Death Penalty Worldwide

Blog

07/14/2014

Uganda Conducts Resentencing Hearings in the Wake of the Kigula Decision

Our guest blogger, Tanya Murshed, is the Uganda Project Director for the Centre of Capital Punishment Studies and is a practicing barrister at 1 Mitre Court Buildings in London. 

In April 2013, I left my practice in London for eight months to volunteer for the Centre for Capital Punishment Studies’ (CCPS) Capital Mitigation Project in Kampala. CCPS is based at the University of Westminster in London and undertakes numerous pioneering activities within the field of the death penalty and penal research.

The CCPS Uganda Capital Mitigation Project was started in 2011, in the aftermath of the landmark Supreme Court Judgment of Attorney General v Susan Kigula and 417 others, which abolished the mandatory death penalty. The Supreme Court decided two main points of law. Firstly, for all those who had been sentenced under the mandatory death sentence regime, their death sentences were to be commuted to life imprisonment without remission if they had waited three years or more for the executive to process their petition of mercy, following confirmation of their conviction by the Supreme Court. Secondly, those individuals who were still in the process of appealing their capital conviction would have their cases remitted back to the High Court for re-sentencing. The individuals affected by this aspect of the ruling are known as the “Kigula beneficiaries.” Accordingly, sentencing judges were given the discretion to impose the death penalty or some other form of punishment on the basis of mitigation put forward by, or on behalf of the defendant.  

When I arrived in Uganda, approximately 60 individuals had gone back for mitigation since the judgment in 2009, in a somewhat haphazard way. The re-sentencing process had proved more difficult than anticipated, as many of the files were in different courts around the country and some of the judges who presided over the original trials had since retired or died. The Project was able to assist in a number of those initial cases, leading to the release of some inmates, and fixed term sentences for others. However, some of the sentences passed attracted much criticism for leniency and inconsistency. A Kigula Task force, formed in 2012, decided to adopt a more systematic approach to the re-sentencing process for the remaining beneficiaries by introducing special mitigation sessions where judges would apply formal Sentencing Guidelines. 

It was clear from visits to Luzira Prison in Kampala, where all of the Kigula beneficiaries were located, that we were the only project trying to assist the remaining beneficiaries who had been held in the condemned section without a sentence for many years.   

Having forged a new partnership with the Uganda Law Society and Justice Centres Uganda, we approached the Kigula Task Force to see how we could assist.  A special session was planned for all Kigula cases whose files had been sent back to the High Court. Ten judges, ten defense advocates and ten prosecutors were selected to participate in the mitigation and sentencing of 136 beneficiaries. Our project was heavily involved in this process and we were identified as a key stakeholder by the Kigula Task Force.

We provided assistance in a number of ways, including obtaining secretarial support from the Office of the High Commissioner for Human Rights (OHCHR) so that case files could be photocopied for all parties and acting as a liaison between the prisons and the courts.  We provided training to lawyers and judges in the principles of mitigation and international sentencing practice, and collected mitigating evidence through our student interns at Makerere Law School on behalf of the inmates.  

We also acted as amicus curiae by providing written representations on the legal issues affecting the sentencing of Kigula beneficiaries. The re-sentencing exercise was clearly a complicated one and a number of issues arose for consideration. One contentious matter was the relevance of post-conviction mitigation. Some of the prisoners had languished on death row for as long as 20 years and were inevitably different from the people they were on the day they were convicted, having undertaken several rehabilitative courses in prison.  We also assisted the judges with the definition of the ‘rarest of the rare’ case; the relevance of mental health problems (both pre and post-conviction); the sentencing of offenders who were minors at the time of the offense; whether the beneficiaries should be considered still on remand for the purposes of sentencing and the approach to sentencing victims of domestic violence who had murdered their spouses. These issues were novel to many judges and assistance was vital to ensuring the fairness of proceedings.

Notably, we piloted a scheme of Pre-sentence and Social Inquiry Reports and mental health assessments for every inmate appearing for re-sentencing.

