Qom – The Research Institute of Contemporary Jurisprudence, in cooperation with the Research Vice-Chancellery of the Faculty of Law at Farabi Campus, University of Tehran, held its 293rd scientific session on the topic “Responsibility of the Public Treasury Regarding the Blood Money of War Martyrs.” This session was organized with the objective of examining the legal and jurisprudential dimensions of paying blood money (diyah) to veterans of the Imposed War and victims of similar incidents, attended by prominent professors of Islamic jurisprudence and law.

At the beginning of this session, Dr. Ahmad Haji Dehabadi, faculty member of the University of Tehran, acting as the scientific secretary, emphasized the importance of the subject and the necessity of addressing the rights of victims. Pointing to the historical background of crime damage compensation, he stated that in the past, the main focus was on compensating direct crime victims; however, with social and legal developments, the role of governments in this domain has become more prominent.

Responsibility of the Public Treasury Regarding the Blood Money of War Martyrs

The scientific secretary elaborated on the historical evolution of the concept of state compensation at the international level. Referring to developments after the 1950s and 1960s, Dr. Haji Dehabadi pointed to the importance of compensating crime victims as one of the essential components of criminal policy in many countries. He stated that sole reliance on the offender’s capacity to compensate for damages faces challenges in many cases, as the offender might not be identified or might lack the necessary financial capability. State compensation, in addition to restoring the victim’s right, significantly contributes to preventing revenge and avoiding secondary victimization. Referencing the laws of New Zealand (1963) and the United Kingdom (1964) as pioneers of this approach was among the other points raised.

The faculty member of the University of Tehran further referred to the jurisprudential and legal foundations of paying diyah from the public treasury (Bayt al-Mal) in Islam and, citing rules such as “a Muslim person’s blood shall not be wasted” (la yabtul damu imri’in muslim) and “a Muslim person’s right shall not be lost” (la yadhhab haqqu imri’in muslim), underscored the emphasis of the pristine religion of Islam on compensating victims. He then proceeded to categorize cases of paying diyah from the public treasury based on current laws, elaborating on these categories:

1. Unintentional acts of government agents: In cases where state agents commit unintentional acts resulting in damage or martyrdom of an individual, the government is obligated to compensate for the damages resulting from these actions.

2. Completing the offender’s diyah (fadil al-diyah): In cases where the victim’s heirs lack the ability to pay fadil al-diyah (the diyah differential in cases of difference between male and female diyah or in retribution), the government supplies this amount through the public treasury to enable the execution of the retribution (qisas) ruling (subject of Article 428 of the Islamic Penal Code).

3. Simultaneous payment of diyah by offender and public treasury: In this case, part of the diyah is paid by the offender and another part by the public treasury (such as the Bodily Injury Compensation Fund). For example, in cases where a murdered woman’s side pays half of a man’s diyah, the other half is supplied from sources other than the offender.

4. Substitution of the public treasury for the offender: This case holds special importance. Under circumstances where the killer is not identified, or due to death or flight, access to him is impossible, and the assets of the offender or the ‘aqilah (paternal kin) are insufficient to pay the diyah, the public treasury assumes the duty of paying diyah. Our legislator, following certain jurists, has anticipated paying diyah from the public treasury even in semi-intentional (shibh-e ‘amd) and purely accidental (khata’-e mahd) crimes in case of the offender’s insolvency. Dr. Haji Dehabadi emphasized that paying diyah from the public treasury is today one of the frequently recurring topics in courts.

The main axis of the discussion subsequently focused on the key question: Does diyah apply to martyrs of the Imposed War as well? In this regard, two main approaches were examined:

• The Principle of Non-Liability (Asl Adam al-Daman): Regarding the liability of the public treasury, should one rely on the principle of non-liability?

• The Nature of Diyah Payment: Does paying diyah from the public treasury bear a “debt” (dayni) nature or a “supportive” (hemayati) nature?

Dr. Haji Dehabadi explained that the main focus of the discussion centers on the “debt” nature; that is, can one advocate liability and creation of debt for the public treasury? Conversely, if the nature of these payments is considered “supportive,” the discussion becomes easier, as the public treasury of Muslims is designated to fulfill the public interest of Muslims, including these very payments.

Continuing his remarks, he raised an interesting point by referring to the “Criminal Injuries Compensation Scheme” in the United Kingdom. In this scheme, the state explicitly declared that it is not a “debtor” toward crime victims, but merely provides “ex gratia payments” and assistance. This essential difference highlights the need to pay attention to it in our legal and jurisprudential discussions, because sometimes the objective is creating an obligation for the public treasury, and sometimes creating a debt. This issue was explored as a major axis in the upcoming discussions of this session.

