itself.Footnote 65 However, the ability to relieve a prisoner from deadly punishment lawfully imposed nonetheless subsists in modern constitutional monarchies and republics. In modern criminal justice usage, the term ‘clemency’ usually denotes the conversion of a sentence of death into a sentence of imprisonment, while a ‘pardon’ or ‘unconditional pardon’ means that the decision-maker not only halts the execution of the death sentence, but also grants the recipient an unconditional release from prison altogether,Footnote 66 sometimes accompanied by the complete erasure of criminal responsibility.Footnote 67 Throughout the remainder of this article, we use the term ‘clemency’ to include both ‘pardon’ and ‘commutation’, with the important qualification that grants of clemency can only be gifted on a case-by-case basis, unlike a mass grant of amnesty for example. In capital cases, an ‘amnesty’ is a grant of commutation or pardon to an entire class of prisoners without detailed consideration of individual circumstances, promulgated by executive decree or by legislation.Footnote 68

Despite its origins as a purely political power attaching to and being a reflection of sovereignty,Footnote 69 clemency has gradually evolved in order to address particular problems in modern systems of criminal justice. Although the ascent of the ‘administrative State’, with its judicial methods of correcting injustice, has blunted its importance as a fail-safe against excessive and erroneous punishment,Footnote 70 clemency remains an important safeguard in capital cases, because of the broad range of reasons that a death sentence can be abrogated by executive action:

  • • clemency operates as a final procedural level of ‘appeal’ for defendants seeking to preserve their own lives;Footnote 71

  • • clemency allows for retributivist leniency from the executive when the prisoner's criminal conviction or severity of punishment may be undeserved;Footnote 72 and,

  • • clemency is a means of taking into account extra-legal and post-arrest factors in the decision as to whether or not to carry out a death sentence. Such factors may relate to good deeds carried out by the prisoner him or herself, or else purely utilitarian considerations.Footnote 73

The vast majority of States worldwide (both death penalty retentionist and abolitionist States) allow for clemency within national constitutions, legislation, or by convention.Footnote 74 Indeed, the right to have a death sentence considered by the executive for clemency may have entered customary international law, so widely is it exercised.Footnote 75

However, there are a handful of States that run counter to this trend. The PRC,Footnote 76 together with at least six other actively retentionist nations that have incorporated Sharia into their positive criminal law to varying extents (UAE, Yemen, Iran, Sudan, Libya and Saudi Arabia), do not allow for a prisoner sentenced to death for murder to apply for or be individually considered for clemency by the executive political authority.Footnote 77 For political and resource-allocation reasons (in the case of China)Footnote 78 and for doctrinal religious reasons (in the six Muslim-majority jurisdictions) those convicted of murder do not have the right to have their cases individually considered for executive clemency. Instead, victim–perpetrator agreements, such as diya and VRAs, operate as partial functional replacements for executive clemency.

VI. VICTIM–PERPETRATOR AGREEMENTS AS FUNCTIONAL REPLACEMENTS FOR CLEMENCY?

At the outset of this article, filling the executive clemency ‘vacuum’ was identified as one of three functions purportedly played by both diya agreements and VRAs. Moreover, in the preceding section, we described the multifaceted role played by executive clemency in death penalty systems. In retentionist jurisdictions where executive clemency is completely absent, do victim–perpetrator agreements play all of the roles identified, or are they imperfect functional replacements? Moreover, is there any difference between the way in which diya agreements and VRAs ‘replace’ clemency in their respective States of origin?

First of all, important national differences exist in the formal relationship between the victim–perpetrator agreement and the executive clemency mechanism, if the latter exists. In the Chinese case, although the Standing Committee of the National People's Congress can authorize the President to grant a ‘special amnesty’ (teshe) to particular prisoners via Articles 67(17) and 80 of the PRC's present (1982) Constitution, this procedure was not utilized at all between 1975 to 2015, with all grants prior to 1975 being made to release ‘counter-revolutionaries’ or ‘war criminals’—in other words, opponents of the Communist regime.Footnote 79 Eschewing the ICCPR's ‘right to seek’ pardon or commutation of a death sentence in Article 6(4), the Chinese President's issuing of ‘special amnesty’ has never followed an individualized petition process.Footnote 80 Moreover, the power of the PRC Chairman to grant a ‘general amnesty’ (dashe) on legislative advice was present within the 1954 Constitution, but was never used,Footnote 81 and was omitted from both the 1975 and 1982 documents.

The implication is that since they were first granted in 1959,Footnote 82 ‘special amnesties’ have historically fulfilled the role traditionally played by legislative or executive amnesties in other jurisdictions, whereby prisoners are released en masse according to predetermined categories, such as the crime committed, the age of the prisoner, or previous national service. Following seven special amnesties granted exclusively to counter-revolutionaries or war criminals between 1960 to 1975, in 2015 the first special amnesty for 40 years was applied to prisoners who were under the age of 18 at the time of their crime, disabled elderly prisoners (over age 75), or war veterans.Footnote 83 According to the Dui Hua Foundation, 95 per cent of the 31,527 prisoners granted amnesty in 2015 were juveniles at the time of their offence.Footnote 84 Significantly, prisoners facing capital punishment were excluded from the scope of the amnesty in 2015,Footnote 85 as had been the case in all previous grants.Footnote 86 The result is that lenient executive discretion in capital cases, while technically possible via the PRC Constitution in the form of a special amnesty, has never been exercised in contemporary Chinese penal history. Moreover, the ability to petition the head of State directly for clemency, informally available within imperial China,Footnote 87 did not survive the establishment of the PRC as a socialist State in 1949. Until the rise of VRAs from the mid-2000s, no quasi-legal institution allowed capital defendants the chance to plead for a lesser punishment from the executive branch of government.

As for diya, defining the relationship between clemency and victim–perpetrator reconciliation agreements depends upon which jurisdiction is being considered. The UAE, Yemen, Iran, Sudan, Libya and Saudi Arabia are the six actively retentionist jurisdictions where a prisoner sentenced to death for murder does not have individual recourse to clemency from the relevant head of State. In these countries the only extrajudicial means of commuting the death sentence are by paying diya to, or receiving afw from, the victim's family.Footnote 88 Unlike at least four other Muslim-majority jurisdictions that utilize diya in murder cases yet concurrently allow for executive clemency to override the victims’ retributive wishes (Kuwait, Pakistan, Bahrain, and Nigeria),Footnote 89 in this set of six jurisdictions the formal post-conviction role of the executive is negligible.Footnote 90

Retentionist States incorporating Sharia into their positive criminal law face a difficult choice between failing to allow for ‘secular’ clemency in murder cases (thereby contravening Article 6(4) of the ICCPR as State parties or under customary international law),Footnote 91 or failing to properly follow classical Sharia doctrine. Islamic law holds that only the victim's family can forgive those accused of qisas offences, and (within the Hanafi jurisprudential school at least) only God can forgive those convicted of hudud crimes, rather than the ruler (the head of State).Footnote 92 In the retentionist Muslim-majority States favouring the ICCPR-compliant approach, the murder convict therefore possesses two quasi-legal options to downgrade the death sentence: first via diya or afw, and then with clemency granted by the State President or Monarch. However, as indicated above, these jurisdictions are in the minority. Even within three of the four Muslim-majority jurisdictions under study where executive clemency remains formally available (Kuwait, Bahrain and Pakistan), it appears to be rarely exercised in murder cases,Footnote 93 with political authorities preferring to leave the victim's heirs as ultimate arbiters over life and death.

