The Death Penalty in International law

The practice in Arab Countries

 

1. Introduction

 Everyone has the inherent right to life. This is a fundamental principle that underpins international law. Accordingly, no one shall be arbitrarily deprived of his or her life. The death penalty is not prohibited as such in international law. However, when implemented, the punishment is irreversible. Life is lost. Often, families and others are deeply affected by that. Therefore, international law and the will of the international community have developed to consider the death penalty the most exceptional punishment, imposed and implemented only in extreme exceptions and only after many safeguards are taken. The will of the international community has also developed in the last few years towards the complete abolishing of the penalty. Short of that, in the states that did not abolish the death penalty, the move is towards a moratorium on the death penalty pending full abolition.

As the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who is also mandated to examine the issue of death penalty, explains that “given the fundamental nature of the right to life, the circumstances in which the death penalty may lawfully be applied are strictly circumscribed. Executions carried out in violation of those limits are unlawful killings.”[1]

 

2. International law

The main provisions of UN human rights treaties that relate to the death penalty are embodied in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 37 (a) of the Convention on the Rights of the Child (a). The United Nations Economic and Social Council adopted resolution 1984/50 on 25 May 1984 in which it has developed the Safeguards guaranteeing protection of the rights of those facing the death penalty.

The standards embodies in these treaties and safeguards can be summarised as follows

-          In countries which have not abolished the death penalty, sentence of death may be imposed only for the “most serious crimes”

-          It can be imposed in accordance with the law in force at the time of the commission of the crime (non-retroactivity)

-          Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age

-          Sentence to death shall not be carried out on pregnant women.

-          Sentence to death shall not be imposed on persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution

-          Presumption of innocence: capital punishment can be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.

-          Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial. The obligation of states to observe rigorously all the guarantees for a fair trial allows for no exception.

-          Any person sentenced to death shall have the right to appeal to a court of higher jurisdiction. This should ensure full review of both the conviction and sentence, including of the factual basis of the verdict.

-          Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.

-          Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.

-          Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. It shall not be carried out in public or in any other degrading manner. Any application of particularly cruel or inhuman means of execution, such as stoning, must be stopped immediately.

-          Cruel, inhuman or degrading treatment may be involved not only as a result of physical circumstances, but also as a consequence of the mental anguish caused by spending an excessive length of time on death row. This applies not only to the condemned person but also to his or her family members and friends.

 In addition to that, states that ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights agree to ensure that no one within their jurisdiction shall be executed; and that they take measures to abolish the death penalty. Importantly, the Protocol does not allow for reservations to be entered into provisions of the Protocol.

 The rights to life and the tight regulations in relation to the imposition of the death penalty cannot be subject to any derogation in any situation, including a state of emergency.

 

3. Interpretation of the standards

 Abiding by the concept of “most serious crimes” is of utmost importance in the restriction of the death penalty to the bare minimum in the countries that still maintain the punishment. Application of this safeguard in recent years has focused on two main issues: the mandatory death penalty, and the use of the death penalty for crimes that are not intentional and that do not have lethal or other extremely grave consequences.

 As a general rule, the Commission on Human Rights called on states in its 2005 resolution on the death penalty to ensure that the death penalty “is not imposed for nonviolent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults, nor as a mandatory sentence”.[2]

 This has been subject to clarifications and interpretation. The UN General Assembly and the Economic and Social Council have clarified that “it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences”.[3] The Special Rapporteur on extrajudicial, summary or arbitrary executions, building on the jurisprudence of Human Rights Committee and other UN bodies, further clarifies that a wide range of specific offences fall outside the scope of the “most serious crimes” for which the death penalty may be imposed. These include: abduction not resulting in death, abetting suicide, adultery, apostasy, corruption, drug-related offences, economic crimes, the expression of conscience, financial crimes, and embezzlement by officials, evasion of military service, homosexual acts, illicit sex, and sexual relations between consenting adults, theft or robbery by force, religious practice, and political offences.[4] 

The Special Rapporteur concludes after reviewing UN sources that “the death penalty can only be imposed in such a way that it complies with the stricture that it must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life.”[5] He further clarified that “a death sentence can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life”.[6]