Pre-sentence reports are used in other jurisdictions and indeed are mandatory in some countries for the most serious offenses. It was clear from observations at the Kampala High Court that judges were not being provided with sufficient background information about a defendant prior to sentencing Even after the launch of the first official Sentencing Guidelines in June 2013, which imposed a duty on the defense and prosecution to provide background information about an offender, detailed information was not being presented by either advocate. Importantly, any information put forward was of limited value to the court, as it was not sufficiently independent.

In conjunction with the Uganda Law Society, we obtained funding for social workers from the Democratic Governance Facility for the Ministry of Gender, Labour and Social development to complete these reports. There were two groups of workers: the first group conducted interviews with the inmate and produced a pre-sentence report. These interviews focussed on obtaining information from the offender regarding his/her background; his/her progress in prison and the reasons for his/her offending behavior.  They also consulted various official documents such as medical reports and prison reports in order to address medical issues, progress and behavior in prison. The social workers conducted an independent assessment of the offender’s thinking, behavior and capacity to reform which was contained in the report.

The second stage of the exercise involved district social workers, also from the Ministry of Gender, who made inquiries in the offenders’ home villages, in order to gain further information about their background and to ascertain whether the offenders could be re-integrated into the community or re-located if released. These social workers provided Social Inquiry Reports.  

With respect to the mental health reports, we felt that these were of considerable importance for various reasons. International law prohibits the imposition of the death penalty on anyone suffering from mental illness or learning disability at the time of conviction, sentence, or execution. Furthermore, a person cannot be deemed incapable of reform without a psychiatric report.  Most inmates had not been examined by a psychiatrist on entry to prison and any previous assessments were completely out of date. We were also concerned that many of the beneficiaries were suffering from death row syndrome, having been in the condemned sections for years. These assessments were carried out by a consultant psychiatrist whose reports addressed not only mental health issues and learning difficulties, but medical problems as well.

Out of the 136 people that went for re-sentencing, 15 individuals were released, nine were given death sentences; one was given a Minister’s Order due to minority status; four were referred to a Psychiatric facility, 22 were given life sentences and 85 were given fixed terms of imprisonment.  

The session was a success in many ways. Apart from the 9 individuals who had their death sentences confirmed (which have since been appealed), 127 individuals finally left the condemned section of Luzira prison and some were released unconditionally back into the outside world after many years. It was a joyous occasion for a considerable number of the beneficiaries. However, it was clear from the hearings and subsequent judgments that judges applied an inconsistent approach to sentencing and that there were a number of issues that still had not been resolved. Some judges took irrelevant matters into account; there was a failure by some to understand the relevance of mental health issues at the sentencing stage; there was an inconsistent approach to post-conviction mitigation, a lack of understanding of the ‘rarest of the rare’ standard and a number of age-related issues. The pre-sentence reports received a mixed reception, with one judge describing them as ‘very very useful’ and some disregarding them altogether. With respect to the lawyers we trained, most of them welcomed our guidance and support but there were one or two who outright rejected it to the dismay of the many of the inmates. 

The second special session involving 93 individuals is due to start today. In order to improve upon the last session and ensure greater consistency, we held a workshop with judges, lawyers and other stakeholders to discuss the issues that arose in the last session as well as the importance of pre-sentence reports and mental health assessments. Further training has been provided for the social workers to improve upon the quality of pre-sentence and social inquiry reports on this occasion, which we hope will become an integral part of capital sentencing practice.

We hope that we will be able to continue to make progress and assist the judiciary and advocates in Uganda into the future, building capacity.  Although it took many years to start the re-sentencing process for most of the Kigula beneficiaries, that process has now begun and different parts of the judicial system are working together in ways not previously seen.  This will be of benefit not only to the Kigula beneficiaries, but to the Ugandan justice system as a whole. We have certainly been in a privileged position, able to assist not only the inmates but also advocates and the judiciary who have welcomed our support.  Looking to the future, we are hopeful that we will be able to continue to build capacity and contribute further to issues surrounding access to justice and law reform. 

 

-- Tanya Murshed

 

For further background, Death Penalty Worldwide’s research on capital punishment in Uganda is available here.