Given that individualized clemency has never been practised in the PRC, have VRAs filled the breach since 2007? Moreover, does diya perform some or all of the roles of executive clemency in both ICCPR-compliant and non-compliant States? We noted above that when employing the functionalist approach to comparative law, not only should the law's original functions be taken into account, but also any unintended consequences: the law's latent functions. In all the jurisdictions under study, although not perhaps intended, victim–perpetrator agreements appear to fill the functional lacunae left by a lack of executive clemency, at least to a certain extent.

We begin by looking at what national governments have said about the matter, together with the views of academic commentators. Diya, with ancient tribal origins predating the rise of modern sovereign States,Footnote 94 was clearly not created or codified in order to fill the legal lacunae created by the lack of executive clemency in murder cases. However, its ongoing retention as the sole means of extrajudicially commuting a death sentence in at least six jurisdictions has been recently justified in this way by the governments of Saudi Arabia, Libya and Sudan during Universal Periodic Review before the United Nation's Human Rights Council.Footnote 95 Likewise, Roger Hood has argued that diya now ‘operates in place of commutation where the offender has been convicted of murder’.Footnote 96 Moreover, in 1998, Mary Carter Duncan opined that Saudi Arabia's diya practice was that jurisdiction's form of pardon.Footnote 97

As for Chinese VRAs, although their conceptual ancestry can be traced back to mediation in imperial times,Footnote 98 their State-supported incarnation in death penalty cases after 2007 arguably represents a means of ‘taking clemency private’. Absent a constitutional executive clemency procedure to impart leniency on a case-by-case basis, Johnson and Miao find VRAs to be one of the five means of ‘elite-led reconfiguration of Chinese capital punishment’, alongside the legislature reducing capital offence numbers, replacing shooting with lethal injection as a method of execution, recentralizing judicial review in the SPC, and encouraging courts to issue ‘suspended’ death sentences.Footnote 99

Next, considering the institutions from the defendants’ point of view, in both the Chinese and the diya cases, the victim–perpetrator agreement is equivalent to a quasi-legal right of ‘appeal’ against the death sentence, as is the right to seek executive pardon or commutation under ICCPR Article 6(4), albeit that the ‘appeal’ takes the form of an attempt to negotiate with the bereaved family members. Nonetheless, the prisoner still possesses a degree of agency. Indeed, if a wider frame of reference is taken, and executive clemency is considered as a form of State-sanctioned quasi-legal or extrajudicial discretionary leniency sought by a condemned prisoner, then diya and VRAs more closely resemble clemency.Footnote 100 Although in the case of VRAs and diya the decision to relieve the offender of the death sentence is not that of the prevailing political authority, it certainly carries State backing. While VRAs in capital cases have not yet received legislative backing at the central government level,Footnote 101 supporters of VRAs since the mid-2000s have included individual judges of China's highest judicial organ, the SPC,Footnote 102 together with the Supreme People's Procuratorate.Footnote 103 Trevaskes has observed that:

The SPC … began issuing ‘notices’, ‘opinions’ and ‘judicial interpretations’ in late 2006 and early 2007, strongly urging lower courts to choose ‘life’ (suspended death) over death (immediate execution) for homicide offenders who had killed as a result of domestic or neighbourhood disputes and who were willing to compensate their victims adequately [although the practice has since been extended to premeditated murder outside of the domestic setting]. Courts were urged where possible not to hand down immediate executions, but to give a suspended sentence when the offender surrendered to police, was extremely remorseful, and provided immediate financial compensation to the victim's family. The expectation was that the lower courts could take advantage of China's vague and amorphous death penalty legislation.Footnote 104

Likewise, although diya is ostensibly a private transaction between the victim's family and the perpetrator, where it is practised in modern legal systems in the Middle East, North Africa and South Asia, the payment of diya is explicitly authorized and encouraged by the State. Across the 13 Muslim-majority nations under study, the State's preference for diya or afw as means of resolving a crime of intentional homicide is evinced by factors such as the pressure put on relatives by judges, members of the royal family and the State functionaries to accept the offer of payment,Footnote 105 the official confirmation of the agreement by the judiciary in some jurisdictions,Footnote 106 the State's replacement role as prosecutor and negotiating party where the murder victim has no next of kin,Footnote 107 the fact that the payment can be made indirectly to the State, which is then responsible for distributing the money to the victim's family,Footnote 108 or even the State treasury paying the diya itself, where the perpetrator cannot do so.Footnote 109

Nevertheless, other than providing defendants with a quasi-legal ‘appeal’ route from execution to a lesser sentence, there are clear limits on the extent to which victim–perpetrator reconciliation agreements properly subsume the functions of clemency. Looking at the list of roles that clemency plays within modern criminal justice systems, neither VRAs nor diya provide for discretionary leniency on the basis of retributivist justifications: they do not mitigate a death sentence on the basis that the punishment imposed is underserved or disproportionate.Footnote 110

As we explain in greater detail below, in both the retentionist diya States and the PRC, victim–perpetrator agreements are primarily means of compensating murder victims’ families, and tools for the government to dilute excessive punitiveness within the criminal justice system. These goals do echo some of the redemptionist or utilitarian reasons that executive clemency achieves in retentionist legal systems. There are worldwide precedents for ‘secular’ clemency being granted by the executive following a perpetrator's payment to the victim's family in a murder case,Footnote 111 and ample occasions on which clemency has been used to reduce the total number of executions, reflecting official ambivalence over capital punishment.Footnote 112 In these respects at least, VRAs and diya both perform some of the roles attributed to clemency in death penalty retentionist States. Yet given the broad range of reasons why clemency is granted, both remedial systems fall short of being complete and effective substitutes.

VII. COMMON FUNCTIONS: REDUCING PUNITIVENESS AND COMPENSATING FOR ECONOMIC LOSS

We noted earlier that VRAs are an important component of the Chinese State's rethinking and humanizing of the death penalty system. Along with its cousin, the suspended death sentence, VRAs were expressly brought into Chinese judicial practice as a means of reducing execution numbers.Footnote 113 Looking at the bigger picture, China's ongoing capital punishment reforms are aimed at curbing the excessive punitiveness seen during the ‘Strike Hard’ era of the 1980s and 1990s by reducing the number of death sentences and executions meted out by Chinese courts.Footnote 114 To a certain extent, the VRA is a reconstruction of the conventional penal approach to capital cases from the inside. As promoted by the SPC, one of the VRA's purposes is to provide an alternative means of achieving leniency in the criminal justice system, without altering the system itself by establishing new procedures for executive clemency. The VRA thereby facilitates the reduction of executions at minimum political cost.

