Death Penalty Worldwide recently updated its research on the death penalty in Eritrea. You can read the full Eritrea report here.
Death Penalty Worldwide recently updated its research on the death penalty in Eritrea. You can read the full Eritrea report here.
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
Yemen is a party to the Convention on the Rights of the Child, which expressly prohibits the execution of individuals who were under the age of 18 at the time of the offense for which they were convicted. Article 31 of Yemen’s Evidence Code also expressly prohibits the execution of a person who at the time of the alleged crime was a minor: “If the perpetrator was between fifteen and eighteen of age he shall be sentenced to no more than half the maximum penalty prescribed by the law, and when such punishment is the death penalty he shall be sentenced instead to imprisonment for a term of not less than three years and not more than ten years.” Article 47 of the Yemeni constitution states that, “there shall be no crime nor a punishment without a reference in the law.” Furthermore, Article 48 (a) states that, “the state will ensure personal freedom, dignity and security.” And Article 48 (h) of the same constitution states that “physical or psychological torture is a crime punishable by the law.”
These constitutional principles taken together mean that, in theory, there should be no Yemeni children on death row. However, as a Human Rights Watch (“HRW”) report shows, Yemen is one of four countries that still executes children in disregard of both national and international law.
According to the HRW report, as of March 4, 2013 there were 23 juveniles on death row in Yemen, all of whom had been convicted and sentenced to death despite being under the age of 18 at the time of the crime, and despite serious allegations that they were systematically tortured during their interrogation.
Juvenile convictions are often obtained in Yemen because of the simple fact that many individuals have no governmental ID or birth certificate to prove their age at the time of the crime or at the time of the future execution. As such, Yemen fails twice in observing its obligations under international law. First, each state is obligated to provide children with a universal, mandatory, free and adequate registration system. Such an obligation is widely recognized under various instruments of international law. For example, the right of registration is recognized in Article 24 of the ICCPR that states, “Every child shall be registered immediately after birth.” It had been also recognized in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. In its 1997 “Guidelines for Action on Children in the Criminal Justice System,” the Economic and Social Council (ECOSOC) stated that, “States should ensure the effectiveness of their birth registration programmes. In those instances where the age of the child involved in the justice system is unknown, measures should be taken to ensure that the true age of the child is ascertained by independent and objective assessment.”
The second failure has to do with the judiciary’s reluctance to protect juvenile offenders by giving them access to a reliable medical test to determine their actual age and by giving them the right to contest their age determination. A child without a provable date of birth is extremely vulnerable, since he will not have the legal and procedural rights and assurances that are linked to his juvenile status, particularly in relation to sentencing.
The risk of sentencing children to death becomes more pronounced when the judiciary fails to ensure that the burden of proof for establishing a juvenile’s age falls on the state. Such standards were established by the Committee on the Rights of the Child in its 10th General Comment where the Committee stated: “If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.” In other words, in case of doubt as to a defendant’s actual age, the court must observe and extend the presumption of innocence and the doubt shall be interpreted in favor of the suspect.
However, as was documented by HRW, in many cases the Yemeni courts and the justice system in general failed to observe these well-established international standards and chose to ignore the claims and the evidence raised by juveniles, making it virtually impossible, without the existence of official documents, to convince the court of the juvenile’s age at the time of the crime. By doing so, the justice system denies children the protection of Yemen’s law forbidding the imposition of the death penalty on juvenile offenders. By denying them their right to prove their age, the court fails its obligation to protect and observe the right of minors not to be sentenced as adults, in accordance with article 31 of the Yemeni Evidence Law that clearly states that: “A person does not have a full criminal liability if he was less than eighteen at the time of the committed act, and if the age of the accused cannot be established the judge must estimate his age with help of an expert.”
Finally, the HRW report shows that some of these juveniles were sentenced to death based on confessions that were extracted by torture and cruel and degrading treatment. This practice must stop immediately. Yemen’s government and its judiciary must discharge their responsibility to protect children in conflict with the law. They must investigate the allegations of widespread torture in its prisons and during police investigations. The government should also re-open all criminal cases which ended with death sentences for alleged juvenile offenders.
For more information, watch this video of Human Rights Watch’s report:
 Human Rights Watch, “Look at Us with a Merciful Eye”, March 4, 2013. http://www.hrw.org/reports/2013/03/04/look-us-merciful-eye.