Mandatory sentencing is also of particular importance to Arab countries as it is a common justification that judges use for the imposition of the death sentence citing that they have to do it “because the law prescribes it” as the punishment for the crime at hand. According to the Human Rights Committee, a mandatory sentence fails to take into account the defendant’s personal circumstances and the circumstances of the offence.[7] The Special Rapporteur comes to the conclusion that considering that it has been consistently found in practice that “permitting mandatory death sentences makes it inevitable that some persons will be sentenced to death even though that sentence is disproportionate to the facts of their crimes”.  It is clear, therefore, that “in death penalty cases, individualized sentencing by the judiciary is required to prevent cruel, inhuman or degrading punishment and the arbitrary deprivation of life.”[8]

 

4. The situation in Arab countries

 The provisions of the 2004 Arab Charter on Human Rights are not all consistent with international law in relation to right to life and the death penalty. The Charter recognises the inherent right to life like international treaties. It provides “Sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of commission of the crime and pursuant to a final judgement rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” However, the imposition of the death penalty against children is prohibited, unless allowed by national legislation. This is in glaring and alarming contradiction with international law. States that ratified the Charter are: Algeria, Libya, Jordan, Palestine, Syria, Saudi Arabia, Qatar, United Arab Emirates, Bahrain and Yemen. These have all ratified the Convention on the Rights of the Child, and many have ratified the ICCPR.

 In December 2007 and 2008 the United Nations General Assembly adopted resolutions 62/149 and 63/168, calling for a moratorium on the use of the death penalty. Since then, other regional bodies or civil society coalitions adopted resolutions and declarations advocating for a moratorium on executions as a step towards global abolition of the death penalty. The resolution is coming before the General Assembly again at the end of 2010, and it is hoped that more countries from the MENA region supports the resolution. In 2008, the support to the resolution among members of the League of Arab States increased compared to the previous year. Algeria was one of the co-sponsors and voted with the resolution. Bahrain, Djibouti, Lebanon, Morocco, Jordan, Oman, Mauritania and the United Arab Emirates abstained rather than voting against and lobbying actively against the resolution. Tunisia was absent.

 One of the main problems in the legislation in the Arab region is that the number of crimes punishable by death is very high, and is not restricted to the “most serious crimes”. An examination of the penal laws in Arab countries reveals unfortunately and rather quickly that many of the offences that do not fall within the category of “most serious crimes” as clarified above are common offences punishable by the capital punishment in most Arab countries. UN expert bodies express concern over this. For example, in the case of Jordan, Egypt, Syria, Yemen, and Morocco, the Human Rights Committee welcomed commutation of the sentence, but expressed concern over the number of offences punishable by the death penalty, and recommended that the number of such offences be reduced to a minimum, with a view to abolishing capital punishment, and to commute the sentences of all persons sentenced to death.[9]

 Of particular concern to human rights expert bodies is the repeated imposition of the death penalty in Arab countries in the last few years for terrorism-related charges. The comments of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism after his visit to Egypt in April are very relevant and can be used as a guide to similar concerns to other countries in the region.

 The Special Rapporteur raised concern initially at the wide definition of terrorism, which, in addition to violent acts extends to include “any threat or intimidation” with the aim of “disturbing the peace or jeopardizing the safety and security of the society” and, furthermore, contains a wide range of purposes, such as “to prevent or impede the public authorities in the performance of their work or thwart the application of the Constitution or of laws or regulations”. According to the Special Rapporteur, this “runs the risk of including acts that do not comprise a sufficient relation to violent terrorist crimes.”[10] The Rapporteur is also of the opinion that the law should not define a terrorist organization on the basis of its aim to commit any act legally characterized as terrorist, rather than on the commission of specific acts. The Special Rapporteur expressed particular concern that several of the offences covered by the law are subject to the death penalty. He also spoke against penalizing leadership of such an organization with the death penalty. Of particular concern was the amendments to the Code of Military Justice in July 2007, which allow persons convicted of terrorist offences by a military court to appeal the judgement before the Supreme Court for Military Appeals. Such review is restricted to questions of law and procedural issues only. Also the fact that judgements pronounced in first instance by the Emergency Supreme State Security Courts are not subject to appeal and become final only after ratification by the President is of deep concern. He reiterated that “the right to a full review of the conviction and sentence by a higher court becomes particularly crucial when convictions may lead to the death penalty, which has indeed been the case in several terrorism trials in Egypt.”[11]

