Download Death Penalty in the Arab World

Death Penalty in the Arab World
A Study on Death Penalty in 11 Arab Countries
Prepared by
Arab Penal Reform Organization APRO
Bahrain - Egypt - Jordan –- Iraq – Kuwait- Lebanon- Morocco- Palestine –
Saudi Arabia – Syria–Yemen
Participants
Mohammed Majid Aljshi
Imad El Fiqi
Reda Mezher Al Azzawi
Jaber Melkkawi – Nasreen Zoreqat
Mubarak Saadoun Al-Motawe
Neama Gomaa
Yousef Medad
Hassan Salim – Wesam Sahwil
Khalid Al Ghonami
Abdel Rahim Ghammaza – Ammar Qurabi
Hayfaa Al Shahari
Country
Bahrain
Egypt
Iraq
Jordan
Kuwait
Lebanon
Morocco
Palestine
Saudi Arabia
Syria
Yemen
Supervised by:
Mohammad Zarea
Lawyer
General Director of the Arab Penal Reform Organization
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Introduction of the Arab Penal Reform Organization (APRO)
It gives me great pleasure to present this distinctive study about "the death penalty in the
Arab world", which addresses so many important issues, not only to people who are
concerned with law, but also to people who are interested and are working in the field of
human rights, at both the domestic and international level, because it is closely related to a
main and integral right of human rights which is the right to life.
The study includes the laws of the death penalty in eleven Arab countries Bahrain -Egypt –
Jordan –Iraq – Kuwait- Lebanon- Morocco-Palestine- Saudi Arabia- Syria-Yemen.
The study comes in the framework of the continuous endeavors of the Arab Penal Reform
Organization to purify Arab criminal legislation of imbalances and shortcomings so that the
laws can become congruent with human rights without breaches.
It is worth mentioning that the research compiled in this study does not necessarily reflect the
opinion of APRO on this issue, but in fact reflects the point of view of their owners.
Mohammad Zarea
Lawyer
General Director of the Arab Penal Reform Organization.
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Introduction
The death penalty is one of many penalties that have aroused controversy on a wide scale,
specifically from the eighteenth century. The controversy of its punitive value and legitimacy
as a reflection to the social reaction to the offender is still present to this day.
Not surprisingly, the death penalty is one of the oldest known punishments by mankind, and
most seriously, it leads to the loss of the spirit of the convicted person. Thus, it violates a
fundamental right, which is the rights to life, and is considered one of the most important and
sacred of human rights.
The essence of the death penalty is the eradication of life for the condemned.
Death penalty was a common practice in ancient heavenly religions, especially in times
dominated by the idea of religious revenge. Additionally, it was implemented in a brutal and
cruel way accompanied by terrible methods of torture.
The death penalty has not been controversial in the old legislation; it has been recognized by
scholars without attempting to justify it, as governors and legislators apply it without
resistance from thinkers and philosophers. In the modern era, controversy has arisen about
the feasibility and legality of the death penalty as a form of social reaction to the offender.
The eighteenth century is marked by philosophical ideas which attacked the prevailing penal
systems, as studies and research have appeared on the social and anthropological causes of
crime.
Thus, two intellectual trends have appeared on the horizon: those in favor of retaining the
death penalty, and those demanding its abolishment. Each trend has its reasons and pretexts
supporting their thoughts concerning the death penalty.
Hence, the study analyses and examines "The Death Penalty in the Arab World" through a
series of distinctive research methods, addressing the death penalty in ten Arab countries. The
following is presented according to a signal research plan that includes: crimes punishable by
death, and procedural guarantees on the death penalty and its adequacy, as well as putting
forward many proposals and recommendations on the abolishment of the death penalty.
This study includes the death penalty in ten Arab countries: Bahrain - Egypt - Jordan - Iraq –
Lebanon- Morocco- Palestine - Saudi Arabia – Syria- Yemen.
1. Bahrain:
The Bahraini legislator has decided the death penalty for many crimes, whether in the Penal
Code, or in some special criminal laws, such as the law on drugs, and anti-terrorism law.
Since 1977, the regular and exceptional Bahraini courts (State Security) have issued only
eight death sentences, not all of them have been implemented yet.
It is worth mentioning that the military trials in Bahrain have not issued any death sentences
since its inception.
2. Egypt:
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The Egyptian legislator has decided the death sentence for a very large percentage of crimes,
which is, regarded so serious that they deserving the death penalty. So he decided the death
penalty in each of the following four laws:
1. Penal Code.
2. Martial law.
3. Drug Law.
4. Arms and Ammunition Law.
After a careful study on crimes punishable by death in the Egyptian legislation, we can say in
good conscience that the Egyptian legislator determines the death penalty lavishly.
Some of these crimes belong to non-harmful crimes; which are formal crimes, punishable by
death, merely for conducting criminal behavior without looking to achieve a particular result.
Moreover, the legislator did not define clearly and precisely the criminal behavior for some
crimes punishable by death, but only as a general terms, for example, Article 77 of the Penal
Code, which states: “it shall be sentenced to death whoever deliberately committed an act
threatening the independence of unity of the country or the territorial integrity.” And the final
paragraph of Article 12 of the Arms and Ammunition Law.
No doubt that, this behavior forms violation of the principle of the legitimacy of crimes and
penalties provided in Article 66 of the Egyptian Constitution.
On the other hand, the Egyptian legislator violated the constitutional principles, as well, in his
recognition of the death penalty, as there is a lack of proportionality between the penalty and
the crime prevailing in many offenses punishable by death in all laws.
On the procedural point, the safeguards surrounded the sentence of the death penalty by the
legislator are insufficient and do not ensure good judgment in this penalty.
3. Iraq:
The Iraqi legislator was extravagant and has expanded the scope of the application for the
death penalty. The Iraqi Penal Code involves a very large number of crimes punishable by
death. The Iraqi legislator has decided the death penalty for the commission of a series of
crimes mentioned in the Anti-Terrorism Law and the Drugs Law.
With regard to the Iraqi judiciary, it is obvious that the primary criminal courts do not tend to
activate the death penalty, while the Court of Cassation in Iraq is clearly inclined to tighten
the punishment against the perpetrators, particularly punishable by death.
In addition, the safeguards in their various forms, which may be considered preliminary and
discriminatory guarantees, are not sufficient to make the Iraqi law responsive to the
international charters and treaties.
4. Jordan:
Article 17 of the Jordanian Penal Code defines the death penalty as, "hanging the sentenced
person to death."
The issue of death penalty in Jordan takes a positive dimension. Despite the increasing
number of death sentences, death penalty has been abolished in some crimes, such as the
crime of the production and manufacture of drugs (Article 10 of the Law on Narcotic Drugs
and Psychotropic Substances). In 2006, the death penalty was abolished for the crime of
assault with the intention of preventing authorities from exercising their missions derived
from the Constitution, punishable under Article 138 of the Penal Code.
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In addition, Article 148 of the Penal Code has replaced the death sentence with a life sentence
whenever the convicted person is a pregnant woman.
The Jordanian law provided 25 cases punishable by death mentioned in the Jordanian Penal
Code No. 16 of 1960, as amended, the Military Penal Code, and the Law on the Protection of
State Secrets No. 50/1971.
The procedural Jordanian legislator has surrounded the death penalty by several safeguards,
including the investigation process and the trial; however such safeguards are not enough.
5. Kuwait
Laws relating to the application of death penalty are based on the Islamic Sharia as they
relied on sayings of Allah in Surat Al Bakara "Cow" (you believer people, retribution is
imposed in murders, free people to free people and slave to slave and female to female,
female and female, and who is pardoned by his brother he should behave well and this is
relief and mercy from God and who exceeds that he will have painful punishment) verse
(178), as well as bulk the saying in Surat Al - Maida (Banquet) (I have imposed on them that
life to life and an eye for an eye, nose to nose and a tooth for a tooth, and wounds shouled be
reattributed, and who is pardoned it is good of him and who follow God's rules he is evildoers) verse (44).
6. Lebanon:
The Lebanese Penal Code determines the death penalty for a large number of crimes, such as:
the abuse of the right to life, crimes of sedition, terrorism, crime of hijacking an aircraft in
flight, if the offender committed any act of sabotage by any means to the plane rendering it at
risk of crashing, or the destruction of it, or if the act resulted in the death of a human being by
terror.
Additionally, the Lebanese legislator has included the death penalty in the Military Penal
Code for a number of crimes, such as the crime of desertion, crimes against honor and
military duty, crimes of military treason and conspiracy, robberies and destruction.
The Lebanese legislator has additionally included the death penalty in some special criminal
laws, such as the law on narcotic drugs and psychotropic substances issued in 1998. This
penalty has been decided for a number of crimes, such as the crime of assault on a public
officials in charge of implementing the provisions of this law, if the act resulted in the death
of an official, as well as the law of the maintenance of the environment from pollution by
hazardous waste and materials issued in No. 64 of 1988, amended by Law No. 266 of 1993.
The Articles 10, 11 of this law stated the application of the death penalty "on both ... who
imported, brought, possessed or transfer nuclear waste or contaminated by nuclear
radioactivity, or contains toxic chemicals, or hazardous to public safety ... and who throw in
rivers and water carriers, sea and other waterways harmful substances.”
7. Morocco:
The Moroccan legislator has decided the death penalty for the commission of numerous
crimes considered serious, or accompanied to certain conditions. This is clear in many of the
crimes addressed in the Penal Code of 26/11/1962, and the Military Penal Code issued on
10/11/1956 and in the Anti-Terrorism Law complementary to Chapter 218 of the Penal Code,
as well as crimes on the health of the nation's individuals.
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It should be noted that the Moroccan Penal Code decides the death penalty on many crimes,
especially crimes of aggression against the king and royal family, the external and internal
security of the State, violent assault on persons, and setting fire.
Moroccan criminal system has not considered any amendment that would reduce the
proportion of crimes punishable by death, but on the contrary, many amendments have been
carried out lately that led to the increase of the percentage of crimes punishable by death,
including the amendments on the fight against terrorism in 2002. The number of cases
punishable by the death penalty according to the four laws aforementioned is more than 600
cases. The Penal Code includes 283 cases punishable by death, spread over 28 Chapters' of
domestic law, each article of the laws includes several cases involving punishable by death,
some of them reach to more than 200 cases.
8. Palestine:
There is no unified Penal Code in Palestine, but there are several laws: in the West Bank,
courts apply the Jordanian Penal Code No. 16 of 1960, and Gaza applies Mandatory Penal
Code No. 74 of 1936 as amended by order of the military ruler of Egypt No. 555 for the year
1957, and sometimes the military tribunals, and the Revolutionary Penal Code of Liberation
Organization of 1979. In addition, a set of special laws complementary to the Penal Code are
applied in the West Bank and Gaza Strip, such as the law of Dangerous Drugs, explosives
law, and the laws relating to minors. The Israeli occupation authorities introduced some
amendments to the Penal Code; adding new crimes, and placed additional provisions to
criminalize certain acts, as well as some military orders concerning with the death penalty.
9. Saudi Arabia:
Kingdom of Saudi Arabia decides the death penalty in accordance with the ordinances of
Islamic law. The death penalty is applied in the Kingdom in the following cases: limits and
retaliation, discretionary disciplinary punishment, apostasy from religion, spy, married
adulterer, highway robbery, sodomy, abandonment of prayer as being an infidel and apostate
who should be killed and not enshrouded, washed after death, prayed for him, or buried in
Muslims' cemeteries, and not to have his wealth inherited. He shall be killed for leaving one
prayer.
10. Syria:
The Syrian legislator has expanded the use of the death penalty under the Special Penal
Decree, such as the law of the affiliation to the Muslim Brotherhood Organization, and the
imposition of these punishments in multiple cases in laws against the objectives of the
Revolution, the protection of the socialist system, the security of the Arab Ba’ath Socialist
Party. Apart from determining the Syrian Penal Code the death sentence as a penalty for the
commission of certain crimes of assault on State security, outside (Articles 263, 265, 266), as
well as inside (Articles 298-305), and other crimes of assault on the individual.
Under the Syrian Constitution, the sentenced to death has the right to seek pardon or to
commute the sentence, and the president is entitled to limit the use of such penalty, according
to the Syrian constitution, and execute clemency order.
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11. Yemen:
The Yemeni legislator has not set a specific definition for the death penalty either in the Penal
Code or in the Code of Criminal Procedure. Notwithstanding, Article 485 of the Code of
Criminal Procedure stipulated the manner of the implementation of the death penalty saying:
"the death penalty shall be applied by cutting the convict's neck by sword, or by fire squad to
death without torture. But in limits of high robbery, the implementation shall be made as may
be stipulated in."
The Yemeni legislator is affected greatly with the Islamic law in determining the death
penalty. The Yemeni Penal Code involves many crimes punishable by death, such as crimes
stipulated in Article 234 thereof, which provides for that: "whoever killed an infallible
Muslim shall be punished by death unless is forgiven by the avenger of blood, wergild or
died before the execution."
Article 141 decides the death penalty in four cases: the arson or explosion, the endangerment
of the means of transport and communications, drowning, and the pollution and toxic
substances resulting in the death of a human being.
On the other hand, there are crimes punishable by the death penalty as a discretionary
disciplinary punishment, and the Yemeni law includes two categories of crimes: crimes of
ordinary people (Articles 234, 249, 280), and crimes of militants (Article 226, 227, 228).
There are also crimes punishable by execution as a limit (Articles 263, 264), where the
legislator has decided stoning to death in the following cases: married adultery, and all kinds
of homosexuality. As well as the crime of apostasy, as Article 259 decides the death penalty
on pronouncing words or committing acts publicly contrary to the rules and pillars of Islam,
as well as the crime of robbery (Article 306 penalties) and the crime of prostitution (Article
124 penalties).