Continuing the session, Hujjat al-Islam wal-Muslimeen Ebrahim Baqeri, Director of the Department of Criminal Jurisprudence at the Higher Institute of Jurisprudence and Islamic Sciences, proceeded to elaborate on new dimensions of paying diyah from the public treasury, particularly regarding martyrs of recent wars.

Hujjat al-Islam wal-Muslimeen Ebrahim Baqeri, expressing gratitude to the organizers and attendees, presented statistics of martyrs from three recent wars (the Iraqi Imposed War against Iran, and the two recent wars imposed by America and the Zionist regime), totaling 369,201 persons. He emphasized that the main topic of this discussion is the “establishment” (subut) of the right to diyah upon the public treasury, not its executive capacity. The Director of the Department of Criminal Jurisprudence at the Higher Institute of Jurisprudence and Islamic Sciences, pointing to the extensive damages incurred in the recent war (estimated at 270 billion dollars), acknowledged that the high volume of financial obligations might create the impression that the government lacks the capacity to pay them. Nevertheless, he considered this issue similar to the situation of insolvent natural persons in paying diyah and emphasized the necessity of examining the principle of the “establishment” of the right to diyah.

The Director of the Department of Criminal Jurisprudence at the Higher Institute of Jurisprudence and Islamic Sciences, pointing to serious ambiguities regarding legal aspects—especially international law—in this field, requested the Research Institute of Contemporary Jurisprudence and Mr. Sharifi to assist in resolving these ambiguities by holding an ongoing series of sessions. Dr. Baqeri specifically mentioned the problems faced by Tehran’s International Affairs Prosecutor’s Office in examining this topic, noting that ambiguities such as complicity (mu’awanat), direct causation (mubasharat), indirect causation (tasbib), as well as requirements of international law need expert examination, particularly with the presence of specialists such as Dr. Raha’i.

Continuing, Hujjat al-Islam wal-Muslimeen Baqeri made the main axis of his speech the question of whether paying diyah from the public treasury is permissible from legal and jurisprudential perspectives. This question serves as the key to entering deeper legal and jurisprudential discussions surrounding state responsibility toward victims of force majeure and wartime events. The broad and complex dimensions of the issue emphasized the necessity of following up and deepening research in international law and Islamic jurisprudence related to paying diyah from the public treasury, as he proceeded to examine two other fundamental axes: the doubt of limitation of diyah payment cases from the public treasury, and the jurisprudential definition of “martyr” and the applicability of diyah to him.

Dispel of the Doubt Regarding the Limitation of Diyah Payment Cases from the Public Treasury:

Rejecting the doubt that cases of paying diyah from the public treasury are exhaustively listed in law and cases related to war martyrs are not mentioned therein, he compared the Islamic Penal Codes of 1991 and 2013. He demonstrated that the number of cases anticipated for paying diyah from the public treasury increased from seven cases in the 1991 law to sixteen cases in the 2013 law. This indicates the legislator’s flexibility in adding new cases; therefore, from this perspective, there is no problem with including the diyah of martyrs among cases payable from the public treasury. He added that in case of government inability to pay, this issue will also be examinable like other cases.

Jurisprudential Definition of “Martyr” and the Right to Receive Diyah:

The Director of the Department of Criminal Jurisprudence at the Higher Institute of Jurisprudence and Islamic Sciences further addressed the main discussion surrounding whether diyah applies to a “martyr.” Citing jurisprudential texts, he offered a precise definition of a martyr on the battlefield (shahid fi al-ma’rakah) and enumerated three fundamental conditions:

• Being killed in war by command of the Islamic ruler: This condition includes offensive and defensive war, requiring permission from the Sharia ruler (the Infallible, special deputy, or in some views, general deputy). Regarding defensive war, some jurists believe the obligation of defense renders ruler permission unnecessary.

• Being killed “in the cause of God” (fi sabil Allah): This condition emphasizes divine motivation for being killed and must not be confused with cases like being killed in illegitimate groups.

• Possessing the title of “combatant” (razmandeh): The individual must customarily (‘urfan) represent a combatant, even if not engaged in direct combat at the moment of martyrdom.

Hujjat al-Islam wal-Muslimeen Baqeri, referring to rulings (istifta’at) of Grand Marjas of Imitation, emphasized the necessity of fulfilling these conditions for applying the title “martyr” and consequently examining the right to receive diyah. He stated that these jurisprudential discussions form the legal basis of the “establishment” of diyah for martyrs, as he elaborated on new dimensions of the concept of “martyr on the battlefield” and answered jurisprudential doubts surrounding their receipt of diyah.