05/16/2014

Capital Punishment in Ethiopia

As part of its ongoing review of the death penalty in Sub-Saharan Africa, Death Penalty Worldwide recently updated its report on the death penalty in Ethiopia.

The death penalty is rarely applied in Ethiopia, but there is considerable resistance to the prospect of abolishing capital punishment, and in the past few years Ethiopia reaffirmed its commitment to the death penalty before the UN. Since 2007, the UN General Assembly has voted four times in favor of a resolution to impose a global moratorium on executions—and with each successive resolution, more states have joined the ranks of those opposed to the application of the death penalty. Despite having only carried out two executions in the past sixteen years, Ethiopia is among a minority of states to have voted against all four Resolutions – along with the states which have the highest execution numbers in the world, such as China, Iran, Saudi Arabia, and the United States. (A favorable vote was recorded in 2008 but the Ethiopian delegates later declared that there had been an error and that they had intended to vote against.)

The last two executions in Ethiopia were carried out in 2007 and 1998 respectively. Both executed prisoners had been convicted of assassinating a high ranking government or military official. It is entirely possible that the political ramifications of these offenses were decisive in the authorities’ decision to enforce the death sentences. Meanwhile, however, Ethiopian courts continue to hand down death sentences for offenses which fall short of such exceptional circumstances.  In addition to murder, the criminal code mandates the death penalty for aggravated robbery (even when it doesn’t lead to death), treason and espionage, and military offenses.  Ethiopian courts hand down death sentences almost every year and we estimate that there are currently around 120 prisoners under sentence of death.

Based on the country’s recent record, it is likely that the majority of these death sentences will not be carried out. For the country’s growing number of death row inmates, this may mean a reprieve, but it also means a de facto sentence of indefinite imprisonment. Year after year, under life-threatening conditions of detention, death row inmates in Ethiopia – as in many countries with de facto moratoria on executions – face a future in an uncertain limbo between life and death.

 

-- Delphine Lourtau

 

05/14/2014

Uganda Update: Efforts to Streamline Capital Trials Raise Due Process Concerns, While Other Prisoners Await New Sentencing Hearings Nine Years After Landmark Decision

Death Penalty Worldwide recently updated its research on the death penalty in Uganda.  Our research shows that although Uganda has not carried out any executions since 2005, courts continue to impose death sentences for a variety of offenses.  We estimate that there are at least 293 individuals currently under sentence of death, and many more who are awaiting trial on death-eligible offenses.  In order to handle the large number of capital cases on remand, the Justice Law and Order Sector launched a program of targeted and intensified capital trials to reduce the average time capital offenders spend in pretrial detention. High Court judges are under an obligation to hear thirty cases and sentence fifty to sixty defendants in a 40-day session. Observers have expressed concern about the protection of fair trial principles in such an expedited system.  

In a watershed development, the mandatory death penalty was deemed unconstitutional in Uganda by the Constitutional Court in 2005 in Susan Kigula and 416 others v. The Attorney General.  Over the last nine years, the courts have made slow but steady progress in their efforts to comply with the Kigula judgment by providing resentencing hearings for each prisoner given a mandatory death sentence.  In 2013, the Constitution Sentencing Guidelines for Courts of Judicature Practice Directions set out mitigating factors for all judges to consider during resentencing hearings.  These factors include considerations such as the age of the individual at the time of the crime, mental health issues and demonstrated potential for rehabilitation. As of April 2014, 196 of the “Kigula beneficiaries” have been resentenced—a laudable development.  Nevertheless, around 192 individuals are still waiting to be resentenced and have already spent 9 years in prison under constitutionally invalid sentences.  

- Shubra Ohri

04/30/2014

Oklahoma’s Execution Process: Unlawful, Inhumane, and Immoral

Last night, Oklahoma executed Clayton Lockett using a combination of drugs that had never before been used to kill a human being.  Oklahoma refused to disclose the source of the drugs in the weeks leading up to the execution, dismissing attorneys’ concerns that using the untested drugs could cause an excruciatingly painful death.  The Oklahoma Supreme Court issued a short-lived stay of execution, but then backed down after pressure from the Oklahoma Governor (who said she would disregard the Court’s stay order) and Oklahoma legislators (who threatened to impeach the justices).