The Yemeni legislator has also decided penalties for the commission of certain crimes set
forth in the Military Penal Code, the law on drugs, and the law of kidnapping.
The Yemeni legislator has surrounded the capital punishment by several safeguards, yet
insufficient, as they are not deterrent to the implementation of many death sentences against
innocents or children because these trials lack the simplest procedures of fair trials.
Death penalty in the Arab World
Study about death penalty sentencing in the Kingdom of
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Bahrain
Bahrain Centre for Human Rights
2007
Prepared by
Mohamed Mageed Algashy
Introduction
Death penalty is one of the oldest penalties known by the penal legal rules and the harshest of
all punishments a long time ago. The criminal legislator has resorted to the system of physical
penalties, on the top of which the death penalty, as a kind of eradicating the criminal from his
group in an absolute and final manner.
It was prevailing in most legislation not to identify the acts regarded crimes nor determine
penalties in advance of all as sanction of the crime, so the authority of the governor in
imposing punishment and inflicting sanctions against the accused, in his opinion, is absolute
over a long history. The governor authorized his judicial competences to judges whom he
determined for considerations, often relating to alliance, the matter that contradicts the
modern philosophy of the criminal policy based on principle of the legality of crimes and
punishments.
Therefore, philosophers, thinkers and reformers have released calls for the penal reformation,
as well some steered calls and invitations claiming for the abolition of the harshest and
cruelest penalty, that is the death penalty.
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Then, we recognize the difference in the penal legislator's attitude regarding the death penalty
from one country to another; between advocators, opponents and those calling for its freezing
Each group have his own pretexts and justifications, therefore we are going to tackle this
subject as follow:
1. Brief historical glimpse on the death penalty:
- In 427 B.C, an association in Athens abolished the death penalty issued against the right of
all puberty adults in “Mitlin”, the rebellion city.
- In the first century A.D, in "Sri lank", the Buddhist king “Amanda Ghamani” abolished the
death sentence.
- In the ninth century A.D, the Japanese emperor “Sagha” abolished the death penalty from
laws of the countries.
- In 1764, Italian social reformer “Cesar Bicaria” abolished the death penalty through
subjective scientific criticism.
- Invitations sequenced after that between advocator and opponents of such penalty; those
who enacted them in the text of national legislations of each State and who excluded them
from the legislations' text till the subject has reached to the international stage, as we find
that:
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 The international Declaration for Human Rights referred to the right to life.
 The International Convention for Civil and Political Rights confined the penalty in
chapters VI as to the most dangerous crimes, while the Optional Protocol II, annexed in
the Convention, stipulated in Article I the following:
A- No one, subject to the legal power of a party State in this Protocol, shall be executed.
B- Each party State shall adopt the necessary procedures for the abolishment of the death
penalty within the scope of their judicial power.
Anti-torment Agreement prohibited also all forms of harsh, inhuman or humiliated
treatment or punishment.
Article 37 of Convention on the rights of the child prohibited the application of the death
penalty.
Article 77 of Rome system (International Penal Court) was free from the application of the
death penalty.
The last invitation may be the initiative of the Italian Prime Minister, (Romany Berudi), and
appeals of the new Secretary General of the United Nations of some countries where some
death penalties were executed lately.
2- Why speaking about the death penalty?
- Because it is harsh and inhuman penalty (eradicated), for it is unreasonable to call for the
protection of human rights and his fundamental freedoms, while the most important right,
the right to life, is infringed.
- Right to life is an endowment from the Creator to the creature, how then I take away a right
I did not give or grant.
- As it did not achieve deterrent whether (public and special) and there are many evidences in
this respect.
- Because it is impossible to correct mistakes, if found after the execution. These are the
most important pretexts of the group advocating for remaining the death penalty, the other
group refutes them under other pretexts such as deterrent and justice requital. Nevertheless
we are not assigned to support either this group or that, at least from the judiciary view, as
the judge is obliged to apply the legal text laid down by the legislator. Anyhow, the death
penalty should be handled form subjective quiet point of view.
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3- The death penalty “statistics and figures”
According to the figures and statistics of the International Amnesty Organization, there are
twenty thousands condemned in the world attending their execution, and 95% of the
executions implemented during the last five years in four countries, among of them were the
United States and China. Since 1985, 40 countries have absolutely abolished the death
penalty which reached recently around 120 countries. Such penalty has been completely
abolished in 73 countries, abolished in 13 countries as to the ordinary crimes and practically
abolished in 22 countries, while 83 countries, nearly the whole Arab Countries except
Bahrain and Morocco that are going to abolish it, have maintained the penalty. Since 1999,
we have noticed progress in the number of countries that have abolished the death penalty,
about three countries annually, and the world celebrates every tenth of October as the first
day for opposing the death penalty.
4- Attitude of the Arab legislations of the death penalty:
- Most Arab legislations do not legalize the death sentence against juveniles.
- As well as against the pregnant except after giving birth, for a long or a short while.
- All Arab legislations oblige the presence of the accused lawyer in cases punishable by
execution.
- Arab legislations do not specify maximum limit of the age of the sentenced to death.
- Death sentences are issued in the Arab countries by the systematic (ordinary) and the
military jurisdictions.
- Crimes punishable by execution in the Arab countries distributed between ordinary penal
crimes and crimes touching the state security such as the great felony and espionage.
In this research, we are going to tackle the death penalty in the Kingdom of Bahrain, as to the
extent of applying it and the safeguards surrounded hereto, and display the Bahraini
legislations providing for the execution as a penalty for the convicted. The research plan will
be divided as follow:
(Research Plane)
Part I
Crimes punishable by death in Bahraini legislations.
Part II
Safeguards surrounding the death penalty in Bahraini legislations.
Part III
Displaying death sentences issued by the ordinary and military courts in the Kingdom of
Bahrain.
Conclusion
First: study results
First: scope of the application of the death penalty in Bahrain.
Second: adequacy of the safeguards surrounding the death penalty in Bahrain.
Second: study suggestions
First: our view on the implementation or abolition of the death penalty.
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Second: suggestions for safeguards ensuring not misuse of the death penalty.
Part I
Crimes punishable by execution in Bahraini legislations
Attitude of the Bahraini legislator to the death penalty: text of the death penalty is stated in
the legislation as follow:
First: Bahraini Penal Code issued in 1978.
A- Crimes touching the security of external affairs of the state:
- Article 112: committing crimes touching the independence and integrity of the territory of
the State.
- Article 113: raising weapon against the Kingdom of Bahrain.
- Article 114: intervening for the benefit of an enemy, and scheming to unsettle loyalty of
the armed troops.
- Article 115: instigating soldiers, at the time of war, to join in an army of a foreign state.
- Article 116: facilitating the enemy entrance to the territory of the state and offering services
to him.
- Articles 121 and 122: intercommunicating and assisting hostile enemy State in its
belligerent operations.
- Article 126: disclosing defense secrets to enemy state.
- Article 129: damaging military equipments, supplies and means of transportations in the
course of war.
- Article 142: providing assistance to the enemy to harm the military operations and armed
troops.
B- Crimes touching the security of internal affairs of the state:
- Article 147: assault on the life of the king and the crown prince.
- Article 148 and 149: attempt to topple the throne and intercommunicate with an enemy
state.
- Article 151: violation of orders during war and hindering the government orders.
- Article 152 and 153: formation of a gang that attacked citizens and resisted men of public
authority.
C- Crimes touching the jurisdiction application:
Article 234: slander of a person falsely in order to abuse the judiciary and was punished by
execution, the fabricator is sentenced to death as well.
D- Crimes of public danger- arson and explosives:
Article 277: setting fire, that is likely to expose the people's life to danger and resulting in the
death of a person.
E- Crimes fall on persons.
- Article 333: deliberate murder with predetermination and lying in wait.
- Article 344: raping a female under sixteen.
- Article 359: arresting or detaining a man in any way that resulted in the death of the victim.
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F- Crimes fall on money:
- Article 376: robbery through force, if resulted in the death of a person.
Second: crimes punishable by execution in law of narcotics issued in 1973:
- Article 23: stated that punishable by execution whoever export or import, or plant or
produce drug substances and compositions before getting license, in order to manufacture
narcotics.
Third: terrorism law issued in 2006:
- Article 3: punishable by execution whoever involved in crimes which determined penalty is
life imprisonment in other laws relating to the terrorism law.
Part II
Safeguards surrounding the death penalty in Bahraini Legislations
First: safeguards stipulated in code of criminal procedure issued in 2002:
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-
-
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Article 220: stipulated that investigation shall continued by the court board on issues
whose penalty is execution in spite of the confession of the accused with the charges
attributed to him.
Article 260: the court may not issue death sentence except where the consensus of
their members, providing that should be proven in the sentence.
Article 328: the death sentence shall be approved by the king of the country,
whenever it is decisive and not executed only after its approval.
Article 330: stipulating that relatives of the sentenced have the right to meet him in
the day assigned for the execution, and away from the place of the death. If the
religion of the sentenced obliges him to confess or other religious obligations before
death, necessary facilities shall be provided to enable the executed to do that.
Article 331: the death penalty shall be executed inside prison or in any other protected
place, with the attendance of a judge of execution, a member of the Public
Prosecution, prison official, a doctor and prison preacher. The defendant may attend if
he asked for having permission.
Article 333: the death penalty may not be executed on days of the official festivals of
the sentenced.
Article 334: the death penalty shall be reprieved for the pregnant after the first three
months of her giving birth.
Second: safeguards provided for in code of Court of Cassation:
- Article 40: the sentence issued by execution is challenged by the force of law before
the Court of Cassation; subsequently the execution is reprieved till the issuance of the
sentence to be decisive.
Part III
Sentences issued by execution through the Ordinary and Military Courts in the
Kingdom of Bahrain
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First: sentences issued by the Ordinary Courts:
From 1977-2007, the ordinary and exceptional Bahraini courts (State Security) punished
eight convicted by death sentence, some of them had not been executed yet, as follow:
1- Sentence given in 1995 by State Security Courts, when the accused Essa Ahmad Camber,
(28 years) was convicted with assaulting a security officer leading to his death
(according to the public allegation). Sentence of shooting to death had been executed on
28/3/1996 after ratifying the prince of the countries the sentence. Civil Society
Organizations in Bahrain and the International Organizations concerned with human
rights have condemned the execution of a political opponent, regarding it as political
elimination from the authority against its opponents. The implementation of the sentence
and their reasons raised public dissatisfaction among all classes of the society, refusing
the method of the bloody elimination under the name of justice.
- violations surrounding the conditions of trial and the execution of the sentence:
 Giving the sentence by the exceptional courts (State Security), where challenge may not
be allowed in sentences issued thereof; representing an obvious infringement of the
principles of justice trial.
 Relying the Public Prosecution, at the time of directing the charge, on the confessions
extracted through torment (supposing not to rely on such confessions).
 The sentenced is not allowed to see his family or his relatives before the execution, but
the last visit was more than a month before the execution.
 The penalty is implemented secretly without acquainting his family or the defendants
with the date of the execution.
 Family of the executed is not allowed to bury him or even to attend the burial
ceremonies, except for one person, that is his old father who is allowed to take a look at
the corpse of his son at the last moments of the burial (during descending the corpse in
the tomb).
2- Death sentence issued in 1996 by State Security Courts against three citizens; Ahmad
Abd Alsabour, Josef Abd Albakee and Ahmad Khalil Alketab. All of them had been
convicted of the deliberate arson charge leading to the death of many individuals of
Bengali nationality. The penalty was reprieved by the issuance of the general amnesty
for the condemned under the pressure of the public to abolish the death penalty and for
the appeals of the international organizations inciting the Bahrain Government to stop
the series of the executions in the cases of opinion and expression.
3- death sentence issued in 2006, where the sentence was given by the Ordinary Courts
against three aliens; Mohammad Helal Dean and Jasem Hussein, Bengalis, and Haneef
Etta Mohamed, Pakistani. They were convicted of the deliberate murder charge with
predetermination and laying in wait. The convicted were allowed to communicate their
families, fulfill their desires and consider their rights before and during the execution.
The sentence was implemented on 11/12/2006 after ratifying the sentence by the king
of the countries, and the sentence was executed by shooting fire.
4- Death sentence issued on 7/4/2007 against an Asian accused of murdering a
Bahraini woman with predetermination and laying in wait. The sentence was issued by
the Penal Court, and appealed before the High Court which still deliberates the case
and do not issue its sentence till writing these lines.
Second: sentences issued by the Military Courts:
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No sentences punishable by execution have been issued by the Military Courts in
Bahrain since its establishment.
Conclusion
First: scope of the death penalty execution in Bahrain
1- On reading the Bahraini legislations we find that there are more than 25 legal texts in the
national legislations imposing the death penalty.
2- Bahraini legislator still issues legislations imposing the execution as a penalty, as terrorism
law was issued lately in 2006, as many crimes whose punishments are life imprisonment,
are punishable by execution.
3- Death penalty is executed in Bahrain on some dangerous crimes such as deliberate murder
and cases touching the security of the internal and external affairs of the country.
4- kingdom of Bahrain is classified, according to the local and international statistics, as the
least country resort to the execution, as the total sentences executed did not exceed four
sentences (within 30 years).
5- Bahrain is often criticized for the injustice execution of the death penalty, as many claim
that there are different considerations playing an important role on determining whether the
murder deserves death or not; like wealth, lineage, race, policy and religion. National and
international organizations have condemned the discrimination in the application of the
death sentences, where an association, which protect the coming migration to Bahrain,
pointed out that sentences issued against aliens are severer than that issued against the
citizens for the same crimes. No citizen is sentenced to death except in cases pertaining to
the code of State Security, i.e. for political considerations.