 There has also been concern over sentencing people to death following trials that do not meet international standards of fairness. Trials before exceptional courts, under emergency regulations, or military courts in the Arab countries do not meet international standards. There have also often been concerns about the possible use of torture or ill-treatment to extract confessions, and the use of such confessions in court proceedings that lead to the imposition of the death sentence. Such allegations of torture and ill-treatment are rarely investigated thoroughly by an independent body. Detention of persons incommunicado for long periods of time, which in itself amounts to torture or ill-treatment, has also often been used. Finally, there have been reported restrictions on access to legal counsel in many cases.

 The Human Rights Committee expressed concern that provisions in the Yemeni law are not consistent with the requirements of ICCPR and that the right to seek a pardon is not guaranteed for all on an equal footing. The preponderant role of the victim’s family in deciding whether or not the penalty is carried out on the basis of financial compensation “blood money” was also deemed by the Human Rights Committee to be contrary to the ICCPR.

 Also concern  have been expressed by Committee on the Rights of the Child as well as several special rapporteurs over the imposition of the death sentence on children under the age of 18 at the time of the commission of the alleged crime in both Saudi Arabia and Yemen. Saudi Arabia stated to the Committee on the Rights of the Child that it never imposes the death penalty against persons who did not attain the age of majority. The question is, however, what the majority age is. Judges in Saudi Arabia have the power to determine the age of majority, and as a consequence capital punishment is imposed for offences committed by persons before they have reached the age of 18.[12] A similar system is found in Yemen.

 Also, CERD was concerned at allegations that a disproportionate number of foreigners are facing the death penalty and encouraged Saudi Arabia to cooperate fully with the Special Rapporteur on extrajudicial, summary and arbitrary executions.[13]

 

5. Conclusion

Some Arab countries have recently started process of reviewing their penal law with the view of reducing the crimes punishable by death. This is a very positive step. The voting pattern by Arab states in the General Assembly over the Moratorium resolution also reflects a positive trend towards considering a moratorium or abolition.

However, much still needs to be done in the region. Judges play important role in this. One of the main concerns is surely the unfairness of trials that lead to the death penalty. Also judges must play pivotal role to ensure that death sentence is not imposed automatically for every crime punishable by death; they take a very close look at every case; and that they restrict the imposition of the death penalty, if they do, to the most serious crimes. Considering the wide scope of the death penalty in the region, and the frequency of unfair trials in many such cases, it is also essential that sentences to death are commuted. And finally, the civil society plays a major role in building the support to the abolishing of the death penalty, including by explaining how the practice is against international law.

Mervat Rishmawi, previous legal advisor to the Middle East and North Africa at the International Secretariat of Amnesty International



[1] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24, 20 May 2010, para. 50.

[2] Commission on Human Rights resolution 2005/5:  “The question of the death penalty”, para. 7 (f).

[3] Paragraph 1 of the Safeguards guaranteeing protection of the rights of those facing the death penalty, Economic and Social Council resolution 1984/50 of 25 May 1984.

[4] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/4/20, 29 January 2007, para. 51

[5] Ibid

[6] Ibid

[7] Report of the Secretary-General: Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, E/2010/10, 18 December 2009, para 61.

[8] Report of the Special Rapporteur, A/HRC/4/20, paras. 61 and 62.

[9] See Human Rights Committee Jordan: HRC CCPR/C/79/Add.35, para. 8., Morocco ?????, Yemen, ICCPR, A/57/40 vol. I (2002) 73 at para. 83(15), Egypt, ICCPR, A/58/40 vol. I (2002) 31 at paras. 77(12) and 77(16), Syrian Arab Republic, ICCPR, A/60/40 vol. I (2005) 78 at para. 94(7).

[10] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Mission to Egypt, A/HRC/13/37/Add.2, 14 October 2009, para 11.

[11] Ibid, para 33.

 

[12] Committee on the Rights of the Child: Saudi Arabia, CRC/C/SAU/CO/2, para. 32.

[13] Saudi Arabia, CERD, A/58/18 (2003) 41 at para. 218.




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