The sequence of events leading to Lockett’s death has been described by a number of sources, including the New York Times.  There is no dispute that Lockett died an agonizing death.  He was executed using a three-drug combination that included midazolam, pancuronium bromide, and potassium choride.  The first drug, midazolam, should have rendered him unconscious, but it failed to do so—either because it wasn’t administered in a high enough dose, or because it was not properly injected into one of his veins.  The second drug, pancuronium bromide, should have paralyzed him so that he couldn’t move.  Yet Lockett was still moving after more than 13 minutes had passed—and by some accounts, he was writhing in pain, grimacing, speaking, and struggling to sit up.  The third drug, potassium chloride, causes a massive heart attack that experts say would cause unbearable pain if the prisoner is not sedated.  In fact, Clayton Lockett died of a heart attack 43 minutes after the drugs were first injected into his body.

Attorneys around the country have fought to persuade the courts that they should not permit executions to go forward in the absence of evidence that lethal injection drugs are reliable and effective.  Courts in Texas, Oklahoma, and Missouri, among other states, have rejected these arguments, largely because of a U.S. Supreme Court decision called Baze v. Rees.  In Baze, the Supreme Court dismissed the petitioner’s argument that poorly trained prison staff could administer improper doses of the sedative that renders a prisoner unconscious.  In essence, the Supreme Court held that an execution method that results in pain, “either by accident or as an inescapable consequence of death,” does not constitute cruel and unusual punishment.  The Court shifted the burden to the prisoner to establish that “the State’s lethal injection protocol creates a demonstrated risk of severe pain.”

Baze must now be re-examined.  The botched execution of Clayton Lockett calls for effective judicial oversight of state lethal injection protocols.  Moreover, there can be little doubt that an execution procedure that results in prolonged agony for the prisoner is not only inhumane, it is torturous. 

More than 20 years ago, in Ng v. Canada, the United Nations Human Rights Committee held that executing prisoners using the gas chamber constituted cruel, inhuman or degrading treatment or punishment.  Their rationale:  “asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes.”  In light of the 43 minutes that it took Clayton Lockett to die, there can be little doubt that his execution violated international norms providing that the death penalty can only be carried out in a manner that causes “the least possible physical and mental suffering.” 

Given the evidence that Oklahoma's actions violated the Torture Convention, President Obama should ensure that an impartial investigation is carried out under Article 12 of the Convention.

 

-- Sandra Babcock

 

04/21/2014

The Impact of the Death Penalty on Defense Lawyers

Our guest blogger, Susannah Sheffer, is the author of Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys, and has worked for the past decade as staff writer at Murder Victims' Families for Human Rights. 

Having worked for years with families of murder victims and families of people who have been executed, I have spent many hours listening and trying to learn as much as I can about the impact of both murder and the death penalty. More recently, I got curious about how capital defense attorneys fit into this emotional landscape, particularly those attorneys who have lost clients to execution. When I began interviewing attorneys and exploring the impact of the immense responsibility and loss that is inherent in their work, it became clear that this was largely unexplored territory. Capital defense attorneys don't tend to talk openly about how their work affects them and what it is like, personally, to do what they do and see what they see. 

The book Fighting for Their Lives http://www.susannahsheffer.com/fighting-for-their-lives.html, which came out last year, is the result of interviews with 20 post-conviction capital defense attorneys in the United States. A few weeks ago, Penal Reform International invited me to contribute a short briefing paper on the topic. It was meant to be a summary of the material in Fighting for Their Lives, but given that PRI is an international organization, it made sense to include voices from lawyers in other countries as well. Despite the differences in some aspects of the death penalty and of capital defense, it seems to me that the emotional impact on the attorneys is essentially the same. Here is the paper that PRI published earlier this month:

http://www.penalreform.org/resource/fighting-clients-lives-impact-death-penalty-defence-lawyers.