Therefore that justifies the presence of a trend in the society affirming that the application of
this penalty is not fair at all, as it implies injustice and other different considerations. Thus
the death penalty may be regarded as a tool to achieve injuries rather than a retribution for
right and justice.
Second: adequacy of safeguards surrounding the death penalty in Bahrain.
- Bahraini code of criminal procedure provided for many safeguards surrounding the death
penalty in Bahrain; as it stipulates that the penalty shall not be imposed except on the most
dangerous deliberated crimes, or applied on people out of their mind, pregnant and new
birth mothers.
- Death penalty shall not be executed unless under decisive sentence issued by the competent
court, and stated also the right to appeal at higher court obligatory.
- The law excludes also the juveniles from the application of the death sentence, however
that does not preclude the execution because the Bahraini juveniles Law explains that the
juvenile is the person who does not complete his 15 years, and the penalty is applied on
those who have exceeded this age. Representing a violation of human rights and opposition
of the international covenants and conventions ratified by Bahraini government as the
juvenile is defined as the person who is not more than 18 years old. Bahraini legislation has
neglected the text concerning the right of the executed to ask for pardon request, commute
and not implement the sentence before determining the request of the executed.
Suggestions of the Study
First: our vision on maintaining or abolishing the penalty
The right to life and dignity is the most important of human rights that should be reflected
through human legislations in the course of punishing criminals.
14
whereas the maintain of the death penalty would effect more negative consequences, from
our point of view, than the abolition for several reasons as follows:
1- Impunity of a criminal from the penalty is better than executing an innocent. Studies
indicate that many innocents are executed or given death sentences, and the International
Amnesty Organization says: so long as the death is already existent, the risk of executing
innocents can not be eliminated. Some studies indicate that 3% of the executed were
innocents, but they were executed for some mistake. Moreover, the death penalty is
irreversible in the event of error or abuse; apart from its depriving the person forever from
providing evidences that may commute the penalty or re-adopt the crime later to be an
offence not punishable by execution. Adding that, the conditions may change and that
crimes punishable by execution may be lawful or permissible acts.
2- Studies indicate that the death penalty was not more deterrent than life imprisonment, and
statistics confirmed that no increase recorded in the rate of crimes in countries that have
abolished it. Furthermore, the proportion of crimes punishable by execution is not less in
the states applying the penalty compared to the states that do not apply it.
3- Death penalty, throughout its long history, did not reach the thinkers, freedom lovers,
defenders of the rights, opponents of the corruption and anti-autocracy. Evidences are many
in this regard for who ponder the pages of history as the seriousness of death penalty is
revealed to him and how it robbed the life of many geniuses, scientists, thinkers and
philosophers without any right, and deprived the humanity from their generous creations
and abundant thoughts.
4- The concepts of justice are not static or abstract, but may change from one country to
another and from one era to another. That what is considered a crime in a country and era
may not be regarded as such in the country and other era. It is better for the justice to
substitute the death penalty with other penalty according to the experts of law and
sociology.
5- Most people, the victims of the death penalty, are not wealthy or influential of power and
tribe, but poor and destitute who did not find the help and were unable to pay magistrate
fees or effect tribunal reconciliation.
6- Terrorism crimes and crimes committed under the influence of the belief and ideology are
not usually deterrent by the death penalty or threat of execution because the perpetrator
regards the death as a certificate, merit of honor and a gateway to access the immortality
and bliss paradise where he so long had dreamed of.
Finally, whatever was said in favor or against the death penalty, its application is receded; as
many countries in the world has abolished this penalty and the countries which still maintain
it, including the Arab countries, are rarely applying it, but they promulgate it in their
legislations for threat or for its implementation in exceptional cases and when desperately
needed. Moreover, the Arabic and international trend believe recently that there was no
criminal responsible absolutely for his crime, and the means of modern treatment are largely
liable to rehabilitate the criminal socially and set him apart from the path of crime.
Second: suggestions of safeguards ensuring disabuse of the death penalty
1- Excluding issues of opinion and expression freedom opinion from the texts of crimes
punishable by execution.
2 – Issuance of sentences shall be restricted on the Ordinary Courts, excluding the
exceptional courts (State Security and Emergency)
3 – Bringing the final death penalty sentencing before the parliamentary councils or the
elected bodies for ratifying or approving hereunto.
15
16
Death Penalty in Egyptian Legislation
Origination and Analysis
Dr. Emad El Feky
Lawyer
17
Introduction
Definition:
Death penalty is considered one of the most highlighted punishments that aroused sharp
controversy a long time ago, specifically since the 18th century. Controversy is still aroused
on the punitive value of the death penalty up till now, and its legitimacy as an image for the
social reaction toward the criminal.
No wonder that the death penalty is one of the oldest and most serious penalties known by
mankind; leading to the loss of the convicted life. Thus, it infringes on a fundamental and
integral right of human rights "the right to life", which is the most sacred and important of
human rights.
The core of this penalty, therefore, is the eradication of the sentenced life from the
community. The death penalty was a common practice in old legislations especially in times
when the religious idea of revenge prevailed, as it was applied brutally and cruelly
accompanied by horrible torture means from which the body is shivered.
Egypt had known this penalty since the cradle of history and applied it in all ages beginning
from the Pharaonic age till the modern age. However, the Sicilian Deodar told us that the
death penalty had been replaced in Pharaonic era with exile punishment in the era of King
"Aktiza Nea" one of the kings of the twenty-fifth dynasty; when he gathered all the sentenced
to death and mutilated their noses, then exiled them to a remote area in the Eastern Desert,
where a city was built to inhabit there in1.
Then, another king of the same dynasty, "Saco Boss", has issued an explicit order to
commute the sentence from death to hard labor2. Thus, the former established an entire city,
while the latter established banks and multi-tunnels. However, death penalty was reapplied
quickly and still in force until the end of the Pharaonic era of the same dynasty3.
The international position of the death penalty:
Death penalty received with great interest by the international community. Observer of the
international position of the death penalty recognized that it tends to the abolition of the death
penalty. This position is reflected in the form of treaties or international or regional
agreements aiming at the abolition of the death penalty in the States Parties.
Apparently, the States that have abolished the death penalty are increasing progressively.
According to the International Amnesty Organization, 89 countries have abolished the death
penalty for all crimes, and 10 countries have abolished the death penalty for all crimes except
for military crimes. So, it could be considered that 30 countries have abolished the death
penalty practically, however this penalty is stipulated in the punitive legislations and judicial
awards are issued hereof. Yet this penalty is not implemented in fact, bringing the total of
countries that have abolished the death penalty legally and practically to 129 State.
1
Dr. Mahmoud Sakka "Researches in the history of old legislations" house of Arab Renaissance, 1995 edition, page 95, Dr.
Fathi Al Marsafawy "History of Egyptian law - analytical study of the pharaonic and Patlamy laws" House of Arab Thoughts
1978- pages 188-189.
2
Dr. Mahmoud Al Sakka, the previous reference, page 96
3
Dr. Ra'ouf Ebeid, "The Criminal Legislation in Pharaonic Age" the national criminal magazine, first edition, issue 3, November
1958, page 63.
18
More than 40 countries have abolished the death penalty for all crimes since 1990, including
countries in Africa, such as Senegal and Cote d'Ivoire, in North and South America such as
Canada and Paraguay, in Asia and the Pacific region, such as Bhutan, Samoa, Turkistan and
in Europe and the South Caucasus, such as Armenia, Bosnia and Herzegovina, Cyprus,
Greece, Serbia and Montenegro and Turkey4.
Article 6 of the International Convention on Civil and Political Rights of 1966 stated that:
1- Every human being has the inherent right to life, the right which is protected by law, and
no individual may be deprived of his life arbitrarily.
2- In countries where the death penalty has not been abolished yet, this provision may be
implemented for only the most dangerous crimes in accordance with the provisions of the
applicable law at the time of committing a crime and not contrary to the provisions of the
Covenant and Agreement on the Protection of genocide and punishment. This punishment
may not be implemented only after a final award issued by a competent court.
3- If deprivation of life constitutes genocide crime, this article does not authorize any State
Party to the present Covenant to revoke in any way of any obligation imposed by the texts of
the agreement on the protection of genocide and punishment thereon.
4- Each person given death sentence has the right to seek a pardon or commutation of the
sentence, and both amnesty and accusation may be granted in all circumstances.
5- Death sentences should not be issued for offenders under the age of 18 or implemented on
a pregnant woman.
6- This article does not provide for any that may the States Parties, in the present covenant,
rely on for postponing the abolition or preclude the execution of the death penalty.
In November 1968 the United Nations General Assembly adopted a resolution defining some
legal guarantees to be met on the execution of the death penalty. Such resolution has called
the Governments of the States that have not abolished the death penalty yet to ensure the
following safeguards:
1- No sentenced to death shall be deprived of the right to challenge the sentence to the
highest judicial authority, request a pardon or commute the penalty, as the case.
2. Death sentence shall not be implemented only after using up means of challenge or
procedures of pardon, or commutating the penalty, as the case.
3- Showing a special attention to the indigent persons by providing them judicial assistance in
all stages of the proceedings.
The General Assembly of the United Nations issued a resolution on December 20, 1971
confirming that: "The target to be pursued for the absolute insurance of the right to life,
stipulated in Article (3) of the Universal Declaration of Human Rights, is the gradual
narrowing of the number of crimes punishable by death penalty, considering that the ultimate
aim is to abolish this penalty from all countries."
In 1989 the General Assembly of the United Nations passed a resolution No. 44/128 on
December 15, 1989 of the Optional Protocol II attached to the International Covenant on
Civil and Political Rights, aiming at the abolition of the death penalty, which entered into
force on July 11, 1991, ratified by 54 States and signed by eight other States expressing their
interest to become parties in this Protocol in the future.
Article I of the protocol stated that:
1- No one subjects to the jurisdiction of a State Party to this Protocol should be executed.
4
The campaign of International Amnesty Organization against Death Penalty - Document number 2005/06/50.
19
2- Each State Party shall take all necessary measures to abolish the death penalty within its
jurisdiction.
Article II, paragraph 1 of the Protocol stipulated that: "no reservation should be taken on this
protocol only for a reservation announced on ratification or accession. In addition, it stated
the application of the death penalty in time of war according to condemnation in the most
serious crimes of a military nature committed in wartime. "
At the regional level:
The European Convention on Human Rights:
Article 2 of the European Convention on the Protection of Human Rights and Fundamental
Freedoms- Rome on November 4, 1950 stated that:
"The law protects the right of every human being to life. No one may be deliberately
executed only for the implementation of the death sentence issued by a court in case of
committing an offense punishable by such punishment."
American Convention on Human Rights:
The American Convention on Human Rights- San Jose of 22/11/1969 included the right to
life in Article I V, as follows:
1- Every human being has the right to enjoy respectful life, the right that is protected by Law
generally, from the moment of bearing, and no one may be deprived of his life arbitrarily.
2- Countries, where capital punishment has not been abolished yet, may not execute this
penalty only for the most serious crimes, under final award issued by a competent court in
accordance with a law stipulating such penalty and to be in force before committing the
crime. The death penalty may not be applied for crimes not stated for this penalty now.
3- The death penalty may not be reapplied in countries that had abolished it.
4- The sentencing to death may not be applied to the political or ordinary crimes attached
thereto.
5- The death sentence may not be applied to persons less than 18 and over 70 years at the
time of committing the crime, as well to the pregnant women.
6- Every person sentenced to death has the right to request amnesty or commute the penalty,
and all these demands may be met in all cases. The death sentence may not be applied as
long as this demand is under discussion by the competent authority.
Arab Charter on Human Rights5:
Article V of the Arab Charter on Human Rights, accredited and published on public under
resolution of the Arab League No. 5427 on 15 September 1997, stated the right to life, saying
"everyone has the right to life, liberty and security of person, and law protects these rights",
as well Article X of the Charter stipulated: "The death penalty shall be imposed in the most
serious crimes, as each sentenced to death is entitled to seek pardon or commute the penalty."
Article 11 stated: "the death penalty may not be imposed, in all cased, on political crimes."
Article 12 stated: "the death sentence may not be executed against anyone under eighteen
(5) Despite the existence of that Charter, it lacks the necessary executive tools as in the European Convention or American and
African countries. It also did not have enough attention on the part of Arab governments. Additionally, it is clear that the Arab
League had set that Charter to achieve a political desire and neglected humanitarian and social dimensions of this Charter,
which its value lies in in the implementation of its contents of the texts acknowledging and protecting the rights of Arab
human.
20
years, a pregnant until giving birth or a nursing mother only two years after the date of birth."
Recently, series of regional protocols obliges States to abolish the death penalty, including:
1. Protocol No. (6) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms on the abolition of the death penalty on April 28, 1983 which started
in March 1985.
Article I thereof stipulated: "the death penalty should be abolished, and may not be sentenced
or executed against anyone."
Article II of this Protocol allowed the State to decide or threat the death penalty in time of
war, stipulating that: "the State may include provisions of death penalty in respect of acts
committed in time of war or imminent threat of war. This penalty should be applied only in
cases prescribed by law and in accordance with provisions. The State must notify the
Secretary General of Europe Council of the concerning provisions in this regard."
However, Protocol No. (13) included the abolition of the death penalty completely, in all
circumstances and at all times, whether in time of peace or war.
2. Charter of Fundamental Rights of the European Union:
The second article of this Charter, enforced on December 17, 2000, stated that:
1. every person has the right to life.
2. No person should be sentenced to death or executed.
3. The Protocol on the American Convention on Human Rights calls for the abolition of the
death penalty in 1990, which was ratified by eight States and signed by one State.
The first article states that "the States Parties of this Protocol should not apply death penalty
on their territories against any person subjects to its jurisdiction."