Rather than vesting in the national executive part of the judicial power in to determine the ultimate destiny of condemned prisoners, the VRA regime fulfils a leniency-granting function by delegating judicial power to grassroots-level parties who have higher stakes in the capital proceedings. This reform strategy, with no need to challenge populist demands for the ultimate sanction,Footnote 115 wins support from liberal reformers and concurrently earns approval by parties to capital cases (in particular, victims' families, who are sometimes the staunchest opponents of leniency).

At first glance, the origins of diya suggest it has a completely different purpose. The primary justification for diya’s incorporation within the criminal codes of modern Muslim-majority nation States is a religious and textual one: the Quran, Sunnah and the Hadiths require diya to be used.Footnote 116 Yet as with VRAs, in its modern incarnation, diya also acts as a government-sponsored brake on punitive sentiment in Islamic criminal justice systems which shows a more ‘human’ face and provides flexibility in the law's enforcement. Although the choice of whether to pursue qisas, grant afw or accept diya is ultimately the preserve of the victim's family, they are considerably influenced by the State. The preferences of Muslim-majority jurisdictions for diya settlements are based upon the Quran's preference for forgiveness over retribution,Footnote 117 together with a desire to minimize the number of executions carried out in circumstances where there still remains the view that a strict interpretation of Quranic criminal law prevents the outright abolition of the death penalty.Footnote 118 Likewise, in the Chinese context, the court as a government institution reserves a certain degree of control. The court initiates, monitors, and facilitates the development of the reconciliation process. The power granted to the victim's family in shaping the process as well as the outcome of capital sentencing is not absolute.Footnote 119 In both the VRA and diya cases, State influence over murder victim reconciliation reflects a degree of official ambivalence over the rate of executions. Direct and indirect regulation demonstrates a desire to find solutions which do not fundamentally alter the existing system of capital and non-capital crimes, and without relying upon executive clemency to formally and publicly ‘subvert’ the outcome of a finalized judicial process.Footnote 120

The second functional similarity of the institutions is that the VRA and diya systems have a compensatory role, providing financial relief to the family or tribe of a murder victim, the burden of which falls on the perpetrator. Victim–perpetrator agreements largely fulfil the role that criminal restitution orders and tort law for personal injuries perform in Western legal systems,Footnote 121 providing compensation for economic loss and for pain and suffering.Footnote 122 However, unlike these Western remedies, both diya and VRAs embrace collective responsibility. The tribal origins of diya mean that a significant role is played by the perpetrator's family and the broader community in compensating the victim, if the perpetrator is not able to do so him-or herself.Footnote 123 As regards VRAs, given the strong intergenerational support and close contact among family members in Chinese society, the compensation is often provided by the defendant's family rather than the defendant.Footnote 124 Both mechanisms therefore have in-built means of addressing socio-economic inequality, given the life of an indigent defendant can still be spared through family and community connections.

VIII. DIFFERENCES IN APPROACH

We earlier described the way in which the three principal functions played by diya and VRAs are similar: providing those convicted of murder with a quasi-legal means of ‘appealing’ impending punishment in lieu of a right to petition the executive for clemency, providing a means of diluting excess punitivism in order to lower execution rates and to compensate family members for the victim's death and any consequential economic loss. All jurisdictions being studied here achieve these goals by encouraging and facilitating a private agreement between the offender and the victim's family. However, those States which employ diya and VRAs to realize these three policy goals do so through slightly different means.

A. Consequences of the Agreement

A first key difference between diya practice and VRAs concerns the consequences for the offender. In both cases the perpetrator or their associated supporters suffer a financial hardship, although as we have described, with diya it is possible (albeit unlikely) that the victim's family ‘pardons’ the offender without demanding compensation at all. In the case of VRAs, the terms of the agreement may extend beyond strict financial compensation, to include an apology and an expression of remorse,Footnote 125 something usually absent from diya settlements, unless the case is one of pure forgiveness through afw.Footnote 126

Moreover, a VRA does not completely relieve the convicted murderer from the threat of execution. The defendant in a VRA case is still sentenced to death, albeit to a ‘suspended death sentence’, the second harshest punishment on the Chinese penal ladder,Footnote 127 rather than ‘the death penalty with immediate execution’.Footnote 128 At the end of the two-year suspension period, and if the prisoner has not committed any further serious offence whilst in prison, the death sentence may be commuted to life imprisonment or to a fixed-term of imprisonment. As noted above, empirical research suggests that more than 95 per cent of suspended death sentences result in commutation.Footnote 129 In theory, however, a prisoner party to a VRA could part with a large sum in compensation and later be executed.

By contrast, the vast majority of diya agreements definitively reduce a death sentence to something less than death. It has been noted that both Sharia doctrine and the criminal codes of some Muslim-majority nation-States establish that a prisoner whose offer of diya is accepted is still liable to serve a discretionary (tazir) sentence. While in up to eight of the jurisdictions studied this can theoretically extend to death itself (Pakistan, Saudi Arabia, UAE, Somalia, Bahrain, Jordan, Libya and Afghanistan), it is far more common for the initial death sentence to be replaced with sentences of imprisonment and corporal punishment, given the courts’ desire to respect victims’ wishes, and the States’ own preference for reconciliation rather than talionic retribution. In other Muslim-majority States under study, the maximum tazir sentences permitted are life imprisonment (Libya); 15 years (Yemen); 10 years plus a fine (Sudan); 10 years (Iran; Kano and Kastina States, Nigeria), and one year plus 100 lashes (other Northern Nigerian States).Footnote 130 In the latter jurisdictions diya immediately converts a capital sentence to a non-capital one.

After the victim's next of kin has accepted payment, the distinction between a non-capital and a suspended death sentence is stark, and constitutes a key difference between the Chinese and the Sharia-inspired laws. Even if the majority of Chinese suspended death sentences do not result in execution, the replacement prison terms of between 25 years and life are far more severe than the tazir sentences usually imposed in modern Muslim-majority States following a diya agreement, excepting Libya's mandatory life sentence.Footnote 131 When combined with the potential for afw involving no financial compensation at all, it is clear that perpetrators in diya jurisdictions face less severe consequences than under a VRA agreement, although the amounts paid in compensation will vary from jurisdiction to jurisdiction and from agreement to agreement.Footnote 132 This is due to the differing origins of diya and VRAs: diya as a pre-Islamic tribal practice preceding modern nation-States and long-term imprisonment, whereas VRAs were developed within a modern penal system already accustomed to long sentences. Tazir sentences, imposed for deterrent and rehabilitative purposes following diya payments,Footnote 133 help bridge the retributive gap between the Chinese and the Islamic law approaches, but have not entirely eliminated it.

B. Final Decision-Maker

The second operative difference between diya and VRAs relates to the identity of the final decision maker. In the case of diya, the discretion to offer afw, accept compensation, or to order death as a retributive punishment rests with the victim's relatives (albeit under pressure from the judge and other State functionaries). A diya agreement is, at its core, a private institution. Diya is the religious codification of a private private solution to intertribal violence and economic survival,Footnote 134 rather than a modern institution developed within a State judicial framework.