In the past year, a significant number of foreign nationals have been sentenced to death in Malaysia for drug trafficking. Malaysia’s Dangerous Drugs Act (1952) is one of the strictest drug laws in the world, carrying the mandatory death penalty for possession and distribution of drugs.
The mandatory death penalty for drug traffickers is inherently unfair in its application. Many individuals sentenced to death under Malaysia’s harsh drug laws are foreign nationals who serve as drug mules, the most vulnerable and arguably the least responsible drug trafficking offenders. Drug mules are paid by distributors to simply transport drugs across international borders. Singapore, which also imposes the mandatory death penalty for drug trafficking, decided last year to factor in the extent of involvement and to allow judges to give life sentences to drug couriers. The amendment generated a landmark ruling in November that lifted the death penalty on a drug trafficker for the first time. Unlike its neighbor, Malaysia has continued its tough approach to international drug trafficking. Numerous foreign nationals from several countries, including Sweden, Nigeria, Iran, Thailand, Mexico, Uzbekistan and Germany, are facing the gallows for their arguably minimal part in the distribution of illegal narcotics.
Foreign nationals are intrinsically more vulnerable as capital defendants. They face language and cultural barriers, lack knowledge of the Malaysian legal system, have limited access to legal counsel, and are far from their support networks. Such obstacles may cause foreign nationals on death row to fare worse than their Malaysian counterparts in an already arbitrary mandatory sentencing regime.
Recent studies in the United States have shown that there is no evidence that the death penalty is an effective deterrent to crime. This raises the important question: will Malaysia reform its flawed mandatory death penalty system? During 2014, Malaysia has seen two instances of a possible reversal of recent trends. The first was the release of two brothers on death row in January, followed by the stay of another execution in February, both rare occurrences in Malaysia. While these two developments do not give us an answer, they look to be a step in the right direction for Malaysia moving forward.
-- Edward Jun and Jee Won Oh
On January 21, 2014, India’s Supreme Court reaffirmed the right to life in a landmark decision that cited international human rights standards. In Shatrughan Chauhan & Another vs Union of India & Others, the Supreme Court commuted the death sentences of 15 prisoners. The decision strongly emphasized the human rights of death row prisoners – denouncing such practices as executing individuals with mental illness, solitary confinement, and prolonged detention on death row.
Much of the court’s decision focused on the nature of the clemency process under Indian law. Indian law provides that death row inmates can apply for clemency by submitting “mercy petitions” to the President. The court held that “[m]ercy jurisprudence is part of an evolving standard of decency, which is the hallmark of society.” The court repeatedly noted that clemency is not merely a matter of grace, but is a constitutional duty of great significance that must be exercised responsibly and expeditiously.
The Supreme Court faulted the executive for its inexcusable delay in considering the clemency petitions of 13 petitioners. Drawing heavily on the jurisprudence of the Privy Council and the European Court on Human Rights, the court reasoned that delay in the execution of a death sentence causes psychological torture. The court observed that “undue, inordinate, and unreasonable delay” in carrying out the death sentence constitutes torture and justifies commutation to life imprisonment.
Equally important, the court commuted the death sentences of two prisoners based on evidence that they suffered from mental illness. The court embraced international norms prohibiting the execution of prisoners with mental illness, citing Resolution 2000/65 of the former UN Human Rights Commission calling upon all states to refrain from executing any person who suffers from “any form of mental disorder,” as well as a 1996 report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and the UN General Assembly’s 2007 resolution calling for a moratorium on the death penalty. In the case of Maganlal Barela, the court condemned the failure of the executive branch to consider evidence of the petitioner’s mental illness as grounds for clemency.
The court also addressed the issue of solitary confinement, finding that death row inmates may not be held in solitary confinement until their mercy petitions have been denied. According to the court, solitary confinement constitutes “additional and separate punishment” that is unconstitutional. Further, the court issued guidelines for the clemency process to protect the rights of death row prisoners moving forward. The judges held that prisoners have a right to legal aid to prepare legal challenges to the clemency process and to be informed of the result of their mercy petition in writing. In addition, prison officials must ensure that prisoners receive regular mental health evaluations and be given “appropriate medical care.” Finally, the court determined that the government must carry out post-mortem examinations of executed prisoners to provide the courts with data on the cause of death, which will allow for consideration of whether hanging constitutes cruel and inhuman punishment.