Importance of the subject:
the study of death penalty in the Egyptian legislation has paramount importance on both
theoretical and practical aspects. Theoretically, the death penalty raises minutes and various
subjects, some of them are of legal nature such as those relating to the identification of crimes
punishable by death and the alternatives of capital punishment, how to implement them and
guarantees of judgment, others are of philosophical punitive nature, such as those relating to
the punitive terms of the death penalty, and the adequacy of remitting or abolishing the death
penalty. Practically, it is noticed – according to the Amnesty Organization - that Egypt
witnesses a marked increase in the application of the death penalty over the past decade. The
Organization has recorded the issuance of 179 death sentences, during the period 1981-1990,
apart from the execution of 35 persons, while in the period 1991-2000, the Organization has
recorded the issuance of about 530 death sentences, apart from the execution of 213 people.
In 1999, not less than 108 people were sentenced to death, among of them 12 women. Over
the past five years (1996-2001) at least 382 people were sentenced to death, i.e. 76 sentences
per year. During the same period at least 114 people were executed, at least.
Research Plan:
Death penalty aroused widespread controversy, and public opinion divided to two trends: the
first supports remaining the penalty, and the second supports its abolishment.
The Egyptian legislator decides the death penalty for committing a series of dangerous and
series crimes. The legislator has stated the death penalty in the Public Penal Code, as well as
some special criminal laws such as the Anti-Narcotic Law, the Martial Law and the Arms and
Ammunition Law. The procedural legislator has surrounded the death penalty by some
special procedural safeguards; some of them relating to the issuance of the sentence, and
others to the execution.
21
With regard to the abovementioned, we are going to divide this study to three brief
subsections; the first addresses the support and opposition of the death penalty and the
attitude of the Egyptian jurisprudence of this penalty entitled "Death Penalty between remain
and Abolition," the second refers to crimes punishable by execution in the Egyptian
legislation, and the third displays the procedural safeguards for the death penalty. Then we
conclude this study by pointing out the findings and recommendations through the evaluation
of the Egyptian legislator position as to the death penalty.
Subsection I
Death Penalty between application and abolition
Introduction:
The death penalty was never a matter of controversy in the old legislations; it was recognized
by scholars without an attempt to justify it. In addition, governors and legislators were
adopting it without even a resistance by thinkers and philosophers.
In recent years, specifically since the late 18th century, controversy has raised on the utility of
the death penalty, and its legitimacy as a social reaction to the crime. The 18th century was
marked by philosophical ideas, which attacked the prevailing penal systems, according to the
studies and researches on the social and anthropological reasons of the crime.
The penal system prevailing in the 16th, 17th and a large part of the 18th century, which was
characterized by the absence of the principle of legitimacy, harshness of the penalty and its
application and execution aggressively, raise the pens of philosophers and thinkers so they
launch a fierce campaign denouncing the unjustified harsh punishments, and the torture
associated with the execution such as "Montesquieu, Jean-Jacques Russo, Voltaire and
Peccary."
In light of the previous factors, philosophers and thinkers wondered whether there is a need to
apply the death penalty or not. Thus, two trends appeared on the horizon; one is in favor of
the application of the death penalty, and the other calls for the abolition and each of them has
his own pretexts and reasons.
Accordingly, we are going to study in brief the trend in favor of death penalty in the first
requirement, and the trend in opposition of the penalty in the second requirement.
Therefore, it is important to know the position of the Egyptian doctrine of the death penalty,
not only to learn the opinions of the Egyptians scholars in this regard, but also to the great
22
importance and effect of these opinions in the formation of the legal culture for many
generations of the faculty of law students who will work, in future, in the different legal
domains. So, we demand to allocate a third requirement for the position of the Egyptian
jurisprudence of the death penalty.
23
Part I
Trend in favor of the Death Penalty
A group of commentators supports the application of the death penalty. In ancient Greece,
Aristotle considered criminals as enemies that should be beaten as severe as the fierce
animals, so he endorsed the cruel penalties, such as death, to restore balance to the
community that has been affected by the crime. In medieval ages "Thomas Aqueen" believed
in the idea of discarding the sick organ from the community to maintain the proper organ,
therefore he regarded the death penalty as an indispensable tool for protecting public
interests.6
In the modern era, a group of commentators has endorsed the application of he death penalty,
among of the most eminent philosophers is "Jean-Jacques Rousseau," who defended the
legality of the death penalty saying: "in order not to be a victim of the a murderer, human
being should accept in advance to be executed if he is himself a killer7."
"Beccaria" had favored the death penalty in his famous book "Crimes and Penalties", in
political and sedition circumstances upheaval that require violence and distress to establish
order and security, but in normal circumstances another penalty must be applied other than
the death penalty.
Lombrose had endorsed the death penalty for the inborn criminal, as well "Jarrau de Falu"
who did consider execution a cruel penalty and called for its retention as a mean of
eradicating the dangerous criminals to protect society.
One of the most important arguments which supporters rely on:
Death penalty is the most appropriate penalty for dangerous criminals whom eradication is
the only useful solution for them that works as public deterrence or intimidation including
threats to kill the offender, achieving the moral function of the penalty as a malice equal to
the evil of the crime since the following severe penalty, the life imprisonment, is not
alternatively suitable because execution is low in costs, satisfies the public sentiments and a
sense of justice and reduces the tendency to revenge and retaliate8.
Part II
Trend in opposition to Death Penalty
Advocators for the abolition of the death penalty always gain new adherents and new
territories, noticing that the countries which have abolished the death penalty sentencing
increase progressively. Among of the most prominent opponents are Karrar, Bsena, Ferry,
Long and De Mársico. One of the most important arguments which the opponents rely on:
'The death penalty is not of the community right, that's because the community did not grant
life to humans strip him this right. The death penalty is marked by barbaric nature and
inconsistent with humanity, and should be abolished with the current progress in sympathy of
the feeling of people as being a kind of revenge that should be disregarded by the group. In
many cases, the death penalty is not commensurate with the gravity of these crimes; even the
crime itself may not deserve the offender's loss of life. The seriousness of death penalty is
that if an error occurred, it would never be amended unlike other penalties. Finally, the
impact of the death penalty is doubtable to achieve public deterrence, because countries that
6
Refer to Dr/ Hassan Sadiq Almrsfawi "Crime and punishment in Egypt" House of knowledge, edition 1973 p. 29..
7
refer to Dr/ Rauf Ebaid: "General Principles section of the punitive legislation" Dar Arab Thought, fourth edition 1979 - p.806
8
refer to Dr./ Awad Ahmed Bilal: the principles of the Egyptian penal code section-year-Dar Arab Renaissance 2005/2006-
Edition 782 - 783, Dr./ Ahmed Fathi Sorour – the mediator in the Penal Code – Part 1 – General Section 1981 edition of p. 721,
Dr./ Saed Mostafa, The General in the Penal Code – fourth edition 1962- p. 579.
24
have abolished the death penalty did not witness an increase in the crimes punishable by
death9.
Part III
Position of the Egyptian jurisprudence on the death penalty
Observer of the views of the Egyptian legislation on the death penalty will find out that the
Egyptian jurists agree unanimously on retaining the death penalty sentencing. However such
advocate is not absolute but restricted to limit the scope of its application for the most serious
and dangerous crimes and surrounded by a fence of procedural measurements to ensure the
authenticity and uprightness of the death penalty sentencing. The scope will not allow
viewing all the scholars' opinions in this regard, but we are going to deal with examples as
follow:
The late Prof. Dr. / Mahmoud Najib Hosni said that10, "We concluded after examining the
arguments of the opponents of the death penalty sentencing that there is no valid argument
prevents the community from applying this penalty for effective and decisive combating of
crime, bur we see that the abolition of death penalty represents a defect in the criminal policy
which means getting optionally rid of an effective weapon to combat the most serious crimes
and offenders."
Then he proceeds to say: "nevertheless, our advocate for the retention of the death penalty
does not prevent us from demanding to have a moderate scale. The penalty nature, as an
eradicated and irrevocable punishment, enforced us to apply it for the most serious crimes, as
to crimes of assault on the security of life while crimes against state security require less
serious penalties. In addition, the judge may not pronounce the death penalty sentencing for
the committing offenses punishable by execution, rather he should verify the extreme
seriousness of the criminal on the community and determines the lost of hope to reform him
and his probable return to the such crime if he has not been eradicated from the society.
Moreover, he should check the credibility of evidence and the possibility of acquitting him is
farfetched. Otherwise, the judge must rely on circumstances for commutation to avoid
pronouncing death, and the President should use his pardon authority to avoid death
execution in other cases as may be required- certainly –for the interest of community.
According to Dr. Mahmoud Kabish "the necessity to retain the death penalty with restriction
to the most serious crimes and sentenced only by normal court enjoying all available
safeguards."
Prof. Dr. Mohammed Eid Al Gharib considers that: "the death penalty is a social need that
can not be replaced by any penalty depriving liberty. The Islamic Sharia has approved
retaliation for the intentional murder."
Profs, Ali Abdel-Kader Al Kahwagy and Abdullah Al-Shazli said that: "It is not acceptable to
claim for the abolition of death in Egypt as it is stated in the Islamic Sharia, which is the main
source of legislation in Egypt, so the abolition violates the Islamic Sharia. Regarding crimes
which legally determined, the most important is murder that meanwhile violates the country's
constitution.
Subsection II
Crimes Punishable by Death Penalty in the Egyptian Legislation
9.
Dr./ Hassan Sadiq Al Mrsfawi – p. 257 - 258, Dr./ Fawzia Abdul Sattar: notes in the penalty- Dar Arab renaissance - edition
1993 p. 508
10
Dr. / Mahmoud Najib Hosni: "Explanation Penal Code Section - General section Arab renaissance, the sixth edition 1989 – p.
719.
25
Division:
The Egyptian legislator stated death penalty for a number of crimes involving very dangerous
and serious acts. The legislator has used this sentence in four laws in Egypt as follows:
a. Penal Code.
b. Drug Law.
c. Martial Law.
d. Arms and Ammunition Law.
Following, we will refer to crimes punishable by death in the previous laws by dedicating
four requirements for each.
Part I
Crimes Punishable by Death Penalty in the Penal Code
Egyptian legislator decides death penalty sentencing in the Penal Code for a group of crimes,
including crimes touching the State security from outdoor(articles 77 and the following of the
Penal Code), and from indoor (articles 86 and the following of the Penal Code), including
crimes against individuals.
It is worthy mentioned that some jurists add the crime of torturing the offender to confess, if
the torture led to death, to crimes punishable by death set forth in the second paragraph of
Article 126 of the Penal Code. Undoubtedly the text of article 126 / 2 of the Penal Code was
misunderstood, as it stipulates that "If the victim (the accused) died, the offender should be
sentenced to the penalty set for the deliberate murder." Since the perpetrator did not intend to
murder the victim, rather he intended to damage his body safety and the death, in this case,
was out of offender's intention. Hence, the correct interpretation of the text of second
paragraph of Article 126 of the Penal Code intends to refer to the text of Article 234 of the
Penal Code stipulating that "whoever killed a soul without predetermination or lying in wait,
should be punished by life imprisonment or rigorous imprisonment".
First: crimes of assault on the security of the State from outdoor punishable by death:
Egyptian legislator punishes for a number of assault crimes on the security of the State from
outdoor as follows:
1. Crime of touching the independence, unity or territorial integrity of the country (Article
77 penalties).
2. Crime of joining international troops in case of war with Egypt (Article 77 "A" penalties).
3. Crime of spying or communicating with foreign state to hostile against Egypt (Article 77
"b" penalties).
4. Crime of spying or communicating with a hostile country to help them in their military
operations against Egypt (Article 77 "c" penalties).
5. Crime of intervention for the sake of the enemy to destabilize the loyalty of the armed
forces, or to weaken their spirit or resistance (Article 78 "A" penalties).
6. Crime of inciting soldiers to engage in the service of an enemy State (Article 78 "b"
penalties).
7. Crime of facilitating the enemy invasion of the country (Article 78 "c" penalties).
8. Crime of deliberate damaging, deformation or disruption of the means of defense "Article
78" H "penalties).
9. Crime of giving out defense secrets for a foreign country or reaching them for their
disclosure or interests destruction "article 80" penalties.
10. Crime or deliberate breaching of a supply or work contract agreed with the government
for the benefit of armed forces (Article 81 penalties).
26
11. Crime of penal conspiracy or incitement to agree on specific crimes of assault on the
external security of the State (article 82 "b" penalties).
12. Applying death penalty sentencing for the commission of any crime set forth in Part II of
the second publication on Penal Code, against the independence or territorial integrity of
the country or at wartime to help enemy or damage military operations; which would
achieve the aforementioned purpose. As well as felonies and misdemeanors promulgated
in Part I whenever the offender intended to help the enemy or damage the military
operations of the armed forces, and that would achieve the aforementioned purpose.
Second: crimes of assault on the security of the State from indoor punishable by death
1. Crime of forming illegal organizations designed to disrupt the provisions of the
Constitution or laws, to prevent a public institution from exercising their work, to attack
on the personal liberty of a citizen or other public rights and freedoms guaranteed by the
Constitution and the law, or to damage the national unity or social peace, whenever
terrorism is one of the means used to achieve or implement the purposes advocated by
illegal organization (Article 86 bis penalties).
2. Crime of forcing someone to join an illegal organization or prevent him from disjoining,
if it resulted in the death of a human being (Article 86 bis "b" penalties).
3. Crime of spying or carrying out terrorist acts against Egypt (Article 86 bis "c" penalties).
4. Crime of forming an armed gang or assuming the leadership to overthrow the regime by
force (article 87 penalties).
5. Crime of arresting a man without a legal reason in order to influence the public
authorities, if it resulted in the death of a person (article 88 bis penalties).
6. Crime of combating an official responsible for the enforcement of the provisions of Part I
of Chapter two of the Penal Code, if resulted in the death of the victim (Article 88 bis "a"
penalties).