By contrast, it is the judge, not the family, who is the most important decision-maker regarding a VRA. VRAs are only one of a number of factors that the trial judge will take into account when sentencing the offender.Footnote 135 In theory, it would still be possible for a judge to sentence the offender to the death penalty ‘with immediate execution’, rather than pass a suspended death sentence, if a VRA is reached. However, this is unlikely to occur in practice, given the judge's central role in mediating between the two parties.Footnote 136 Conversely, in fixing a suspended death sentence it is also possible for a Chinese judge to take into account the offender's offer of apology and compensation to the victim's family, even if the victim does not accept it,Footnote 137 although how often the victim's family's wishes for execution are ignored remains empirically untested. Suspended death sentences are even available for murder cases where there has been no negotiation at all between the perpetrator and the victim's family.

Although both institutions give the victim's relatives influence in determining the penalty faced by the offender, with the case of diya this power quite literally extends to condemning a prisoner to death, as with the sentencing judge in a Chinese murder case. What the victim's relatives do not have the power to decide in a diya case is the tazir punishment applied to the perpetrator after the agreement is concluded. Likewise, in the PRC case, victims have no power to determine the type of replacement sentence: 25 years or life, following the two-year probation period for a suspended death sentence.Footnote 138

IX. CONCLUSION: TRANS-SYSTEMIC RECOMMENDATIONS

In comparing how diya and VRAs performs the three common functions of replacing clemency as a quasi-legal remedy for prisoners, restricting punitiveness, and compensating victims’ families, this final section identifies four lessons that have the potential to lead to legislative reform of victim–perpetrator agreements. Importantly, Whytock has urged functionalist comparativists to remember that: ‘the same legal rule may produce different results in different countries (and perhaps no significant results in some countries) due to contextual factors’, such as social, economic, historical and cultural differences.Footnote 139 We therefore offer four modest recommendations deriving from the comparative study of diya and VRAs, without attempting to entirely transplant an institution into a jurisdiction ill-suited to host it. Although there are differences between the extent to which Sharia is incorporated into the positive criminal law of Muslim-majority jurisdictions, in any case, Sharia's status as a sacred body of religious principles precludes any fundamental changes being made that evince significant discord with the textual sources.Footnote 140

First and most obviously, the common failure of VRAs and diya to perform all the functions now attributed to clemency (other than providing defendants with a final level of ‘appeal’) suggests that a system of executive clemency is essential in any jurisdiction which retains capital punishment. As described earlier, Saudi Arabia, Libya and Sudan have justified their lack of constitutional or legislative clemency provisions in death penalty cases by the continued use of victim–perpetrator reconciliation agreements.Footnote 141 However, in both the Chinese and the Muslim-majority cases, victim–perpetrator agreements are inadequate substitutes for executive clemency. While an extrajudicial leniency mechanism is notionally available in China in the form of ‘special amnesty’, and in a minority of the retentionist diya jurisdictions by clemency from the head of State, the limited empirical data suggests that these methods are rarely (if ever) used in capital murder cases.Footnote 142

If, as is likely, all the jurisdictions under study retain capital punishment in the medium term,Footnote 143 it is desirable that a formal right to appeal for clemency is adopted in all cases, as mandated by the ICCPR's Article 6(4). In China's case, a new provision mandating the right of a prisoner sentenced to death to petition the State President for commutation would need to be inserted into the 1982 Constitution. Articles 67(17) and 80 are presently insufficient, as they only allow for ‘amnesty’ granted unilaterally to large groups of prisoners at once. On the other hand, the diya jurisdictions that do not currently allow for the right to plead for clemency could follow the model provided by Kuwait, Pakistan, Bahrain, and Nigeria, whereby a convicted murderer has a constitutional or legislative right to be considered for clemency if a diya settlement cannot be reached.Footnote 144 Moreover, leaders in the retentionist Muslim-majority nations that already allow for executive clemency should consider reviewing and commuting subsisting death sentences for murder on the basis of the retributive, rehabilitative or even utilitarian factors that have not already been taken into account during diya negotiations.

Second, if VRAs are to be retained in the PRC, tighter regulation of the three parties’ broad ambit to negotiate, mediate and enforce the victim–perpetrator agreement is desirable, in order to promote consistency in compensation across like cases and to avoid corruption on the part of the supervising judge.Footnote 145 Currently, there are few legislative guidelines on how the victims’ discretion should be exercised, and how the State's oversight of the process should work. Here, the Chinese model could draw ideas from certain diya jurisdictions, where, if the parties choose not to vary the award, the ‘blood price’ reverts to a fixed amount, or to a sum set by the judge after considering the aggravating and mitigating factors and the parties’ differing financial means.Footnote 146 Although some Chinese courts are now restricting the amount of compensation able to be offered, there remain large and unjustifiable regional variations in VRAs practices throughout the PRC.Footnote 147 The Muslim-majority nations applying diya could also learn from the PRC, where no formal differentiation of the ‘blood price’ is made between male and female victims. Gender differences in compensation awards are increasingly untenable in the modern world, given the role of women in the workplace and as property owners.Footnote 148 Although it is not reflected in the classical doctrine, Sudan is an example of a Muslim-majority State which does not specify a difference in blood price between men and women in its codification of Sharia precepts.Footnote 149 Iran, on the other hand, codifies the classical approach, making it explicit that a woman's diya is only half that of a man's.Footnote 150

A third and related problem within both systems is the relative ease with which wealthier and better-connected perpetrators can avail themselves of a lesser sentence.Footnote 151 It is not obvious why the ability of wealthier capital defendants to offer pecuniary compensation to the victim's family indicates a lower degree of blameworthiness or future dangerousness so as to justify a sentence reduction.Footnote 152 The simplistic logic which prevails in Chinese judicial practice is that monetary compensation per se is an expression of remorse by the defendant and qualifies as a mitigating factor in sentencing. The more money offered, the greater the remorse.

A solution that better promotes proportionality and just deserts in sentencing, if victim power over capital sentencing is retained in either system,Footnote 153 would be a lengthy punishment in lieu of execution after agreement is reached between the victim's family and the perpetrator.Footnote 154 Legislation allowing for a sentence of life imprisonment or a 15–20 year sentence even if a reconciliation agreement is reached means that rich and poor defendants, or defendants whose victims’ families are either vengeful or conciliatory, will be treated as equally as possible (even if the difference between death and life remains stark). Of the two systems under study here, the Chinese system is the one closest to this ideal: the difference between a suspended death sentence and a sentence of immediate execution is not as great as between death and immediate release or a short-to-medium tazir sentence of imprisonment in diya jurisdictions. Lengthening the tazir sentences typically imposed in high-volume death penalty jurisdictions such as Saudi Arabia, Pakistan and Iran (by adopting the life imprisonment term presently available in Libya, for example) remains perfectly compatible with Sharia's textual sources. Such a move would help to confirm diya agreements for what they really should be: means of compensating for the victim's loss, rather than as pecuniary penalties against offenders and their own relatives in lieu of capital punishment.Footnote 155 In addition to reducing the disparity in treatment between richer and poorer defendants, the possibility of more severe but humane punishment following a diya agreement may even incentivize victims’ families to choose life over death.