Less than a month after this landmark decision, the Supreme Court commuted the death sentences of three individuals convicted of the 1991 assassination of former Prime Minister Rajiv Gandhi. The Court reasoned that the unreasonable delay in considering the inmates’ mercy petitions, a delay of more than 11 years, warranted a commutation of their death sentences. It also rebuffed the Attorney General’s argument that in order to have their sentences commuted, death row inmates had to prove actual harm occasioned by the delay. The court reaffirmed the fundamental rights of all citizens, including death row inmates.
The decisions come at an especially important time in India, as it had recently begun carrying out executions again after what many considered to be an undeclared moratorium on the death penalty. The decisions have also re-ignited the public debate over the death penalty in India.
-- Sandra Babcock and Shubra Ohri
Last Friday, Judge Brinkema reaffirmed her earlier ruling that it is unconstitutional to automatically put death row inmates in solitary confinement. She rejected Virginia’s arguments that she should delay the implementation of her order on the grounds that it would be too difficult for the prisons to make the changes that she demanded. Before her November 2013 ruling, capital offenders in Virginia were automatically placed in solitary confinement upon sentencing, without the possibility of subsequent review. Judge Brinkema’s ruling is significant in bringing US practices one step closer to being in line with international human rights law. Her holding is consistent with the growing international consensus that recognizes the cruel and inhuman aspects of solitary confinement.
On the occasion of Cities for Life Day on November 30, the Taiwan Alliance to End the Death Penalty (TAEDP) and the World Coalition Against the Death Penalty are proud to announce the online publication of the Chinese version of Representing Individuals Facing the Death Penalty: A Best Practices Manual. This publication is intended for lawyers who defend people facing the death penalty around the world.
This guide was made possible through cooperation between Death Penalty Worldwide, a website managed by Sandra Babcock, Professor at the Center for International Human Rights, Northwestern University School of Law; the World Coalition Against the Death Penalty; and lawyers from around 15 countries including Taiwan and China. The traditional Chinese version follows the publication of the English and French editions last May. It was revised by TAEDP, lawyers Weng Guoyan, Li Ailun, Chen Youning and Professor Jin Menghua. This version is now available for download by defence lawyers working on capital cases. (A simplified Chinese version will soon follow after revisions by lawyer Teng Biao of China Against the Death Penalty.) You can download the guide here: http://www.deathpenaltyworldwide.org/pdf/death-penalty-manual-chinese.pdf
In a statement welcoming the publication of the Chinese version, Prof Babcock said: “Taiwanese and Chinese lawyers are facing enormous difficulties when they defend people facing the death penalty. Those cases are a lot thornier than the average criminal case. I hope this manual will be useful to them and will help them advocate more efficiently for their clients’ rights to a fair trial, from the time of their arrest to their final appeal.”
TAEDP, the Legal Aid Foundation and the Human Rights Commission of the Taipei Bar Association are planning a series of workshops in the New Year to teach lawyers how to best use the guide. The three organizations are also planning to adapt the manual to publish a guide dedicated to defence lawyers in capital cases in Taiwan specifically by the end of 2014.
For more information, watch the following videos:
On November 12, 2013, Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia held that automatic and permanent placement of death row prisoners in solitary confinement violates the U.S. Constitution in Prieto v. Clark. In the United States, a majority of prisoners on death row will serve years in solitary confinement, awaiting execution. Although international human rights bodies have recognized that solitary confinement can constitute a form of torture; Prieto is one of a few U.S. cases that highlight the inhuman aspects of prolonged solitary confinement.
In Virginia, capital offenders are automatically placed in solitary confinement upon sentencing, without the possibility of subsequent classification review. Death row prisoners are isolated in their cells for 23 hours a day, the lights are always on, and they are only allowed five hours of recreation a week. The judge described these conditions as “dehumanizing.”
In her holding, Judge Brinkema commented that while not all incidences of solitary confinement are unconstitutional, conditions that constitute “atypical and significant, hardship” without the potential for reclassification violate the Due Process Clause of the Fourteenth Amendment. The plaintiff’s confinement, in this case, was held to be such a hardship. Judge Brinkema noted that the prisoner’s solitary confinement furthered few, if any, penological interests.
Solitary confinement, in combination with the mental torment of a pending execution, causes severe mental suffering. The UN Special Rapporteur on Torture recently concluded that solitary confinement can amount to torture because of the devastating and irreversible psychological effects it has on detainees. Likewise, the Human Rights Committee concluded that prolonged solitary confinement can amount to torture or other cruel, inhuman or degrading treatment. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment explains that torture includes “the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses.”