7. Crime of forming a gang that attacked the population or resisted men of public authorities
by using weapons to enforce (Article 89 penalties).
8. Crime of deliberate vandalism of buildings and public property if resulted in the death of
a person inside it (article 90 penalties).
9. Crime of occupying buildings and public property by force by an armed gang (rule 90 bis
penalties).
10. Crime of leading an army battalion or division, section of the navy, warship or military
aircraft, army station, port or a city without mandate by the government or other
legitimate reason (Article 91 bis penalties).
11. Crime of requesting an entitled army or police figure to suspend the Government orders
for a criminal purpose (article 92 penalties).
12. Crime of leading an armed gang for taking over lands and properties (article 93
penalties).
13. Crime of using explosives with intent to commit certain crimes (Article 102 "b"
penalties).
14. Crime of using explosives resulting in the death of a person or more (Article 102 "c"
penalties).
Third: Crimes of assault on individuals punishable by death:
1. Crime of premeditation murder with lying in wait (article 230 penalties).
2. Crime of premeditation murder by using poison (article 33 penalties).
3. Crime of premeditation murder associated with a felony or a misdemeanor (article 234
penalties).
4. Crime of murdering a war wounded (Article 251 penalties).
27
5. Crime of exposing transport means to hazard if resulted in the death of a person (article
167 penalties).
6. Crime of arson if resulted in the death of a person (article 257 penalties).
7. Crime of kidnapping a female associated with raping (Article 290 penalties).
8. Crime of a perjury if resulted in a person execution (article 294 penalties).
9. Crime of thug associated with murder (article 35 bis "a" penalties).
Part II
Crimes Punishable by Death in the Law of Combating Drug Abuse
The Egyptian legislator stipulated death penalty in law No. 182 of 1960 on combating drugs,
regulating its use and trafficking, amended by Law No. 122 of 1989 for the commission of
numerous crimes as follows:
1. Crime of importing and exporting narcotic substances (Article 33 bis "a" Combating
drug).
2. Crime of producing and extracting narcotic substances (Article 33 "b" Combating drug).
3. Crime of cultivating narcotic plants listed in table (No. 5) (Article 33 bis "c" Combating
drug).
4. Crime of forming, managing or participating in a gang for an illegal purpose (Article 33
bis "d" Combating drug).
5. Crime of possessing, dealing or acquisition of narcotic substance for trafficking (Article
34 bis combating drug).
6. Crime of using drug for offensive purposes (Article 34 "b" Combating drug).
7. Crime of managing or preparing a place for drug abuse (Article 34 "c" Combating drug).
8. Crime of inducing to take cocaine, heroin or any of the substances mentioned in the first
section of Table No. "1" (article 34 bis Combating drug).
9. Crime of assaulting on an employee responsible for enforcing Drug Law, if resulted in the
death of the victim (Article 40 Combating drug).
10. Crime of premeditated murder of a staff member responsible for enforcing Drug Law
(article 41 Combating drug).
Part III
Crimes Punishable by Death Penalty in the Martial Law
Mentioning the text of death penalty sentencing in fourteen Articles of the provisions of
Martial Law, Articles (130-166), that means death sentence is approximately applied to one
third of the offenses set forth in martial law.
1. Crimes associated with the enemy (article 130 of military provisions which sentences 12
acts to death).
2. Crime of not reporting a crime stipulated in Part I of the Martial Law (Article 132
military provisions).
3. Crime of enemy access to military location, military center or military institution (Article
133 military provisions).
4. Crime of capturing and mistreatment of wounded (article 134, 135, 136 military
provisions).
5. Crimes of sedition and mutiny (Article 138 military provisions).
6. Crimes of violating duties and guards (Article 139 military provisions).
7. Crimes of stealing, looting and destruction (Article 140-141 military provisions).
8. Crimes of misusing authority (article 48 military provisions).
9. Crime of disobeying orders (article 151 military provisions).
10. Crimes of escaping and absence (article 154 of military provisions).
28
Part IV
Crimes Punishable by Death Penalty in Arms and Ammunitions Act
The legislator added a final paragraph to Article 26 of Arms and Ammunition Act under Act
No. 15 of 1981 on the amendment of law provisions No. 394 of 1954.
Thus article 26 of Arms and Ammunition Act is the only article that sets the death penalty in
this law.
The last paragraph of Article 26 stipulated as follows:
"Without prejudice to provisions Part II bis of the Penal Code, the aggravating or life
imprisonment should be imposed on whoever possessed or brought in person or by a third
party a weapon without license of those stipulated in Article (1) of this Act or ammunitions or
explosives used in the aforementioned weapons, in a public place, public transportation or
worship places. The penalty should be death sentencing if the possession or acquisition of
those weapons, ammunitions or explosives intended to be used in any activity violating
public security or public order, or to touch the governance order, principles of Constitution or
basic systems of social institution, national unity or social peace.
29
Subsection III
Procedural safeguards of Death Penalty
Introduction
Everyone has the right to a fair or justice trial whatever the offense he has committed.
The international community has composed a set of standards or safeguards that should be
available to ensure the right to fair trial. In Egypt, the criminal legislator developed set of
safeguards for the defendant during trial; such as the right to defense, the right to express
views freely, the right to retain a lawyer, equality in rights of indictment and the acquittal
evidence and the verification guarantees related thereof such as unbound the accused to prove
his acquittal, and the positive satisfaction of the conviction, and suspension is interpreted for
the accused benefit.
Apart from the safeguards set for the accused in criminal trials generally, the legislator set
special safeguards for cases sentenced to death by the court; some are regarding the death
sentencing itself, and others regarding the death execution.
Therefore, we have divided this Subsection into three requirements:
Part I: Safeguards of fair trial.
Part II: Safeguards of death sentencing.
Part III: Safeguards of execution.
Part I
Safeguards of Fair Trial
Trial stage may be one of the most critical and serious stages of criminal proceeding stage;
where the case has entered its crucial or final stage and the sentence is about to be passed.
The person trial should be legal and fair regardless the gravity of the offense committed. The
Stated should oblige to trial the accused fairly, on an equal footing, before an independent
and impartial tribunal established by law before his accusation, in accordance with public
procedures dominated by the principle of equal rights of indictment, ensuring all the
necessary safeguards to defend himself effectively.
Sources of the defendant's right for a fair trial
1. International Sources:
The Universal Declaration of Human Rights of 1948 stipulated in Article 10 therein the right
to a fair trial, stating: "Everyone has the right , equally with others, to consider his case fairly
before an independent righteous tribunal and court, and fair publicly to settle his rights, duties
and any other criminal charge against him".
Additionally, article (14) of the International Covenant for Civil and Political Rights included
the right of everyone to a fair trial stating:
1. All persons are equal before the law; everyone has the right, on considering any criminal
charge against his rights or duties in a legal issue, to a fair and national trail by a
competent, independent and impartial court relying on law.
2. Every accused of criminal charges has the right to be presumed innocent unless proven
guilty according to law.
3. Everyone shall have the right, on considering criminal charge against him, to the
following minimum safeguards, on the same level:
a) Informing him immediately in detail and in an understandable language of the reason
and the cause of charge directed at him.
b) Obtaining the adequate time and facilities to prepare his defense and contact with the
selected lawyers.
c) Trying him without unreasonable excessive delay.
30
4.
5.
6.
7.
d) Trying him in his presence, and to defend himself in person or through legal
assistance chosen by him, to notify the responsible person when he do not have a legal
assistance, and to have access to a legal assistance in any case required for the
interests of justice and without payment in return if he does not have enough
resources for this purpose.
e) Interrogating himself or by the defendants' witnesses, and to ensure the attendance
and examining his witnesses under the same conditions of the defendants.
f) Providing an interpreter to give him free assistance if he is not able to understand or
talk the language used in the tribunal.
g) Exempting him from testify against himself or confessing of his guilty.
Measures should be adopted in case of juveniles, taking into account the matter of age
and the desire to rehabilitate them.
Every convicted has the right to reconsider the sentence and the penalty before a higher
court under the law.
Every sentenced against whom issued a penalty of a final award in a criminal offence
shall have the right to compensation according to the law, if the sentence is abrogated or
pardoned for a new incidence or recent discovered incidence and revealed unequivocally
to achieve justice, unless it is proved that non-disclosure of the uncharted incident at the
time is partly or totally due to that person.
No one may be tried or punished again for a crime already received a final award, or
released him in accordance with the criminal law and procedures of the country
concerned."
The International Covenant on Civil and Political Rights is considered the main source of the
accused right to a fair trial in Egypt, according to article 151 of the Egyptian Constitution of
1971 which promulgates that: "President of the Republic should conclude treaties and inform
the Parliament attached by an appropriate statement. It shall entitle the power of law after
being concluded ratified and published in accordance with the current conditions
established."
Egypt has signed that Covenant on 4/8/1967. At the beginning of October 1981, the
Republican Decree No. 537 of 1981 was issued by the approval of the Convention, and was
published in the Official Gazette on April 8, 1982, and put into force on 14/4/1982, and has
the power of the ordinary law according to Article 151 of the Constitution. In France, the
international treaties have higher grade than ordinary laws, the matter that ensures its
highness and priority in application.
Of the regional documents which stipulated the right of the accused to a fair trial:
(A) The European Convention on Human Rights:
Article VI of the Convention stated that:
1. Everyone shall have the right, on settling his civil rights and obligations or in a criminal
charge directed at him, to a public and justice pleading within a reasonable period before an
independent non-partisan court established according to the law. The sentence should be
pronounced publicly.
2. Everyone accused of a crime is presumed innocent until proved guilty pursuant to the law."
The third paragraph decided the same guarantees stipulated in the third paragraph of Article
(14) of the International Covenant on Civil and Political Rights with a slight draft difference.
(B) The American Convention on Human Rights:
Article VIII stipulated that:
31
1. Everyone shall have the right to a trial providing and running the sufficient guarantees
within a reasonable time by a competent, independent and impartial tribunal the have
been previously established under law, so as to prove any charge of a punitive nature
directed at him or to determine his rights or duties of a civil or financial nature, or related
to the act or any other capacity.
2. Everyone accused of a serious offense shall have the right to be presumed innocent until
proved guilty according to the law. During the legal proceedings, each person shall have
equally the right to access to the following minimum guarantees:
a) The confession of the accused should be applicable and valid providing that it has
been carried out without duress of any kind.
b) If the accused is acquitted by final award, he may sot subject to a new trial for the
same reason.
c) Criminal proceedings should be in public except in exceptional cases required for
protecting the justice interest.
(C) The Arab Charter:
Article 7 of the Charter provided that: "The accused is innocent until proved guilty in a legal
trial ensuring him the necessary guarantees for his defense."
It is obvious that "legal trial" term was used instead of fair trial in this context.
In the African Charter, the text did not mention expressly the right of the defendant to a fair,
legal or equitable trial, but stated in the previous Article the right to litigation and its contents
including the innocence evidence, the right to trial in a reasonable period and the right to
defense.
2. The Constitution:
The Egyptian constitution included the right to a fair trial in Article 67 stating: "the accused
is innocent until he is proved guilty in a legal trial ensuring him guarantees to defend himself.
Every defendant of a felony must have a lawyer to defend him".
It is noticed that the Egyptian Constitution has used the legal trial term while the Supreme
Constitutional Court used the fair trial term.
Adjudication of the Supreme Constitutional Court of Egypt has decided that fair trial
expression includes "a set of basic guarantees which ensure, through its integrity, the concept
of justice consistent generally with the applicable contemporary standards in the developed
countries. It, therefore, relates to the court composition, rules of its organization, nature of the
applicable procedural rules and the mean of its application practically. In the criminal scope,
it is considered too relative to personal freedom stated in Article 41 of the constitution as an
initial guarantee to repulse attack against individuals' rights and fundamental freedoms
ensuring his access in frame of equal opportunities. Criteria of fair trial are represented in a
set of initial rules reflecting features of the integrated system sticking to grounds on the
maintenance of human dignity and the protection of their fundamental rights. These rules
should abide by a set of values that ensure the minimum rights to the protection of defendant
that may not be given up or devalued them.
It also ruled that: "Since the right to a fair trial includes the right to a trial not beset by
remarkable slowness as a substantive right with which the indictment may not be unduly
laggard or suspended for a long while, the matter that arouses the defendant's worries,
necessarily impedes his rights and freedoms practicing guaranteed by the Constitution
especially the right of expression, assembly and contribution in aspects of public life, and
places him a disdain position between citizens or losing his work. In addition, the procedures
of the careful trial extends for long times impeding his work, and associated with risks
threatening the chances of contact with witnesses and their probable disappearance. In
32
addition it raises deep psychological troubles as it will be pursued by the crime, which may
be due to the hasty indictment lacking evidence.
Through the foregoing provisions it is obvious that guarantees of a fair trial, according to the
Supreme Constitutional Court, distinguished by four characteristics as follows:
(1) Relevant personal freedom.
(2) Taking into consideration the basis on which maintenance of human dignity and the
protection of fundamental rights based on.
(3) Dependence on values ensuring the defendant's rights the minimum protection.
(4) Decide on the accusation in a reasonable and appropriate time.
33
Part II
Safeguards of the Death Sentence
Criminal Court is entitled to pass death sentencing; crimes punishable by death are enlisted as
felonies, therefore the criminal rivalry subjects to the same rules established for felonies in
general. The initial investigation is a must as well as the lawyer's attendance with each
defendant accused of a felony. Article 67/2 of the Constitution stated that expressly.
If the accused of a felony referred before the Criminal Court was absent, he was sentenced in
absentia. The sentence is void, even death sentencing, with the presence of the defendant or
being arrested for the punishment. The case should be reconsidered before the court without
abiding by the absentia judgment as it may issue different sentence.