Expansion of the Concept of “Martyr on the Battlefield” in Modern Warfare:

The Director of the Department of Criminal Jurisprudence at the Higher Institute of Jurisprudence and Islamic Sciences, referring to battlefield developments, including the use of missiles and extensive attacks, stated that the concept of “martyr on the battlefield” must also be expanded. He added that individuals subjected to missile attacks, even if serving in military garrisons, missile sites, or defensive centers of the country, can—given the scope of today’s battle area—be given the title “martyr on the battlefield,” whereas the situation of individuals residing in their homes and martyred due to bombings requires examination.

He emphasized that these individuals lack the title “combatant,” creating challenges in applying diyah to them. Nevertheless, he argued that one cannot deprive them of the right to receive diyah solely due to the non-application of the title “combatant.” One raised doubt is that because institutions like the Martyrs Foundation pay pensions to these individuals, diyah should no longer apply to them.

Hujjat al-Islam wal-Muslimeen Baqeri rejected this argument and presented two major reasons:

1. Difference in legal nature: A pension according to the “Comprehensive Law on Services to Veterans” belongs to specific heirs (spouse, child, and in some cases parents), differing in nature from diyah, which belongs to the total estate (tarkah) and is subject to rules of inheritance, bequests, and debts. Debts take precedence over inheritance and bequests.

2. Difference in scope: Prioritizing payments (the more important over the important) based on societal conditions and the country’s economic status is a separate matter and must not obstruct the realization of the right to diyah.

Response to the Doubt of No Need for Worldly Diyah Due to Otherworldly Reward:

Raising the doubt that because martyrs possess otherworldly rewards with God (“alive with their Lord, receiving provision”), they do not need to receive worldly diyah, and rejecting this argument, he stated that the jurisprudential rule “a Muslim person’s blood shall not be wasted” (la yabtul damu imri’in muslim) applies even to martyrs. He emphasized that receiving otherworldly reward does not prevent restoring a person’s material and worldly right in the form of diyah.

Critiques of Dr. Arasta and Dr. Raha’i Regarding State Responsibility in Paying Diyah for War Victims

Hujjat al-Islam wal-Muslimeen Dr. Javad Arasta, Faculty Member of the University of Tehran

Continuing the session examining the responsibility of the Islamic government regarding war victims, two critics of this research, Dr. Raha’i and Dr. Arasta, raising a set of jurisprudential and methodological objections, criticized the foundations, problem title, and evidence presented in the study, emphasizing the necessity of precisely redefining the subject.

Hujjat al-Islam wal-Muslimeen Dr. Javad Arasta, faculty member of the University of Tehran, at the beginning of his speech, pointing to the manner of entering the discussion, stated: “The expectation was that Professor Baqeri would first establish a rule or ruling regarding the requirement that diyah must be paid by the Islamic government, and then examine and answer objections raised in this area.” He added that instead of such an approach, one should go directly to the proofs and clarify whether the Islamic government is fundamentally obligated to pay diyah under the assumption in question or not.

The faculty member of the University of Tehran further posited a primary rule, stating: “The establishment of diyah pertains to where murder is attributable to a specific person.” According to him, diyah applies where murder is attributed to a specific individual; therefore, under the assumption that the killing of war victims is not attributable to the Iranian government, it “bears no duty regarding paying diyah to the families of victims.”

Dr. Arasta then referred to evidence cited by the researcher himself, including juristic consensus (ijma’) that “diyah is not established for a Muslim used as a shield by disbelievers.” He argued: “If diyah is not established for Muslims used as shields by disbelievers, we can say regarding those killed in the present war—whose situation is far different from those used as defensive shields by disbelievers—a fortiori… the non-establishment of diyah upon the public treasury of Muslims” is concluded.

He further considered the continuous practice of Muslims (sirah mustamirrah) an important proof, stating that this practice existed from the time of the Holy Prophet (s) and Commander of the Faithful (a), indicating “the non-payment of diyah to families of Muslims killed due to war or killed due to plundering.” Citing the book Al-Gharat, he explained that despite widespread raids during the time of Commander of the Faithful (a), “no diyah was paid to families of individuals killed due to these raids.”

Dr. Arasta also cited verse 33 of Surah Al-Isra: “And whoever is killed unjustly—We have given his heir authority” (wa man qutila mazluman faqad ja’alna li-waliyyihi sultanan), emphasizing that this verse “indicates retribution per se,” and converting it to diyah “requires proof, which has not been produced.” According to him, even if in some cases the right to retribution converts to diyah, the general applicability (itlaq) of the verse is restricted by the practice of Muslims and the conduct of the Prophet (s) and Commander of the Faithful (a).

He also discussed the rule “a Muslim person’s blood shall not be wasted,” stating that this rule does not encompass victims of wars such as the Iran-US and Israel war, because “we cannot attribute the killing of these individuals to the Islamic government.” He clarified, however, that if the Islamic government neglected securing safety, attribution could then be accepted, directing responsibility toward the state.