Although Prieto does not cite this international authority, the court’s conclusions are consistent with the growing consensus that solitary confinement is unnecessarily cruel and inhumane. Judge Brinkema’s holding, which explicitly recognizes the cruel and inhuman aspects of solitary confinement, represents a step in the right direction.
- Shubra Ohri
Although North Korea goes to great lengths to conceal its use of capital punishment, our research reveals that the country sentences its citizens to death for an astonishing array of crimes, ranging from political offenses to petty theft. We have just updated our research based on our review of North Korea’s amendment to its Penal Code (in the original language) and other sources that shed light on the country’s arbitrary use of the death penalty as an instrument of state power.
The North Korean Criminal Code includes 22 death-eligible crimes, most of them defined simply as “especially serious” categories of criminal offenses. But the term “especially serious” is interpreted with Orwellian irony: executions have reportedly been carried out for offenses such as stealing six cows or half a sack of rice. Perhaps the most farcical provision of the North Korean penal code provides that an individual convicted of an “especially serious” case of being a “scoundrel” is punishable by death.
Death sentences may also be imposed for political offenses such as “ideological divergence,” “opposing socialism,” and “counterrevolutionary crimes.” In practice, the regime appears to use capital punishment not only to punish perceived dissidents, but also to rid itself of individuals who have somehow embarrassed the regime. For instance, a former Cabinet official who was in charge of talks with South Korea was reportedly executed by firing squad for policy failure in 2010, and in 2012, Kim Chol, North Korea’s Vice Minister of the People’s Armed Forces, was reportedly executed for drinking alcohol during the mourning period for former leader Kim Jong-il.
Most executions reportedly take place in North Korea’s notorious political prison camps that hold prisoners who have allegedly committed political crimes, along with every member of their families for “guilt by association.” Political or “anti-state” offenses are considered most serious, and those who are convicted of such offenses are never released from detention. People have reportedly been detained for listening to South Korean broadcasts, possessing Bibles (in spite of constitutional protection of religious freedom), and attempting to flee the country.
At the political prison camps, living conditions are reported to be barely habitable. In Yodok camp, for instance, detainees and prison guards report that extreme hunger causes inmates to resort to eating snakes or rats. Sanitation is poor and prisoners do not change their clothes during their incarceration and are rarely able to bathe or wash their clothing. One toilet is reportedly shared by 200 prisoners, no blankets are available in the winter, and public executions are carried out in front of prisoners, including executions of family members. Yet North Korean representatives have told the UN Human Rights Council that public executions are carried out to punish “very brutal violent crimes” and used only “in very exceptional cases.”
North Korea’s practices provide the clearest example of how the death penalty may be used for political ends. With no respect for the rule of law, no independent judiciary, and no respect for fundamental human rights, the current regime is unlikely to reform its use of the death penalty in the near future.
-- Jee Won Oh and Sandra Babcock
Based on newly obtained information on South Korea’s criminal legislation (in the original language), Death Penalty Worldwide has significantly updated and revised its research on South Korea. Since its last execution in December 1997, South Korea’s stance on the death penalty has seemed rather ambivalent. When former President Kim Dae-jung took office in 1998, it seemed as though South Korea was beginning to inch toward abolition. Kim was a former death row inmate and an outspoken opponent of the death penalty. Yet efforts to abolish capital punishment have never moved forward – the National Assembly has failed to pass three bills aimed at abolition and the Constitutional Court has twice upheld the death penalty in the face of constitutional challenges. In fact, South Korea passed new legislation in 2010 that expanded the number of death-eligible crimes.
South Korea’s official position in the international arena has been just as ambivalent. While repeatedly abstaining from voting on the UN General Assembly’s Moratorium on the Death Penalty Resolution, the South Korean government has expressed its willingness to consider ratifying the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.
It appears, however, as though South Korea may be moving backwards in the midst of a global trend against the death penalty. Current President Park Geun-hye publicly expressed her support for capital punishment five months prior to taking office, and a recent survey of college students indicated that 76% of the respondents were in favor of resuming executions in response to the rise in heinous crimes. In 2012, the government delegation stated at South Korea’s Universal Periodic Review at the UN Human Rights Council that the abolition of the death penalty required careful review of “public opinion and … social realities.” In our view, an official moratorium on executions, let alone abolition of the death penalty, cannot be expected in the short term.
-- Jee Won Oh