Fourth and finally: social and psychological healing is a necessary component of ‘reconciliation’, alongside purely financial reparation. Within both institutions under study, the reconciliation agreement between the victim and offender should, ideally speaking, help to repair the broken fabric of social relations, torn apart by violent crime.Footnote 156 Negotiating the agreement provides an ideal opportunity for the parties to communicate, and if possible, to make peace with one another.Footnote 157

However, as with most diya settlements, the administration of VRAs in capital cases in the PRC is currently more about securing financial interests, rather than promoting emotional relief or psychological benefits.Footnote 158 While nothing can bring back the life of the victim, financial compensation should only be part of a larger reconciliation agreement to ‘compensate’ for loss. Here, a package of restorative measures such as perpetrator apology and expression of remorse, face-to-face meetings with victims, agreeing to undertake rehabilitative activities in prison, and providing the victim's family with a direct means of expressing the pain that the death has causedFootnote 159 are all further means of healing, moving forward, and again, incentivizing murder victims’ families to spare the perpetrator's life. Although such steps sometimes form part of Chinese VRA compacts,Footnote 160 they are usually lacking with the case of diya and sulh.Footnote 161

The four preceding measures have the potential to ensure that the nations under study best fulfil the functional goals with which diya and VRAs have become associated over the course of their lifespan: 1) filling the legal vacuum creating by the lack of individualized clemency procedures, 2) respecting the delicate political and religious context by enabling the governments concerned to reduce execution totals without abolishing or otherwise legally restricting capital punishment, and 3) providing adequate compensation to victims’ families for their loss. The suggested measures of reform promote these three goals by seeking to regulate and domesticate victim–perpetrator agreements to transform them from seemingly ad hoc extraordinary remedies to more predictable and bureaucratized criminal justice solutions, evincing fairness between like cases and greater participant satisfaction. While greater domestic support for victim–perpetrator agreements may result from case-based equity and party satisfaction, increased international legitimacy will also follow from the overall reductions in execution numbers that these best-practice reforms have the potential to yield in some of the world's most prolific users of capital punishment.Footnote 162

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38 Babcock et al. (n 36); Hood and Hoyle (n 6) 503. Diya is also applied for qisas crimes in Mauritania, Qatar, the Maldives and Oman, however these States have not conducted an execution for over 10 years (Hood and Hoyle (n 6) 507–8). See Babcock et al. (n 36) (Oman); Mauritania Penal Code 1983, art 1; Qatar Penal Code 2004, art 1; Maldives Regulation R-33/2014.

39 In several countries, including some where diya is a part of the positive criminal law (Pakistan, Somalia, Sudan, Afghanistan, Saudi Arabia) and some where it is not (Iraq, Egypt, Jordan, Palestine (Gaza Strip)), informal, extra-legal settlements are nonetheless arranged between parties to a crime, which precludes the crime's reporting to State authorities or its prosecution (N Malone, ‘How Does Blood Money Work?’ (Slate Blog Post, 2009); Gottesman (n 14) 457; E Goat, ‘Trading Justice for Money: Prisoners on Pakistan's Death Row Can Pay Off Their Victims’ Families in Exchange for Freedom’ The Independent (10 January 2015); S Wacays, ‘Somaliland: From Crisis to Stability’ (unpublished Master's Thesis in Human Geography, Department of Sociology and Human Geography, University of Oslo, May 2008) 74; Babcock et al. (n 36); Rogers, D, Postinternationalism and Small Arms Control: Theory, Politics, and Security (Routledge 2016) 68 Google Scholar; interview with Afghan NGO Staff (Oslo, 23 June 2016); interview with Saudi Arabian NGO Staff (Oslo, 23 June 2016); Penal Reform International, Sharia law and the Death Penalty: Would Abolition of the Death Penalty Be Unfaithful to the Message of Islam? (Penal Reform International 2015) 13). For the purposes of this article, we consider such informal reconciliation agreements inappropriate objects of comparison with Chinese VRAs, as State institutions do not play as active a role in bringing the former reconciliation agreements about, in contrast with the judicial oversight within regular diya negotiations. For further research on informal dispute resolution arrangements in the Muslim world, see YB Hounet, ‘“Reconciliation is the Foundation!”: Courts of Justice and Unofficial Reconciliation Practices in Algeria and Sudan’ (2015) 60(3–4) Diogenes 1; JH Wilson, ‘Blood Money in Sudan and Beyond: Restorative Justice or Face-Saving Measure’ (unpublished Doctor of Liberal Studies thesis, Georgetown University 2014); Dupret, B and Burgat, F (eds), Le cheikh et le procureur: Systèmes coutumiers, centralisme etatique et pratiques juridiques au Yémen et en Egypte (CEDEJ 2005)Google Scholar; Irani, GE, ‘Arab-Islamic Rituals of Conflict Resolution and Long-Term Peace in the Middle East’ (2000) 7 Palestine-Israel Journal Google Scholar <http://www.pij.org/details.php?id=994>; and Irani, GE, ‘Islamic Mediation Techniques for Middle East Conflicts’ (1999) 3(2) Middle East Review of International Affairs 1 Google Scholar.

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42 El-Awa (n 10) 76, 85, 89; Penal Reform International (n 39); interview with Saudi Arabian NGO Staff (n 39); interview with Iranian NGO Staff (Oslo, 23 June 2016).

43 El-Awa (n 10) 84; Duncan (n 32) 239; Hubbard (n 32); Gottesman (n 14) 442.

44 al-Alfi (n 17) 227; Bassiouni (n 20) 209.

45 Lange (n 10) 170. Of the jurisdictions under study, Pakistani courts can impose a replacement sentence of death itself, life imprisonment, or a term of imprisonment of up to 14 years, and a minimum term of 10 years in cases of honour killing (Pakistan Penal Code 1860, art 311). However, none of these sentences are used with any regularity, with many perpetrators walking free after the settlement ( Cheema, MH, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law’ (2012) 60 AmJCompL 875, 899–900 Google Scholar). Libyan law imposes a more consistent mandatory sentence of life imprisonment if diya is accepted (Libya Law 7/2000, art 1). In Yemen the alternative punishment is up to 15 years (Yemen Law 12/1994, art 55). In Sudan, the maximum punishment is 10 years’ imprisonment plus a fine (Sudan Penal Code 2003, Section 251). In Iran, the Islamic Penal Code 2013, art 612 allows for 3–10 years imprisonment. In most Northern Nigerian States, the tazir penalty is fixed at one year's imprisonment and 100 lashes, whereas in Kano and Katsina States, up to 10 years’ imprisonment is permissible (Weimann (n 35) 97–8). In Kaduna State no further punishment appears possible if diya is accepted (‘Harmonised Sharia Penal Code Law’ (n 37) 85 n 270). In Saudi Arabia, the usual punishment awarded has variously been reported as five years of imprisonment or less (Duncan (n 32) 239; Ismail (n 40) 377) or between eight months and two years’ imprisonment (interview with Saudi Arabian NGO Staff (n 39)). Nonetheless, Sharia judges possess absolute sentencing discretion to impose harsher punishments as tazir, including corporal and capital punishment (Peters (n 21) 66–7). The same situation presumably follows in the UAE, Somalia, Bahrain, Jordan, Libya and Afghanistan, with no alternative tazir penalty proscribed in the relevant legislation or constitutional provisions.