 

-- Susannah Sheffer

04/16/2014

The Death Penalty in Iran – No Improvement and Broken Promises

Despite a change in leadership and the introduction of an amended penal code, Iran’s aggressive use of the death penalty continues unabated. Our recent assessment of Iran (which you can read here) confirms that hundreds of people are regularly executed every year.  Furthermore, Iran has resumed secretly executing large groups of people, after temporarily halting the practice in 2011 due to international criticism.  The number of people executed in one occasion has been as high as 50.

Amendments to the Islamic Penal Code in 2013 did not limit the application of the death penalty.  On the contrary, the Penal Code retained the death penalty for most crimes that were previously death-eligible and added a few more.  It expanded upon the category of national security crimes, including vaguely worded crimes like “sowing corruption” and “armed rebellion,” which further criminalize political dissent.   The Penal Code also continues to treat some “crimes” as capital offences even though they do not meet the “most serious” standard under international law, which requires that capital offenses result in the death of a person.  Particularly troubling, the amended Penal Code retains stoning as a possible method of execution for individuals convicted of adultery and apostasy.

Iran continues to be the world’s biggest executioner of child offenders, despite requests from the former head of judiciary in 2003 and 2008 that judges not issue execution verdicts for children under eighteen. Based on reports by non-governmental organizations, we estimate that nineteen juveniles have been executed in the past five years. Although the Iranian government has stated that the amended Penal Code abolishes the execution of children, it only prohibits the execution of children for drug offenses and other “discretionary crimes.”  Article 91 of the amended Islamic Penal Code permits the execution of juveniles for other offenses, such as crimes under shariah, if judges deem that the juvenile is mature enough to understand the nature and consequences of the offense. Iran Human Rights has reported that just last month, one person was executed for a murder allegedly committed when he was 17.[1]

The new Islamic Penal Code amendments do nothing to improve the administration of the death penalty in Iran.  Individuals can be executed for a great number of crimes with minimal due process protections.  Iran, regrettably, continues to steer further and further away from compliance with its international human rights obligations.

 

-- Shubra Ohri



[1] Iran Human Rights, Execution of a minor offender in Iran, http://iranhr.net/2014/03/execution-of-a-minor-offender-in-iran, Mar. 7, 2014. 

04/14/2014

The Consequences of Wrongfully Convicting the World’s Longest Serving Death Row Inmate

Iwao Hakamada, a man widely believed to be the world’s longest serving death row inmate, may have been serving time for nothing at all.  On March 27, 2014, the Shizouka District Court in Japan suspended his sentence because new evidence suggests that he was wrongfully convicted.  Mr. Hakamada was sentenced to death in 1968 for murder, but new DNA evidence points to his innocence, leading many to believe that his original conviction was based on falsified evidence.  The Court released Hakamada from the Tokyo Detention House after his petition for a retrial was granted.  To date, Hakamda has served nearly 50 years on death row; 30 of those years were spent in solitary confinement.  Hakamada is not the first person in Japan to be wrongfully convicted, but his case exemplifies the abhorrent consequences of violations to the right to a fair trial.

Hakamada’s retrial represents the 6th time since 1945 that the courts in Japan have granted a retrial in a death penalty case. Incidences of wrongful convictions are being uncovered more frequently in Japan.  This may be on account of pretrial detentions in police custody, the daiyo kangoku system, which can lead to lengthy interrogations.  The United Nations Committee Against Torture has expressed concern about the system, stating that the lack of effective monitoring and reported abuse raised concerns about human rights violations.  Indeed, physical and psychological torture during interrogations  is a significant source of false confessions.  Iwao Hakamda’s interrogation lasted for 20 days, and although he confessed during the interrogation, he ultimately claimed he was innocent at trial. About half of the people on death row in Japan claim they are not guilty of all or part of the charges for which they have been convicted.

If exonerated, Hakamada has a right to compensation under Japanese and international law.  Article 14 of the International Covenant on Civil and Political Rights protects the right to compensation, which can be satisfied in several ways.  Conferring discretion to a judicial body to determine compensation is the means that Japan has chosen to fulfill its obligations under the ICCPR.  Article 40 of the Japanese Constitution stipulates that courts will decide the amount of compensation as provided by law.  The Criminal Compensation Act further provides that the amount of compensation shall be determined after considering the length of detention, mental and physical loss suffered, and negligence by the police and prosecutors.