Proving a crime punishable by death is subject to general provisions of evidencing. The court
enjoys full freedom of faith formation as stipulated in Article 302 of the Criminal Procedures
Code which state that "the judge judges the case according to his own belief in full freedom."
The Penal Code of 1883 requires certain evidence to pass death sentencing, as the defendant
shall confess the perpetration of the crime or two witnesses testify that they have seen him at
the time of committing the crime (Article 32). This has led to the scarcity of applying the
death penalty. This situation continued until 1897 as this article was abrogated by a higher
order issued on December 23, 1897.
The Egyptian law requires several guarantees to rule the death penalty sentencing as follows:
a. The death sentence should be sentenced by unanimous consent of the tribunal.
b.The view of Mufti of the Republic should be taken.
c. The case should be tried by the Court of Cassation.
A separate section will be allocated to study each of these guarantees.
34
Section I
Unanimity of Court Members
Article 381/2 of the Criminal Procedure Code stipulates that: "the Criminal Court may issue a
death sentence only by unanimous consent of its members."
Accordingly, the death sentencing must be issued by judges' unanimity of the criminal court,
while it should not be passed by the majority of court's members as in other sentences than
execution.
Such guarantee is undoubtedly valuable as it is enough not to rule the sentence if a judge of
the court member feels dissatisfaction with the penalty, so he is entitled not to approve it, and
then the death sentence is excluded.
Article 80 of martial law requires the issuance of death sentence to be issued unanimously by
the military court. If the legislator provided for holding unanimity for passing the death
penalty sentencing, that unanimity should be contemporary to the issuance of the verdict, and
not following it. Therefore, the statement of views unanimity is accompanied by pronouncing
the death penalty sentencing is a necessary condition for the validity of the judgment. The
court must verify these conditions in the sentence otherwise the sentence is considered void.
The Court of Cassation has shown the reason of requiring unanimity in the issuance of death
sentence as follows:
Article 381 of the Criminal Procedure Code had stipulated in the second paragraph that "the
criminal court may issue a death sentence only by unanimous consent of its members and
should take the view of the Mufti of the Republic before the issuance of the sentence."
Accordingly, the legislator stipulated the unanimity when sentencing to death as a procedure
and a prerequisite condition for the validity of the sentence, unlike the general rule in other
sentences - but that was for the magnitude of the punishment in the death penalty, and in
order to surround it by procedural guarantees to be very sure that the sentence is applied in
cases in conformity with the law."
The Cassation Court showed the legal nature of the unanimity saying: "Unanimity is just a
measure of those governing the issuance of death sentence. However, it does not affect the
basis of the right to the issuance of the death penalty itself. The crimes punishable by death
penalty should not be annulled or amended, and no excuses are made for the offenders or
condition that may change the nature of these crimes or the death penalty sentencing.
35
Section II
Mufti's Opinion
Since the death penalty leads to the loss of the spirit of the sentenced and human life belongs
to the creator, the sentence must be accompanied by the opinion of the Islamic Sharia by the
Mufti of the Republic, according to his function.
Article 381/2 of the Criminal Procedure Code stipulated that "before the issuance of the
sentence, the court must take the view of the Mufti of the Republic and send the case to him.
If the court did not receive his opinion within ten days following the forward of papers to
him, the court may issue a sentence."
The Court of Cassation has pointed out the reason of requesting the legislator the Mufti's
opinion before the death sentence saying: "the legislator intended that the judge should be
aware whether the rules of Islamic law allow the execution in this case or not, and not for
knowing the Mufti's opinion in adapting act ascribed to the offender and give him the legal
description." In addition, the mufti's opinion would relieve the sentenced who feel that the
sentence is in accordance with the rules of Islamic Sharia, apart from its impact on the public
opinion.
It is obvious from the previous text that the referral of the accused papers to the Egyptian
Mufti to know his opinion on the case for guidance, but without commitment or waiting
because if his opinion did not reach to the court within ten days following the dispatch of the
file, the court judges the case without waiting for receipt the Mufti's opinion.
If ten days passed without receiving the Mufti's opinion the death sentence is sound and
irreversible; nevertheless, each death sentence is not preceded by this essential action is
considered void.
The Court of Cassation has ruled that: "since Article 381 of the Act of Procedures stipulated
that the criminal court should take the opinion of the Mufti before issuing the death penalty
sentencing, yet nothing in the law obliges the court to indicate or refute the Mufti's opinion."
If Article 381 of the Code of Criminal Procedure has necessitated that the death sentence has
provided that the death penalty should be issued in conjunction with the unanimity; this
condition, taking the Mufti's opinion, is not required in the procedure precedent to the
sentence.
It should be noted in this regard that martial law is free of any text requiring that the military
court should take Mufti's opinion before issuing the death sentence as in Article 381 of the
Criminal Procedure Code. This has led to the division of jurisprudence to two trends:
The First Trend:
This trend believes that the Military Court is not obliged to take the Mufti's opinion before
the issuance of the death penalty sentencing. If the legislator wanted to take the Mufti's
opinion, he would state that expressly in Article 80 of martial law, as it stated the necessity of
issuing death sentencing unanimously.
The Second Trend:
This trend sees the necessity of complying the Military Court to take the Mufti's opinion
enforcing the Article X of martial law which requires that: the military tribunals should
apply, where no special provision is made in this law, special texts of procedures and
penalties contained in the general laws. Accordingly, the text of Article 381 of the Code of
Criminal Procedure should be followed in this regard.
We tend to take the second trend for its agreeing with the proper legal logic and the rules
governing the interpretation of texts.
Section III
36
Bringing the case before the Court of Cassation
Article 46 of Law No. 57 of 1959 stipulated with regard to cases and procedures of
challenging before the Court of Cassation that "if the death sentence issued in presence, the
Prosecution should bring the case before the Court of Cassation attached a note of its opinion
in the sentence, in the date outlined in Article 34 of this law."
The Law has obliged the General Prosecution to apply this text on sentencing to death in
presence and to refer the case to the Court of Cassation to verify the validity of law within
forty days from the date of issuing the sentence without stopping to appeal by the parties to
criminal proceedings.
The Court of Cassation ruled that "Since the General Prosecution had brought the case before
the Court of Cassation accompanied with a note including its opinion in the sentence pursuant to the text of Article 46 of Law No. 57 of 1959 on the cases and procedures of
appeal before the Court of Cassation– after forty days provided for in Article 34 of this law.
However, passing the mentioned date does not mean refusing the prosecution offer because
the legislator wanted to set a regulatory base and not to leave the door open and accelerate to
bring the death sentencing issued before the Court of Cassation in all cases whenever the
sentence is issued in presence".
It ruled also that, "the Court of Cassation is due to consider the case once presented in
accordance with Article 46 above mentioned - and resolute it to define the defects of the
sentence whether the Prosecution submitted a note or not, or before the lapse of the identified
time to appeal."
Thus, we have concluded a brief presentation of safeguards of the death penalty sentencing.
37
Part III
Safeguards of the Execution
The legislator has defined in Articles from 470 to 477 of the Criminal Procedure Code, and
Articles 65 to 72 of the Prisons Act, the procedures to be followed since the issuance of the
death penalty sentencing until its execution, as follows:
1. Bringing the death sentencing before the President of the Republic:
Article 470 of the Criminal Procedure Code stipulated that "whenever the death sentence
became final, the litigation papers must be referred immediately to the President by the
Minister of Justice."
The reason is to give the sentenced a last chance because of the seriousness of the
penalty, and the creation of an opportunity in all cases for the President to give pardon
and commutate the sentence if he wants.
The death sentencing is executed if the pardon order has not been issued during fourteen
days (article 470 second paragraph).
Securities should be forwarded to the President by the Minister of Justice.
2. The sentenced to death should be placed in prison on an order issued by the Department
of Public Prosecutions on the model determined by the Minister of Justice to be
implemented by the government (article 471 criminal proceedings).
3. If the religion of the sentenced person imposes on him to confess or other religious
obligation before death necessary facilities should be provided to enable one of the
religious men to meet him or his relatives on the day appointed for the implementation of
the sentence, to be away from the place of Implementation (Article 472 criminal
proceedings).
4. The implement the death penalty in the prison or elsewhere in secret at the written request
of the Attorney General indicating meeting the condition of referring papers to the
President and the passage of fourteen days on this date (Article 473 criminal proceedings)
and the prison administration must notify the Minister of Interior and the Attorney
General in the set Day for implementation (article 65 / 2 of the Prisons Act).
5. The implementation of the death penalty in presence of deputies of the Attorney General
and prison manager and the prison doctor or another doctor appointed by the Public
Prosecution (474 / 1 criminal proceedings).
6. The death sentence must be recited in addition to the accusation in the place of execution
to be heard by the present people and if the sentenced person wants to make statements
the deputy of the Attorney General record them in an official report (274 / 2 criminal
proceedings).
7. The execution should be done by hanging (article 12 penalties).
8. The deputy of the Attorney General should report the execution officially, and proves the
death certificate and the time of death by a doctor.
9. The government buries the corpse of the sentenced to death on its own expense unless he
has relatives asking to do so and burial must be without burial ceremony (article 477
criminal proceedings).
10. The execution may not be implemented in the official holidays or holidays relating to the
sentenced religion (Article 475 criminal proceedings). Execution may be stopped for
pregnant woman until after two months of the delivery of her baby (Article 476 criminal
proceedings).
38
Death Penalty
In Iraqi Legislation
A study presented to the Arab Penal Reform Organization
Presented by
Reda Mezher Al Azzawi
Director of the Babel Center for Human Rights and Civilian
Development
Iraq \ Babylon
October \ 2007
39
Introduction:
This search is a modest contribution to study and pursue the death penalty in the Arab world
in general and Iraq in particular. For achieving its objectives, the study has followed a
scientific approach based on two facts; the first is the absence of methodological precise
studies which examine the death penalty because the dominant feature of the Arab Judiciary
system is privacy and not publishing documents and facts, the second is the privacy of the
Iraqi situation and the loss of the national archives of Iraq Republic even though Iraq is one
of the few countries that apply the death penalty at the present time with announcing these
sentences.
Importance of the study:
The importance of the study comes as an attempt to enlighten a dark part in the Arab
judiciary history, the study of the death penalty, and to read capital punishment from different
angles.
Before going into the midst of a legal research on the death penalty, especially in Iraqi
legislation, we must remember that execution is one of the oldest and most gravity
punishment which aroused a doctrinal argument to study the validity as to its retention or
abolition.
Considered the ideas on death penalty, they are variant between rejections and welcoming.
People against the death penalty believe that it intersects with the divine will preserve life,
and they enhance their opinion by psychological and social sayings ranging from the
psychological irregularity and social incapacity that may urge an individual to commit
criminal behavior which he may not be perpetrated in a sound and cohesive psychological
mood. While advocators of the death penalty retention believe that in order to purify the
society from the criminal behavior, the corrupt organ should be amputated depending on the
saying 'the criminal behavior has an infectious and transition character especially in poor
communities.
Since there were trends calling for the abolition of capital punishment which are contrary to
the current social, political and legitimacy conditions in a country like Iraq whose current
situation calls for enhancing the position and status of the Authority, in view of an occupier
presence and the lack of security, political, social and economic stability in addition to the
draft law approved by the current Iraqi constitution representing in the new Federal State
Form. Such new Form calls for granting the regional governments broad powers at the
legislative, executive and judicial levels and reducing the Central Government competencies
that we need to strengthen in the current situation. So we believe that we need strong Central
Authority to work in accordance with strong legal and judicial system and issue sentences
commensurate with the current situation.
Execution is a penalty applied by the name of the people enforcing a judicial sentence against
those found guilty in a crime punishable to death, whether this penalty is by hanging or
shooting to death. This penalty is also deterrent to those who witness the sentenced death
because it had a profound impact on witnesses. Moreover, it is one of the original physical
punishments prescribed by the Iraqi legislator.
To identify the terminology of the death penalty we have to distinguish this term in doctrine,
legislation, and judiciary.
40
In the doctrine, many definitions were mentioned as Dr. Mohamed Najib Hosni defined it as
(the loss of the convicted life), Dr. Maher Abdu Shoush defined it as (the loss of the
convicted by means prescribed by law), and Dr. Mohamed Shalal Habib and professor Ali
Hussein Mohammed Tawalbah defined it as (the loss of the convicted for sentencing him to
death by a competent court for committing a serious crime prescribed by law). Noting
through the interpretation of the previous definitions that they agree with the substantive
aspect of the death penalty, which is (the loss of the convicted life).
In legislation, the Iraqi legislator defined the death penalty in Article (86) of the Penal law
No. 111 of 1969, as amended (hanging the convicted to death), and he also partitioned
penalties in the Article 10 of the Penal Code into original penalties as follows:
A- Execution: "killing the sentenced by firing squad relying on the Law of Military
Procedures Code against the militant person, and Code of Criminal Procedure Law No. (23),
1971.
The Arab laws position on setting specific definition to this penalty; some of them defined
the death penalty in this regard such as the Jordanian Penal Code which defined the death
penalty in Article 17 / 1 as (hanging the convicted) and some others pointed out that (each
sentenced to death shall be hanged), as well as the position of the Egyptian Penal Code (A/
13) and the Libyan (A/ 19).
The other Arab laws did not set a specific definition on capital punishment and just referred
to its position between punishments, especially the Penal Code: Moroccan (A/ 16), Algerian
(A/5), Omani (A/39), and Tunisian (A/5) and Qatari (A/34).