46 Babcock et al. (n 36).

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49 Fu (n 12) at 290 asserts that the SPC ‘has always allowed cash for leniency and clemency in limited circumstances’, and cites an SPC memo from 1999 on the subject (emphasis added).

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59 Weatherley and Pittam (n 52) 277–99; Fu (n 12) 291.

60 Weatherley and Pittam (n 52) 278.

61 Fu (n 12) 291.

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69 Garland describes sovereignty as the ‘claimed capacity to rule a territory in the face of competition and resistance from external and internal enemies’ ( Garland, D, ‘The Limits of the Sovereign State’ (1996) 36 BritJCriminol 445, 448 Google Scholar). Today, as in the past, clemency provides key benefits for the decision-maker who exercises it, entirely independent of the prisoner's interests and those of the broader constituency. Frequent use might cast the decision-maker (usually the head of State) in a benevolent light, increasing the ruler's hold over the ‘life and death’ of his citizens ( Kobil, DT, ‘The Quality of Mercy Strained: Wresting the Pardoning Power from the King’ (1991) 69 TexLRev 569, 571, 582 Google Scholar; Sarat (n 62) 16; Shapiro, M, ‘Appeal’ (1980) 14 Law and Society Review 629, 635–6CrossRefGoogle Scholar; Coyne and Entzeroth (n 66) 839). Relatedly, clemency might help an autocratic government increase its international legitimacy, or clemency may conform with the ruler's conception of religious piety (D Pascoe, ‘Clemency in Southeast Asian Death Penalty Cases’ (2014) 1 Centre for Indonesian Law, Islam and Society Policy Papers). Clemency may even act as a form of corruption, being granted for the financial or direct political benefit of the decision-maker (Sebba (n 62) 231; Rapaport, E, ‘Staying Alive: Executive Clemency, Equal Protection and the Politics of Gender in Women's Capital Cases’ (2001) 4 BuffCrimLR 967, 982 Google Scholar; Heise, M, ‘Mercy by the Numbers: An Empirical Analysis of Clemency and its Structure’ (2003) 89 VaLRev 239, 289, 298 Google Scholar; Crouch, JP, The Presidential Pardon Power (University Press of Kansas 2009) 4 Google Scholar).

70 Barkow, RE, ‘The Ascent of the Administrative State and the Demise of Mercy’ (2008) 121 HarvLRev 1332, 1335 Google Scholar.

71 Cooper, S and Gough, D, ‘The Controversy of Clemency and Innocence in America’ (2014) 51 CalWLRev 55, 98 Google Scholar; Cunningham, B, ‘Empty Protection and Meaningless Review—The Need to Reform California's Stagnant Capital Clemency System’ (2012) 44 LoyLALRev 265, 271 Google Scholar.

72 DeCoste, FC, ‘Conditions of Clemency: Justice from the Offender’ (2003) 66 SaskLRev 1, 9 Google Scholar; Moore, K, Pardons: Justice, Mercy and the Public Interest (Oxford University Press 1989) 129 Google Scholar; Carter, LE, ‘Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Conventions on Consular Relations’ (2005) 15 DukeJComp&IntlL 259, 269 Google Scholar.

73 Pascoe, D, ‘Is Diya a Form of Clemency?’ (2016) 34 BUIntlLJ 149, 171–4Google Scholar.

74 Amnesty International (n 51); Sebba, L, ‘The Pardoning Power: A World Survey’ (1977) 68 JCrimL&Criminology 83 Google Scholar.

75 Hood and Hoyle (n 6) 313; Shen (n 57) 899.

76 Shen (n 57) 899; Su, C, ‘The Present and Future: The Death Penalty in China's Penal Code’ (2011) 36 OklaCityULRev 427, 445 Google Scholar.

77 Babcock et al. (n 36) (Libya, Saudi Arabia, UAE); Sudan Criminal Act 1991, section 38(2); Iran Islamic Penal Code 2013, art 261; Yemen Law 12/1994, art 48. This no-clemency categorization may well also extend to Somalia, whose Constitution (while strongly Islamic) is silent on this issue (see Provisional Constitution of the Federal Republic of Somalia 2012, art 90(p)). Notably, the constitutions of neighbouring semi-autonomous provinces Puntland and Somaliland bar executive clemency in qisas cases (Constitution of the Republic of Somaliland 2001, art 90(5); Constitution of Puntland State of Somalia 2010, art 79(11)).

78 Miao (n 53) 34.

79 ‘China: Juveniles Biggest Winners in 2015 Special Pardon’ (Dui Hua Foundation, NGO article, 2016).

80 Z Zhou, ‘The Death Penalty in China: Reforms and Its Future’ (Waseda University Institute for Advanced Studies, 2011) 35; Shen (n 57) 899; Su (n 76) 445. The PRC signed the ICCPR in 1998, yet has not yet ratified it.

81 ‘Pardon Us: Asian Clemency Laps China’ (Dui Hua Foundation, NGO press release, 2012).

82 ‘Calls Grow in China for Special Pardon to Mark PRC's 60th Birthday’ (Dui Hua Foundation, NGO press release, 2009).

83 Xinhua News Agency, ‘The Order for A Special Pardon by the President of the People's Republic of China’ (29 August 2015).

84 Dui Hua Foundation (n 79); S Chen, ‘Dongguan Intermediate Court: From Paying Restitution in Exchange of Lesser Punishment to Penal Reconciliation’ 21st Century Business Herald (7 February 2007).

85 Dui Hua Foundation (n 79).

86 Andrew, AM and Rapp, JA, Autocracy and China's Rebel Founding Emperors: Comparing Chairman Mao and Ming Taizu (Rowman & Littlefield 2000) 75 Google Scholar.

87 Shen (n 57) 899; Shapiro (n 69) 634–5.

88 See n 77.

89 Babcock et al. (n 36) (generally); Constitution of Kuwait 1962, art 75; Constitution of Pakistan 1973, art 45; Bahrain Penal Code 1976, art 90; Constitution of Nigeria 1999, art 175, 212 (President and State Governors). The Constitution of Afghanistan provides for Presidential clemency, without specifying exclusions for qisas offences, in art 64(18), as does the Jordan Penal Code 1960, art 51. In those two jurisdictions, it is unclear whether clemency is available in murder cases if the victim's heirs demand retribution.

90 Nevertheless, despite lacking a formal and binding power to commute, government representatives may still attempt to persuade the victim's family to accept diya or to grant afw (Ismail (n 40) 377; interview with Saudi Arabian NGO Staff (n 39); interview with Iranian NGO Staff (n 42)). Executive authorities can also choose to simply not enforce the death penalty, leaving the perpetrator indefinitely on death row, given that qisas punishments are now enforced by the State, rather than the victim's next of kin. This option has a legislative basis in Saudi Arabia, with the King able to ‘veto’ executions, even if there is no official power to pardon qisas offences. (Saudi Arabia Law on Criminal Procedure 2001, art 220(a); Duncan (n 32) 240). An identical power vests in the President of Yemen (Constitution of Yemen 1991, art 123).