Hakamada’s resentencing, accompanied by public outrage, will add further ammunition to the movement for criminal justice reform in Japan.  For more information on wrongful convictions under international law, see the Death Penalty Worldwide’s post on innocence and wrongful convictions here.

-- Shubra Ohri

04/10/2014

The World’s Top Executioner: Capital Punishment in China

Death Penalty Worldwide has just updated its research on capital punishment in China. China executes thousands of people every year, but it’s difficult to provide exact figures because of the secrecy surrounding executions.  Another non-governmental organization, the Dui Hua Foundation, estimates that China executed 3000 people in 2013—more than the rest of the world put together.  

The number of executions in China is particularly troubling in light of reports that capital defendants do not receive fair trials according to international standards. Suspects are sometimes denied access to attorneys, lawyers are barred from representing certain clients, and courts withhold evidence in politically sensitive cases. Moreover, defendants are presumed guilty and must prove their innocence, with the result that 99.9% of criminal defendants are found guilty.  Appeals are rarely successful. Recent cases have also raised the concern that the death penalty is applied primarily against the poor. In September 2013, an impoverished street vendor who claimed to have stabbed two officers in self-defense during an interrogation was executed for murder. His attorney maintains that key evidence was missing during his trial. In contrast, Gu Kailai, the wife of former Politburo member Bo Xilai and daughter of a revolutionary general, was given a suspended death sentence in August 2012 on grounds of mental illness after being convicted of planning and carrying out the murder of a foreign businessman.

Despite China’s seeming enthusiasm for the death penalty, the country has enacted important reforms in recent years aimed at reducing the total number of executions.  In 2007, the Supreme People’s Court reclaimed its right to review every death sentence, after which the estimated number of executions was reduced by half. China took a further step away from the death penalty in 2011 by reducing the number of death-eligible crimes from 68 to 55 and banning the death penalty against those aged over 75 in an amendment to the Criminal Law. Recently, the president of the Supreme People’s Court publicly urged courts to hand out fewer death sentences. China may be far from abolishing capital punishment, but these are noteworthy reforms for the world’s top executioner.

Although the Chinese government is striving to curb its use of the death penalty through legal reform, it has yet to ratify any international treaties that impose restrictions on the use of the death penalty. China is not a party to the ICCPR and has repeatedly voted against the UN General Assembly’s Moratorium on the Death Penalty Resolution. Even in the absence of international commitments, China should enact reforms that will enhance fair trial protections and reduce the arbitrary application of the death penalty. The extent to which Chinese leaders are willing to implement additional domestic reforms will be paramount in China’s efforts to reduce the volume of executions.

-- Jee Won Oh

You can access Death Penalty Worldwide’s full research on capital punishment in China here.  

04/09/2014

Capital Punishment in Eritrea

Death Penalty Worldwide recently updated its research on the death penalty in Eritrea. You can read the full Eritrea report here.

04/07/2014

Political Fragmentation and the Death Penalty under the Palestinian National Authority

Since its establishment in 1994, the Palestinian National Authority (“PNA”) has issued 131 death sentences against Palestinian civilians charged with various crimes. To date, at least 29 of these sentences have been carried out. Sixteen executions were carried out by the Hamas de facto government in Gaza, which resumed executions in 2009, while the remaining 13 executions were carried out by the PNA in the West Bank. All of the PNA’s executions were carried out before 2005.  This last fact illustrates the divergent policies by the PNA in the West Bank and the Gaza de facto government regarding the issue of the death penalty.