‫ــــــــــــــــــــــــــــــــــــــــــــــــــــــــــ‬
(1) Dr. Ali Hassan Khalaf, Dr. Sultan Al-Shawi. The General Principles of the Penal
Code, Kuwait Press, 1982 p. 405
(2) Dr. Mahmoud Najib Hosni, the explanation of the Penal Code, the General Section,
Dar Arab Renaissance, 5,1982, p. 690
(3) Dr. Maher Abdu Shoush, the General Provisions in the Penal Code, the University of
Mosul 1, p. 463
(4) Dr. Mohamed Shala Habib. Criminology and punishment, Maysara house for
publication and distribution, Amman-Jordan, 1 1998, p. 223
As for judiciary position on setting a specific definition to death penalty, there is no decision
or resolution on this penalty.
With regard to the Islamic Sharia definition of the death penalty, the tolerant Islamic law did
not define it under this name as neither the term (execution) nor its derivates has been
mentioned in the Quran, but its synonyms "retaliation" is mentioned in Allah's saying in the
Quranic verse ''O you who believe! Retaliation is prescribed for you in the matter of the
slain,'' 11(I 178), and his saying ''and there is a life for you in retaliation, O men of
understanding, that you may restrain yourselves,'' 12 (I 179)
It was mentioned also in the sense of murdering in Allah's saying "the punishment of those
who wage war against Allah and his messenger, and strive with might and main for mischief
through the land is: execution," 13 (V 33) and the murder mentioned in the Prophet's saying
(may the blessings and peace of Allah be upon him) '' he who converted his religion should
be murdered''14.
11
Al Bakara, verse 178
Al Bakara, Verse 179
13
Al Maeda, verse 33
14
Refer to Ahmed Fathi Bahnasy, criminal responsibility in Islamic jurisprudence. Sunrise House, i
4.1988, p. 115
12
41
The equivalent of the death penalty is mentioned in the Allah's saying ''we ordained therein
for them: life for life"(V 45) as well as His saying ''whoever is slain unjustly, we have indeed
given to his heir authority," (XVII 33).
After displaying the meaning of the death penalty, here are some remarks on the definition
provided by the Iraqi legislator on the death penalty in the Iraqi Penal Code No. 111 of 1969
amended as follows:
1- The definition is dominated by the pro forma of hanging over the objective side to end
the life, which is the essence of the penalty.
2- The Iraqi legislator cited the mean of hanging exclusively for the execution of the
death penalty, thus it prevents the application of any other method to execute the
penalty in the Penal Code No. 111 of 1969 as amended.
3- Hanging does not represent the only mean for execution in Iraqi legislation, as this
punishment is applied by firing squad for militants according to Article 17 of the
Military Penal Code No. 30 of 1940 as amended.
Historic précis:
Talking about the history of the death penalty in the Arab world is based on the roots of this
penalty in some old legislation published in the history of mankind, and we will focus on the
legislations of Iraq (Rafidain valley) the legislation of Pharaonic Egypt.
1. Legislations of Rafidain valley
The death penalty has emerged in the ancient communities in the Rafidain valley, as of the
oldest communities which have applied the law to organize its lives15. Among legislations
that have stated the death penalty for serious crimes committed by individuals is the law of
(Aishnona) which stipulated the death penalty for the moral crimes. Article (26) punished to
death whoever raped a girl without her parents' consent, as well as the theft crimes where
Article (10) punished to death whoever has not been able to demonstrate the legitimacy of
funds on his possession if it is stolen16. Article 14 stipulates the death for kidnapping children
while Articles (15 and 16) has punished who help slave to escape to outside the city or hide
them.
Death penalty have found a place in the Assyrian laws as well, as it stipulated the execution
within the frame of the religious offenses (whoever arrested accused of magic work or accuse
someone of committing it should be thrown in the river, and is regarded guilty if he sank, and
the one who informed about him awarded by taking his property, but if he is proved innocent
and returned safely, the one who informed about him should be sentence to death. The
Assyrian laws punished the woman who pronounces disbelief or vulgar words to death
(Article 2 of the first tableau) (3)17
In Haymow Rabbi Law passed in 1700 B.C., death penalty was set for many crimes. In the
scope of crimes against the state; whoever hides a conspirer against the State and does not
arrest him should be sentenced to death (A/109), and whoever did not perform the military
service or rented a substitute should be punished to death (A/26).
The military leader who usurps funds of a soldier or deprive him from the King's grant should
be sentenced to death (A/ 34)18
15
Dr. Taha Baker, and Fuad Safar, and Ahmed Yacoub Al Shamsy, Ancient history, Trade and Printing
Limited Company, i 3, 1953
16
Dr. Fawzi Al Rashid, the Iraqi old Legislations. Freedom House press. I 1, 1973, p. 75
17
Dr. Hafez Hashim, the history of law, Ani press. Baghdad, i 1, 1973, p. 86
18
Shuaib Ahmad Al-Hamadani, the law Hamou Rabbie, Oxford junior high June industrial, Baghdad,
1989, p. 59
42
As to the scope of crimes committed against persons, Haymow Rabi law did not contain
express statement addressing deliberate murders, however the principle of retaliation
mentioned in this implied that the deliberate murder penalty should be by the murder of the
murderer.
The Penal Code ruled the death penalty also to whoever testifies false testimony to stick the
charge to the accused of the deliberated murder crime, and fails to prove his testimony.
Article (153) has punished the wife who kills his husband for the sake of another man to
death.
As to the scope of moral crimes, Article (157) of Haymow Rabbi Law has punished to death
burning both the son who had sexual intercourse with his mother after the father's death. The
same penalty is imposed on the father who had sex with his daughter in law to be tied and
thrown into the river (A/155) (drowning to death).
The same penalty is applied to the wife accused of betraying her husband and prevented from
swearing to prove her innocence (A/131).
The law of Haymow Rabbi imposed the death penalty in Article (130) on whoever raped a
girl who completed her marriage ceremonies.
2. Old Egyptian legislation:
Egypt had known the death penalty since the first periods of the Pharaonic history. The
Egyptian included the death penalty at the time of ancient State for many crimes including
the killing of holy animals, magic, non-disclosure of a conspiracy against the Pharaoh, false
statement on financial resources, and not assisting who exposed to highway robbery. Ways of
the application of this penalty have varied between sentencing to death that killed his father
by driving a sharp cane piece in his body and the executioners cut his body into small pieces
by a special instrument and then burnt slowly after casting him a heap of straw. They were
also burning the adulterous.
Subject Origination
The study is based on set of important searches, for resuming its methodology, and ratified
some Iraqi Penal Codes and important studies, searches and some judicial decisions of the
Iraqi Court of Cassation.
Research Plan
Through the preparation of this study on the death penalty in general and in Iraqi legislation
in particular, this study will be divided into introduction, three chapters and Conclusion. The
first chapter addresses death penalty in criminal legislation that includes all articles
punishable by death in the private and public Iraqi Penal Code, the second addresses
safeguards and adequacy of the death penalty and the third address verdicts issued by the
regular courts and military courts during the previous period. The conclusion includes the
results of the study and some suggestions and recommendations.
43
Section I
Crimes punishable by death in the Iraqi penal legislation
Searching in crimes punishable by the death in the criminal legislation requires dividing this
chapter into two parts; the first addresses crimes punishable by death in Iraqi Penal Code No.
111 of 1969 amended, and the second addresses the other criminal laws that discussed the
execution.
First Part: Crimes punishable by death in the Penal Code
Death penalty has been mentioned in Iraq's Penal Code No. 111 of 1969 amended, as being a
mandatory or optional punishment. The Iraqi legislator has provided the death penalty in
various places in this law as follows;
Subsection I: Crimes damaging the public interest
1. Crimes threatening State external security
The Iraqi legislator mentioned death penalty to the perpetrators of the crimes set forth in
Articles (156-165) of the Penal Code, either mandatory or optional. Following are the
articles:
Article (156):
"Should be punishable by death whoever committed an act intentionally aiming at touching
the State independence, safety or territorial integrity and any act that may lead to that.''
However the legislator did not define the acts that are likely to touch the State independence
and territorial integrity. The Article stipulated also that the act committed should be
deliberate to be punishable by death.
Article (157/1)
Should be punishable by death whoever joined the enemy's rank or the armed forces of a
State in case of war with Iraq, and whoever fought against Iraq while he is abroad. The
penalty is death if the citizen's affiliation to a hostile group that is not considered combatants.
Article (158)
Should be punishable by death penalty or life imprisonment whoever cooperated or contacted
with a foreign State or with anyone working for its benefit to commit hostile acts against Iraq
that may cause war, sever political ties lead to war, or fabricated means leading to that
purpose.
Article (159)
Should be punishable by death whoever cooperated or contacted with hostile foreign State or
with anyone working for its benefit to help it in their war against Iraq or to damage the Iraqi
military operations, and whoever managed means to do so or worked on the military
operations success.
Article (160)
Should be punishable by death whoever helped the enemy's access or advance to the Country
by raising dissension among people, weaken the morale of the armed forces, instigating
members to join or surrender the enemy, shaking their loyalty to the country or their
44
confidence in the defense, as well as whoever handed over the enemy a member of armed
forces.
Article (161/2)
Should be punishable by death whoever intervened deliberately to collect soldiers, people,
money, supplies or equipments for the interest of a State in case of war against Iraq, or for the
interest of a hostile group even if does not have the character of combatants.
Article (162)
Should be punishable by death whoever facilitated the enemy's access to the Country or
handed him over a part of its territories, ports, bulwark, military site, a ship, an aircraft, a
weapon, ammunition, rations, food or military missions or mean of transport, factory, facility
or others prepared for the defense of the country, or provided him with soldiers, persons or
money or a service by informing news or guidance.
Article (164) should be punishable by death:
1. whoever contacted with a foreign State or one of who works for its benefit, or involved in
espionage with any of them, in order to damage the status of Iraq's military, political or
economic conditions.
2. Whoever intentionally destroyed, hid, stole or forged papers or documents and knows that
they serve to demonstrate Iraq's rights before a foreign country or relates to the State external
security or any other national interests.
Article (165)
Should be punishable by temporary imprisonment whoever mobilized soldiers against a
foreign State, fought his State, joined the armed forces of another State in case of war or
committed any hostile act against it without the permission of the Government. If the military
mobilization resulted in breaking war between Iraq and that State, the penalty should be
death.
Noticing through the interpretation of the previous texts that most of them punish the
perpetrator of a nation's treason act, which should damage the high interests of the State to be
applicable or for the interest of another State on the expense of his own State, whether
occurring inside or outside the State.
2. Crimes threatening State internal security
The Cabinet order No. 3 of 2004 has reapplied the death penalty for crimes afore mentioned
after reprieving the Temporary Coalition Authority the death penalty in 2003. The Iraqi
legislator stipulated the death penalty as a mandatory punishment sometimes and optional
other times, and for specific acts such falling within the borders of the State.
Article (190)
Should be punishable by life or temporary imprisonment whoever attempted by force or
violence to overthrow the Republican Regime acknowledged by the Constitution or to change
the State Constitution or the form of Government. If the offense is carried out by a gang using
bombs, dynamite, other explosives substances or firearms, the penalty should be death or life
imprisonment. Death penalty is applied if the crime led to the death of a human being.
Article (191)
Should be punishable by death or life imprisonment whoever managed a Section of the armed
forces, a military station, a port or a city without mandate from the government. The same
45
penalty is applied against whoever continued in a military command whatsoever, contrary to
the order issued by the government, as well as every force leader retained his soldiers
congregated and ready after the issuance of demobilization.
Article (192/3)
If disobedience led to an armed fighting with the State forces or the death of a human being,
the punishment should be death penalty.
Article (193)
Should be punishable by life or temporary imprisonment whoever has the right to order the
military forces members and charged them to disrupt the Government's orders for a criminal
purpose. If such act led to hindering the implementation of the Government orders, he should
be punished by death or life imprisonment while the soldiers' leaders or their commanders
who obeyed him should be punished by life or temporary imprisonment.
Article (194)
Should be punishable by death whoever arranged, led or assumed the leadership of an armed
gang to attack people, prevent the application of laws, usurp land, plunder properties owned
the State or a group people by force or resist public authority men.
Article (195)
Should be punishable by imprisonment whoever aimed at provoking civil war or sectarian
fighting by arming citizens or inciting them to hold arms against each other. The penalty
should be execution if the offender achieved what he aimed at.
Article (196)
Should be punishable by imprisonment whoever tried by force or threat to occupy a public
property or building designated for governmental interests and services or public facilities or
institutions, captured them by any way or prevented its use for the purpose prepared for it. If
the offense is committed by an armed gang, the penalty shall be life or temporary
imprisonment for the members, but death for those who composed or led the gang.
Article (197)
1-Should be punishable by death or imprisonment whoever intentionally vandalized,
demolished, destroyed or severely damaged public buildings or properties dedicated for
governmental circuits and interests, institutes and public utilities, associations regarded
legally of public utility and oil installations, other State enterprises, other industrial State
facilities, electrical and water plants, or means of transportation, bridges, dams or drainage
water, places prepared for public meetings or turnouts or any public fund of great
importance in the national economy in order to topple regime decided by the Constitution.
2-Should be punishable by death whoever used explosive substances in the commission of a
crime, or if the crime resulted in the death of a person who was present in those places.
Article (201)
Should be punishable by death whoever acclaimed or circulated the principles of Zionism,
including the Masonic, affiliated to any of its institutions, helped it monetarily or morally or
acted in a way to achieve its purposes.
Subsection II: Crimes on the Public Authorities
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1. Crimes of statutory bodies
Article (223)
1. Should be punishable by death whoever murdered the President deliberately.
2. Should be punishable by temporary imprisonment whoever assaulted on President but
not reaching the intentional murder or commencing to.
3. Should be punishable by the same penalties, as may be required, if the crime was
against President of foreign State during his official visit to Iraq.