91 Of the preceding six jurisdictions listed, four (Yemen, Iran, Sudan and Libya) are parties to the ICCPR. However, if the right to seek clemency is indeed a customary international law right (n 75 above), then it also binds the UAE and Saudi Arabia, unless these States are classified as persistent objectors, which remains controversial within customary international law ( Dumberry, P, ‘Incoherent and Ineffective: The Concept of Persistent Objector Revisited’ (2010) 59 ICLQ 779, 802 Google Scholar). Afghanistan and Somalia, whose executive clemency power in murder cases remains unclear, are also ICCPR State parties.

92 As noted above, there is some jurisprudential dispute as to which offences are classified as hudud (El-Awa (n 10) 2) and whether or not any hudud offences are pardonable by the State (Baderin (n 22) 73).

93 Babcock et al. (n 36) (Kuwait; Bahrain); International Federation for Human Rights, ‘Slow March to the Gallows: Death Penalty in Pakistan’ (January 2007) 17; K Lewis, ‘Pakistan: Paralysed Death-Row Prisoner “Suffering Life Worse Than Hell” after Stay of Execution Expires’ The Independent (London 26 April 2016). Nigeria is the notable exception, where the President and State Governors have been active in granting clemency to prisoners on death row, and while remaining formally retentionist, the country has rarely executed prisoners over the past 10 years (P Alston, ‘The Death Penalty’ (Project on Extrajudicial Executions, Center for Human Rights and Global Justice, New York University School of Law) 11–12; Babcock et al. (n 36)).

94 Ismail (n 40) 364–7; Hardy (n 10) 71; Osanloo (n 5) 318.

95 Saudi Arabia (UN Human Rights Council, ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council resolution 16/21: Saudi Arabia’ (UN Doc A/HRC/WG.6/17/SAU/1, 5 Aug 2013a) [37]); Iran (UN Human Rights Council, ‘National Report Submitted in Acordance with Paragraph 5 of the Annex to Human Rights Council resolution 16/21: Iran (Islamic Republic of)’ (UN Doc A/HRC/WG.6/20/IRN/1, 4 Aug 2013b) [4]); Libya (UN Human Rights Council, ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Libya’ (UN Doc A/HRC/WG.6/22/LBY/1, 5 May 2015) [76]; Chenwi, L, ‘Fair Trial Rights and Their Relation to the Death Penalty in Africa’ (2006) 55 ICLQ 609 CrossRefGoogle Scholar, 631 n 133).

96 Hood, R, The Death Penalty: A Worldwide Perspective (Oxford University Press 2002) 167 Google Scholar (emphasis added).

97 Duncan (n 32) 247. Compare Pascoe (n 73) 177.

98 Weatherley and Pittam (n 52) 281.

99 Johnson and Miao (n 50) 308, 311 (emphasis added).

100 Pascoe (n 73) 176.

101 Weatherley and Pittam (n 52) 285. The aforementioned authors suggest that it is likely that VRAs will be explicitly recognized by the Communist Party leadership in the future, albeit perhaps on a more limited scope so as to exclude murder cases (Weatherley and Pittam (n 52) 295).

102 Trevaskes (n 12) 38–40; Weatherley and Pittam (n 52) 282–3, 287.

103 Weatherley and Pittam (n 52) 291–2.

104 Trevaskes (n 12) 44.

105 Baderin (n 22) 73 (generally); Babcock et al. (n 36) (UAE; Libya); Duncan (n 32) 234; Al-Hewesh, M, ‘Sharia Penalties and Ways of Their Implementation in the Kingdom of Saudi Arabia’ in United Nations Social Defense Research Institute (ed), The Effect of Islamic Legislation on Crime Prevention in Saudi Arabia (Crime Prevention Research Centre 1976) 377 Google Scholar; interview with Saudi Arabian NGO Staff (n 39) (Saudi Arabia); interview with Iranian NGO Staff (n 42) (Iran).

106 Ghassemi, G, ‘Criminal Punishment in Islamic Societies: Empirical Study of Attitudes to Criminal Sentencing in Iran’ (2009) 15 European Journal on Criminal Policy and Research 159, 163 CrossRefGoogle Scholar (Iran); ‘Saudi Arabia – Retentionist’ (Hands off Cain, NGO website 2014).

107 Rahami, M, ‘Islamic Restorative Traditions and Their Reflections in the Post Revolutionary Criminal Justice System of Iran’ (2007) 15 EurJCrimeCrLCrJ 227, 235 Google Scholar (Iran); Pakistan Penal Code 1860, art 310(3), 313(2)(a) (Pakistan).

108 Bassiouni (n 20) 206–7 (generally).

109 See Iran Islamic Penal Code 2013, Book Four: Diyat.

110 DeCoste (n 72) 9; Moore (n 72) 129.

111 Acker and Lanier (n 67) 209; The New Paper, ‘Family Aghast after King Pardons Killer’ The New Paper (Singapore, 30 January 2008); Moore (n 72) 146.

112 Sebba (n 62) 230, 232; Rapaport (n 69) 1001; Sarat (n 62) 67.

113 Fu (n 12) 287, 291; Johnson and Miao (n 50) 311.

114 Trevaskes, S, ‘Yanda 2001: Form and Strategy in a Chinese Anti-Crime Campaign’ (2003) 36 ANZJCrim 272, 272–92Google Scholar. See generally Tanner, HM, Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice 1979–1985 (Cornell University East Asia Program 1999)Google Scholar.

115 See generally Miao, M, ‘Capital Punishment in China: A Populist instrument of social governance’ (2013) 17 Theoretical Criminology 233 CrossRefGoogle Scholar.

116 Osanloo (n 5) 311, 318.

117 Gottesman (n 14) 446; Hascall (n 40) 60, 63; Peiffer (n 23) 517.

118 Baderin (n 26) 144.The non-religious motivations of States to encourage mercy include concern for the State's international image and multilateral norms, placating public unrest over wrongful executions, and compassion for those on death row given a lack of other discretionary means to show leniency.

119 Sun, W, ‘Is Penal Reconciliation Acceptable or Needed in Capital Cases?’ (2010) 1 China Legal Science 180, 180–91Google Scholar.

120 UN High Commissioner for Human Rights & International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (United Nations 2003) 121.

121 For diya’s comparison with tort law, see Osanloo (n 5) 309–10 and Peters (n 21) 7, 20. For diya compared with restitution orders, see Hascall (n 40) 45–6; Wilson (n 39) 1; and El-Awa (n 10) 89–90. Although the PRC does possess a rudimentary system of State-funded victim compensation, and moreover victims also retain the right to pursue offenders in parallel civil actions, such awards are generally considered financially insufficient or unenforceable, hence the vital restitutory role played by VRAs (Weatherley and Pittam (n 52) 283, 292; Z Nie, ‘Is Penal Reconciliation Applicable to Capital Cases’ People's Court News (12 October 2007); Fu (n 12) 290–1).

122 Weatherley and Pittam (n 52) 283. See also n 33.

123 al-Alfi (n 17).

124 Du, W and Ren, Z, ‘Forgiveness by the Victim and the Application of the Death Penalty’ (2005) Journal of Social Sciences 72, 72–6Google Scholar.