Hujjat al-Islam wal-Muslimeen Arasta relied on the rule “the public treasury is designated for public interests” (bayt al-mal mu’add li al-masalih), citing a narration from the time of Commander of the Faithful (a) regarding an elderly blind Christian man: “You employed him until he grew old and infirm, then you withheld from him… Spend upon him from the public treasury.” From this narration, he concluded that the public treasury is not solely for Muslims or needy individuals, but for the general interests of Islamic society, and can include supporting needy non-Muslims as well.

Hujjat al-Islam wal-Muslimeen Dr. Sa’id Raha’i, professor of advanced jurisprudence (Bahth al-Kharij) and associate professor at Mofid University, acting as the second critic of the session, prior to entering proofs, considered the problem title problematic, stating: “Responsibility is directed at the state or ruler, and the public treasury is merely the payment source.” He also emphasized that the expression “martyrs” in the problem title, in his view, is not relevant, and it would have been better to use the title “war victims.” According to him, whether one is a “war victim” or not does not prevent raising discussions of liability and compensation.

The professor of advanced jurisprudence and associate professor at Mofid University also warned regarding the jurisprudential basis of responsibility, stating that it must be clarified on which rule this responsibility rests, because “the state is not the destroyer (mutlif)” and the assumption under discussion is that the Islamic government was performing its duty when attacked. He considered wartime conditions different from peaceful conditions, emphasizing that in war, neither the rule of retribution applies in the usual manner, nor necessarily diyah.

He further pointed to the international responsibility of states, stating: “International responsibility is directed at the violating state, not the state subjected to aggression.” He added that in humanitarian law, if non-combatants are killed, compensation lies upon the aggressor state; however, in human rights law, the attacked state bears the duty to protect individuals’ rights and provide supportive assistance, although these aids are not “diyah” in its jurisprudential sense.

Continuing the session, Hujjat al-Islam wal-Muslimeen Dr. Mohammadi, as one of the attendees, expressed his views, emphasizing in his analysis of state responsibility toward war victims the necessity of revising jurisprudential foundations and practical consequences of this topic. Pointing to the lack of sufficient historical documentation regarding the practice of the Prophet (s) and Imams (a) in paying diyah in similar cases, he considered this matter a subject of serious doubt.

Dr. Mohammadi stated: “If [the practice of paying diyah in wars] existed, it would certainly have reached us. Thus, because it has not reached us, it did not exist.” With this argument, he underscored the necessity of caution in citing matters lacking solid historical backing.

This researcher, also raising questions regarding the consequences of accepting full state responsibility to pay diyah in extensive warfare scenarios, including the use of weapons of mass destruction, stated: “Consider if the enemy uses nuclear weapons and kills hundreds of thousands of people, would you advocate state responsibility to pay diyah to all of them? Realistically, this is impossible.”

Hujjat al-Islam wal-Muslimeen Mohammadi further considered the rule “the public treasury is designated for public interests” a foundation for “supporting” victims, not necessarily “paying diyah.” He sought to define the government’s duty in this area as fulfilling public interest and supporting victims, rather than discharging a diyah debt in its jurisprudential sense. This viewpoint shifts focus from state legal liability toward supportive and social duties.

Also in this session, Hujjat al-Islam wal-Muslimeen Dr. Bay, referring to the arguments presented, emphasized the necessity of separating rules of individual and mass killings in war, stating: “Verses such as ‘And for you in legal retribution is life’ (wa lakum fi al-qisasi hayatun) pertain to individual and personal killings, not mass killings in war.”

He also referred to narrations regarding the martyrdom of combatants, adding: “The Prophet (s) did not establish diyah for combatants fighting in the cause of God; rather, he considered it a ‘trade’ (tijarah) with God and ordained otherworldly reward for their jihad.”

Hujjat al-Islam wal-Muslimeen Bay considered certain arguments regarding heirs’ involvement in retribution in wartime cases—especially in early Islamic battles—unacceptable and inconsistent with the chaotic nature of war. He also emphasized the continuous practice of Muslims and jurisprudential rules regarding conquered lands (maftuhah), stating: “Nowhere was it the case that the Prophet (s) called individuals one by one in war and demanded compensation for damages inflicted on property or lives from them.”

According to him, these rules encompass bodily injuries (life and sub-life) and financial losses (such as horses, camels, armor, etc.), and this practice holds true regarding prisoners as well, since the Quran refers to grace (mann) or ransom (fida’) regarding prisoners, not implementing diyah rulings. Concluding his remarks, Dr. Bay stated that the lack of reporting on certain war details does not indicate the non-existence of practice or ruling, emphasizing the necessity of considering these distinctions in jurisprudential discussions.