Indeed, one of the main barriers to abolition of capital punishment in the PNA is the state of deep fragmentation that characterizes the PNA in the Occupied Territories (“POT”). This fragmentation is partly political:  in 2007, inter-Palestinian clashes in the Gaza strip between Fatah and Hamas factions led to the establishment of two contesting Palestinian authorities, one in the West Bank controlled by President Mahmud Abbas and the Fatah, and another in the Gaza strip as a de facto administration controlled by Hamas. The question of the death penalty became a highly political issue between these two parties in 2009 after president Abbas’ term in office expired.  No elections could be held to replace him because Hamas and Fatah failed to reach a political settlement regarding the necessity for new elections.  The political differences between the two authorities are exacerbated by the Israeli siege on the Gaza Strip that has isolated Gaza from the outside world and from the rest of the West Bank, as well as the international political and economic pressure exerted on the PNA, mainly by the American administration and Israel, to resist accommodating Hamas (thereby preventing national unity in the POT). This inability to hold new elections,  amongst other things, meant that there was a constitutional vacuum regarding the question of the ratification of death sentences, since imposing the death penalty under the Palestinian judicial system requires the approval of the PNA President. This constitutional vacuum led the Interior Ministry in Gaza to resume carrying out death sentences without the mandated presidential approval.

The interior minister’s decision in Gaza to carry out death sentences has more to do with inter-Palestinian political struggles over constitutional power than with the actual debate on the question of the death penalty in Palestinian society. The decision was designed to challenge President Mahmoud Abbas’s presidential authority on the one hand, and on the other, to assert Hamas’ political authority and constitutional legitimacy as the sole legally elected government in the Palestinian occupied territory. This decision is consistent with a growing political and legal strategy adopted by both sides that adds to an ever-growing number of human rights violations and breaches of the rule of law in an effort to oppress political opponents on both sides in the controlled area. As such, the resumption of death penalty was accompanied by other human rights violations like widespread torture, the increased use of military courts for both criminal and political prisoners, and a general disrespect of the law.     

But the fragmentation in the PNA over the application of the death penalty is not merely political:  its origins are rooted in the unique and complex legal, geographical and historical context of the POT and the creation of the PNA.   No fewer than three different Penal Codes entrench the death penalty. These codes are the Jordanian Penal Law No. 16 of 1960 which contains sixteen different crimes punishable by death (this code is applicable to the West Bank); the Penal Law No. 74 of 1936 amended by Egyptian Military Decree No. 555 of 1957, which contains fifteen different capital crimes (this code is applicable in the Gaza strip); and lastly the PLO Revolutionary Code of 1979 that was applicable to the diaspora and which contains 42 different crimes punishable by death. These different codes are, as one can imagine, archaic, ambivalent in their language, and most important many of the capital offenses they define have to do with political crimes against the states.

Jurisdiction over capital crimes is also fragmented: some capital crimes are referred to military courts or state national security courts, and others are referred to civilian courts. This fragmentation creates problems such as the arbitrary use of a court by the state, or civilians being charged in military courts, thus violating their rights to due process as well as their rights to appeal.  The fragmentation of the judicial system and the involvement of military courts in civilian life weakens the power of the judicial system to develop better legal protections for individuals charged with capital crimes.

The judicial system is further compromised by Israel’s application of its own legal system in the occupied territories, which weakens the PNA judicial system and prevents it from developing a strong, independent and coherent judiciary that can restrain the executive branch.

There are of course many other continuing obstacles to the ongoing attempts by civil society, legislatures and national and international bodies to bring the PNA to abolish the death penalty - such as the ongoing Israeli occupation, the Israeli use of Palestinian collaborators for targeted killing, the  enforcement of  Israel’s security apparatus that undermines the PNA’s effective control over its population in terms of maintaining law and order, and finally the ongoing political crises of 2007 and the constitutional crises of 2009. One possible and effective solution to these crises would be the creation of a new unitary PNA Penal Code and the abandonment of the other Penal Codes along with the death penalties they mandate. To reach this outcome, however, the PNA must hold new elections or establish an interim government with Hamas that will have the mandate to revise the PNA Penal Code. In the short term, the president of the PNA, Mr. Abbas, can issue a presidential decree declaring that he will not sign any execution orders until a more modern and unified Penal Code is implemented. One more step towards abolition would be for the PNA to sign the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, in order to establish an international obligation for the future PNA government to abolish the capital punishment in law. 

 

-- Tamer Massalha