125 Weatherley and Pittam (n 52) 277–99; Fu (n 12) 291.

126 Cohen, R, ‘Language and Conflict Resolution: The Limits of English’ (2001) 3 International Studies Review 25, 41 CrossRefGoogle Scholar.

127 Miao (n 53) 30; Trevaskes (n 12) 42.

128 Chinese Criminal Law 1997, art 48.

129 See n 53.

130 See n 45.

131 ibid.

132 In the PRC, settlements have been reached for as much as RMB 500,000 (approximately US$75,000) (Weatherley and Pittam (n 52) 283). Turning to the Muslim-majority jurisdictions, in 2011, the default diya price for a male Muslim in Saudi Arabia was US$106,666 for premediated murder (‘Saudi Arabia triples blood money to SR300,000’ Emirates 24/7 News (11 September 2011). In 2014, the default price for premeditated murder of a Muslim male in the UAE was set at US$54,450 (‘United Arab Emirates – Retentionist’ (Hands off Cain, NGO website 2014). In Pakistan, although the base amount set by a judge may vary from case to case with the parties’ financial circumstances, in 2015 the default price was set at approximately US$53,000 (Goat (n 39)). In Iran, a 2012 article reported the diya price as US$47,000–62,500 (Osanloo (n 5) 317). In Niger State, Nigeria, the default amount of diya is set by legislation at US$35,000 (Weimann (n 35) 97). For contemporary default prices in other Muslim-majority jurisdictions, see Ismail (n 40) 378. Note however that all of these figures for diya reflect the negotiations’ starting point, rather than representing the final settlement reached under sulh (see n 42 and associated text above).

133 Peters (n 21) 66.

134 Hardy (n 10) 46.

135 Trevaskes (n 12) 44; Weatherley and Pittam (n 52) 285; Fu (n 12) 292. Here, Trevaskes (n 12, 55) bemoans that: ‘the principal sentencing decision on life or death for the capital offender is reduced to a decision made by a party – the victim's family – who are not of the judiciary, or even of the legal system’.

136 However, Fu notes that some perpetrators and victims have now started to initiate the process on their own, without the assistance of the court (Fu (n 12) 292). See also n 45 above, on the possibility of tazir death sentences.

137 Trevaskes (n 12) 45.

138 Alsagoff, SA, Al-Diyah as Compensation for Homicide Wounding in Malaysia (International Islamic University Malaysia 2006) 151 Google Scholar.

139 Whytock (n 2) 1898. See also Michaels (n 4) 351.

140 Nevertheless, there is notable disagreement between Muslim scholars over whether Islamic law should be interpreted in a literal or revisionist manner. See An-Naim, A, Islam and the Secular State: Negotiating the Future of Shari'a (Harvard University Press 2009) 19 Google Scholar; Baderin (n 22) 11–12, 39–40, 219; Peters (n 21) 181, 184.

141 See n 95.

142 Dui Hua Foundation (n 79) and n 93 above.

143 In the PRC, as Weatherley and Pittam note, ‘abolition is not currently an option [for the Chinese government]. Public support for the death penalty is extremely high, with one survey suggesting that 80 per cent of respondents are in favour of retaining it’ (Weatherley and Pittam (n 52) 280). As for the diya jurisdictions, the Quran and Sunnah's textual support for the death penalty in the case of hudud, tazir and qisas offences is often cited as a fatal obstacle to outright death penalty abolition in the Muslim world (Baderin (n 26) 144; Ridge, H, ‘Economic and Historical Influence on the Application of Capital Punishment in Turkey and Saudi Arabia’ (2014) 3(1) The Messa Journal 1, 20 Google Scholar; Amnesty International, ‘Affront to Justice: Death Penalty in Saudi Arabia’ (Amnesty International, 2008).

144 As, jurisprudentially speaking, this move contravenes a strict interpretation of Sharia doctrine in qisas (and hudud) cases, an alternative model is that employed by Saudi Arabia, whereby the King retains the legislative power to veto executions, rather than to formally commute death sentences to a lesser punishment (see n 90). Addressing the same conundrum, Philip Alston, the former UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (n 93, 50) has pointed to a similar system previously in force in Tunisia, even if this did formally contravene ICCPR art 6(4).

145 Weatherley and Pittam (n 52) 279–89, 291.

146 Gottesman (n 14) 445 (on Pakistan). Reverting to fixed diya prices in all Muslim-majority countries, without the possibility for negotiation through sulh, may have the undesirable consequence of increasing the number of unofficial settlements outside the legal system, thereby preventing prosecution in the first place (interview with Iranian NGO Staff (n 42)). In these circumstances, the perpetrator will not have to serve a replacement tazir sentence of imprisonment at all, and will continue to be at liberty.

147 Johnson and Miao (n 50) 311.

148 Osanloo (n 5) 317–19.

149 Peters (n 21) 167, 178; Sudan Penal Code 2003, section 251.

150 Iran Islamic Penal Code 2013, art 383.

151 Sun (n 119) 180–91; Weatherley and Pittam (n 52) 279, 289; Hood (n 96) 37, 167; Amnesty International (n 51); Lewis, MK, ‘Leniency and Severity in China's Death Penalty Debate’ (2011) 24 ColJAsianL 304, 329 Google Scholar.

152 Johnson and Miao (n 50) 311.

153 The radical alternative would be to abolish victim–perpetrator agreements altogether, replacing them with multiple levels of court review, formal executive clemency procedures, discretionary restitution orders in criminal cases and State-funded victim compensation schemes. However, this reformist option may fail in the jurisdictions concerned due to: a) court-ordered restitution relying on the defendant's financial position, b) a lack of State funding for victim compensation in developing States; c) the resource implications for the head of State to give fair consideration to thousands of clemency petitions a year in PRC, and d) the immutable textual basis of qisas and diya in the Quran, Hadiths and Sunnah.

154 Liang, G, ‘Ten Falsification Tests on Penal Reconciliation in Capital Cases’ (2010) Legal Science 3, 3–21 Google Scholar; Johnson and Miao (n 50) 311; al-Alfi (n 17) 230.

155 See nn 31–34 and associated text.

156 Du and Ren (n 124) 72–6; Weatherley and Pittam (n 52) 278; Hascall (n 40) 74–5.

157 Sun (n 119) 180–91; Weatherley and Pittam (n 52) 278.

158 Bian, J and Feng, L, ‘Constructing a Chinese Model of Penal Reconciliation on the Basis of Penal Reconciliation’ (2008) 26 The Forum of Politics and Law 3, 3–21 Google Scholar.

159 Weatherley and Pittam (n 52) 283–4; Zedner, L, ‘Reparation and Retribution: Are They Reconcilable?’ (1994) 57 MLR 228, 234–5CrossRefGoogle Scholar; Qafisheh (n 29) 488.

160 Fu (n 12) 291; Weatherley and Pittam (n 52) 284.

161 Cohen (n 126) 41.

162 Of the 10 most prolific death penalty States worldwide during the period 2007–12, seven utilized victim–perpetrator reconciliation agreements of one kind of another (PRC, Iran, Saudi Arabia, Iraq, Pakistan, Yemen, Libya) (S Rogers and M Chalabi, ‘Death Penalty Statistics, Country by Country’ The Guardian (13 December 2013) <http://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world>).