Subsection III: Crimes on drowning and public utilities
Article (349/2)
(should be punishable by death or imprisonment if it led to the death of a man)
Subsection IV: Crimes against the Safety of means of public transportation
Article (354)
Should be punishable by imprisonment whoever deliberately jeopardized, in any way, the
safety of air or water navigation; safety of train, ship, an aircraft or any other means of public
transportation.
Should be punishable by imprisonment if the act resulted in a disaster to the train or else. The
penalty should be death or life imprisonment if the crime resulted in the death of a human
being. At this point the legislator stressed the penalty to death as the act coupled with the
death of a man.
Article (355/3)
Should be punishable by death or imprisonment if the act led to a disaster or death of a
human being. . Thus, the legislator stressed the penalty to death as the act coupled with the
death of a man.
Subsection V: Crimes against persons:
1- Crimes against human life and physical safety
Article (406)
1-Should be punishable by death whoever deliberately killed a man of the following cases:
a. If it was premeditated murder and lying in wait with premeditation.
b. If the murder carried out by using poisonous or explosive substance.
c. If the murder was for religious reason or for money, or if the offender uses brutal
methods to commit the crime.
d. If the victim was of the murderer's ascendant.
e. If the murder occurred against an employee or assigned to a public service during his
service or because of it.
f. If the offender intended to kill two or more persons in an act.
g. If the deliberate murder is associated with an offense or more of intentional murder.
h. If the murder is occurred to commit a felony or misdemeanor punishable by
imprisonment for a period not less than a year, to facilitate its commission or to
enable the perpetrators or his partners to flee or escape of punishment
i. If the offender is sentenced to life imprisonment for an intentional murder crime, and
committed a deliberate murder or attempted during the penalty service.
In these cases, the death penalty shall be mandatory.
2- Should be punishable by death or imprisonment in the following cases:
a. If the offender intended to kill a person, but his act caused the death of two.
b. If the offender mutilated the body of the victim after his death.
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c. If the offender is sentenced to imprisonment in other case not mentioned in paragraph
(1-i) of this Article, and committed a premeditated murder during the period of
penalty implementation.
Therefore, the legislator authorized the tribunal the estimated power to impose the
death penalty or life imprisonment.
2. Crimes threatening human's freedom and privacy
Article (423)
Who, himself or by a third party, kidnapped a female of eighteen years by coercion or
deception shall be punishable by fifteen years in prison. (If the crime was accompanied by
raping the victim or attempting to do, the penalty should be death or life imprisonment)
Article (424)
If the coercion indicated in Articles 422 and 423, or torture in paragraph b of Article 421
resulted in the death of the kidnapped, the penalty should be death or life imprisonment.
3. Crimes against public morals and ethics
Article (393/4)
Decision No. 488 of 11/4/1978 issued by the dissolved Revolutionary Command Council
punishes with execution whoever had sexual intercourse with a girl, aged 15 years, of his
relatives to a third degree without her consent; which act resulted in her death, pregnancy or
loss of virginity. The Provisional Coalition Authority modified the penalty to life
imprisonment, and then an order No. 3 of 2004 issued by the Cabinet reenactment the death
penalty.
Section II
Crimes punishable by death in special criminal laws
Part I: Crimes punishable by death under the Military Penal Code
Crimes threatening the State Security.
Article (28) punishable by death whoever:
1. Endeavored to split part of Iraq from the Government Administration or to put Iraq or
a part of it under the control of a foreign state.
2. Left or handed over the enemy, or used a mean to force, lure or order another person
to leave or hand over a site, place, station post or guard, in a way opposing the
military rules; handed over rendered the specialized military labs equipped with war
supplies and tools, factories, stores, spying tools and means of transportation; burnt or
attacked army airports or aircraft, made them deliberately unfit for work; caused
damage to country and benefit the enemy by sabotaging bridges, dams, railway and
highways and facilitated the enemy seizure a section of the military forces.
3. Got or photocopied objects, documents or military information must remain secret for
the safety and interest of the State, and delivered them directly or by an agent to a
foreign State at the time of peace or war.
4. Was a leader of military battalion and handed it over to the enemy before implement
all means of defense or neglect applying those mentioned.
5. Was a leader to a troop and negotiated with the enemy to make an agreement with
him requiring the delivery of military units under his control and arms without doing
the required duties of his job.
48
6. Was a leader and had become a cause to extradite a river, sea or air force under his
control or to extradite its crew without doing the required duties of his job.
Article 29: punishable by death of one of the following crimes committed in wartime in order
to help the enemy, to damage the army or one of or allied forces or resulted in the death or
murder of one or many militants civilians intentionally:
First: inciting the Iraqi people or the affiliated to Coalition State Forces with the Iraqi
government who can go into battle with the enemy.
Second: spreading the spirit of rebellion among Iraqi military forces or allied forces to
instigate an armed mutiny against the existing authority by constitution.
Third: disclosing the secret password, signals, alerts or private or confidential
recommendations of guards, gendarmes and telecommunications codes.
Fourth: distorting news or recommendations of the service or the negligence to do that
properly when confronting the enemy.
Fifth: informing the enemy about the Iraqi government forces or a troop of Coalition
Government or guiding the mentioned forces to go on wrong road deliberately.
Sixth: causing panic in an Iraqi force or leading it to act randomly by making false military
signals or others, inducing them to flee or impeding the collection of separated soldiers.
Seventh: contacting or communicating with persons affiliated to the enemy forces or the
residences in hostile countries to disclose conditions relating to the conduct of war in writing,
oral or by any means of communication.
Eighth: neglecting the implementation of his duties or part of it, changing an order on his
own decision or having the authority to order members of the armed forces to disrupt the
government's order.
Ninth: broadcasting or circuiting the enemy's leaflets or publications among the army forces
in bad faith.
Tenth: neglecting the maintenance of units who is in charge of in bad faith.
Eleventh: releasing war prisoners or causing to do so.
Twelfth: informing the enemy about the signals used in the war.
Thirteenth: vandalizing or destroying machines of war planes and warships, or engines or
equipments, missing their military, reducing these capacities or causing the weakness of the
security systems capacity to maintain the citizens' security, their properties and State borders.
Fourteenth: committing and act intentionally that would endanger the security and safety of
all means of communication to risk, such as enabling the enemy to wiretap war calls on
movements or controlling the communication system or the wireless network.
Article (35)
First: should be punishable by death whoever flees to the enemy side.
Article (61/7)
Stipulates that the penalty should be death if the use of force resulted in the death of the
victim.
Part II: Crimes punishable by death in the Anti-Terrorism Act No. 13 of 2005
Due to the current circumstances of hazardous actions threatening the lives of citizens
directly or indirectly in Iraq in particular and the whole world in general, the Iraqi legislator
issued recently a special law entitled the Anti-Terrorism Act that is considered one of the
special penal laws. The legislator has penalized the perpetrator of certain crimes to death as
follow:
49
Article (4) stipulated that:
1. Should be punishable to death whoever committed, as an original perpetrator or partner of
any of the terrorism acts contained in Articles two and three herein, the instigator, planner,
financer and whoever enabled the terrorists to carry out crimes contained in this law by the
penalty of the original perpetrator.
Part III:
Crimes punishable by death in Drug Law
The Iraqi legislator mentioned in Article 14 of the Drug law the death penalty as legal
punishment and aggravated the punishment to death from life imprisonment in case of
committing trafficking narcotic substances. The legislator has given discretion for the court to
estimate the quantity of possession considered trading in the eyes of the law.
Chapter III
Safeguards and adequacy of death penalty
This chapter is devoted to discuss the safeguards and adequacy of the death penalty
practically. Dividing into two subsections; the first discusses the safeguards and the second
the adequacy of these safeguards in practical application.
Part I: safeguards of death penalty application
Through discussing crimes punishable by death in the Iraqi law and the application in the
reality of Iraqi courts at the present time, several observation highlights on the safeguards of
the application of this penalty. These safeguards are divided into two parts; the first indicates
the safeguards during investigation and trial, and the second in the course of execution.
Subsection I: safeguards during investigation and trial stages
We can say that the safeguards available to the accused in the death penalty in Iraqi law are
either legal excuses or the three pardon types (judicial, private and public), or may be a
prescription case, as we are going to discuss later.
1. Legal excuses exempted from punishment
Excuses exempted from punishment are reasons pointed out by law which any of them are
likely to exempt the offender from the stated penalty pursuant the Court's judgment in spite of
providing the elements of the crime. The legal excuse is marked by a set of characteristics;
50
legitimacy, as the excuse is a realistic matter which is summed up by the legislator expressly
indicating conditions of every excuse, the implied facts and banned the court to state excuse
not set in a text; binding, as the court can not deny the existence of excuse when its
conditions are available; retention, as the excuse does not imply the elapsing of crime and
finally influencing the penalty, as the excuse exempted of ruling by any original,
supplementary or complementary penalty.
The Iraqi legislature has mentioned two cases of legal excuses exempt from crimes
punishable by death, as follows:
a. Excuse exempted from penalties of crimes threatening State external security. Such
excuse is provided in article 187 of the Penal Code, stating (should be exempted from
the penalties stated for crimes listed in this chapter, the one who set out to inform the
public authorities of all his information before the commission of the crime and
investigation.)
b. Excuse exempted from penalties of crimes threatening the State internal security
provided in Article (218) (should be exempted from penalties stated for crimes listed
in this section, the one who initiated to inform authorities of all what he knows before
committing the crime and proceeding in the investigation.) looking into these two
excuses we observe that the excuse shall not be taken into consideration if the
notification was not prior to the commission of the crime and investigation.
c. Excuse exempted from penalty stipulated in Article (5) paragraph 1 of the AntiTerrorism Law (1- shall be exempted from the penalties contained in this Law
whoever informed the authorities before or in course of planning a crime and helped
to arrest offenders, or prevented the execution of the crime.)
d. Excuse exempted from penalties provided for in Article 32 stating (crime partner shall
be exempted from punishment if he confessed his intention to commit crimes
stipulated in Articles (28), (29), (30) herein prior to commission, thus he could
prevent the commission of the crime or facilitate the arrest of the participants).
e. Excuse exempted from penalty stipulated in Article (47/3) of the Military Penal Code
stipulating that (no punishment against who agreed on the commission of the crime
set forth in item (I) of this Article and disclosed their plan prior to the occurrence of
the crime.)
2. Amnesty: in this part, we are going to tackle the relationship between death penalty and
judicial, general and special amnesty.
A. Judicial Amnesty: The judicial amnesty is defined as (a legal system including granting
the judge the amnesty penalty of the authority) the lesson of judicial amnesty is evident that
the legislator granted the judge the authority not to punish the offender for many reasons
explained explicitly here.
The judicial amnesty is advantaged by legitimacy because the legislator provided it expressly
and the judge may pardon the offender only in cases other than prescribed by law, unbinding.
Notwithstanding, the judge could not pardon even when the conditions are available. The
impact of the judicial amnesty on the exemption from the death penalty is clear in two points:
1. Judicial amnesty stated in Article 187 which stipulates that (the offenders who
initiated to inform the Public Authorities of his information threatening the State
external security, and if the notification occurred after the commission of the crime
and before proceeding in the investigation.)
2. Judicial amnesty stated in Article 218 which states that (the offenders who initiated to
notify the public authorities of all his information about crimes threatening the State
external security, and if the notification occurred after the implementation of the
51
crime and before proceeding in the investigation, or if notification happened during
investigation and facilitated the arrest of other offender.)
B. Public Amnesty: is the elimination of the criminal character of the criminal offense
retroactively as if it were permissible which is considered a waiver from the social right on
the offender and the amnesty should not be granted only by law and it can only be issued in
any case of the lawsuit, and often this measure can be taken in times of particular cases after
a period of political unrest, and this amnesty is not issued against certain persons, but to all
persons involved in the crime. It is not necessary that amnesty annuls the entire penalty; a
part of the penalty can be abolished or commute with another, so amnesty does not cancel the
crime, and that is the so-called partial amnesty.
The Iraqi legislator has applied that and stipulated in Article (153/1) of the penal code that (if
a law on public amnesty issued as a part of penalty sentenced, as the special amnesty, and its
provisions are applied to it). The dissolved Revolution Command Council, which has a power
of issuing decisions at that time, had many laws of special pardons, including the famous
resolution No. 225 of 2002
C. Special Amnesty: that is defined as a decision provides the acquittal of the sentenced
person of the whole penalty or only part of it or the replacement with a lighter sentence. It is
the authority of the President of the State often practiced as constitutional right in every
country, and this is a procedure relating to the sentenced person is motivated by compassion
and sympathy not related to specific types of crimes.
As for the impact of the special amnesty in the death penalty, a decision of exempting the
sentenced to death may be issued, and this is what the Iraqi legislator took by in Article
(154/1) (Special Amnesty issued by a republican decree and resulted in the elapse of the
penalty entirely, some of them or commuting to another one is of penalties prescribed by
law.)
Part II: legal safeguards for the death penalty after sentencing
Legal safeguards for the implementation of the death penalty after the sentencing are those
provided by the Iraqi legislator in chapter II on the implementation of the death penalty of the
Law of Criminal Procedure Code No. 23 of 1971, including:
1. Article 285/1 stipulating that (death sentence should be executed only by a
Republican Decree .....)
2. Article 286 of the law stipulated that the petition should be sent to the Court of
Cassation which is responsible for checking it. If the death decision was ratified, the
petition should be sent to the Minister of Justice and then to the Presidency of the Republic
to obtain the Presidential Decree for execution.
3. If the sentenced person is a pregnant woman, the law obliged the prison
administration to send a prosecution to the Public Appeal to be submitted to the Minister of
Justice to defer or commute the execution. The minister in turn submits the prosecution to
the Republican Presidency who defers the execution until the issuance of a new order by
the Minister of Justice based on what has been decided by the presidency. If the order
stipulated the death sentencing, it should be executed only after four months of giving birth,
as being provided in Article 287 of the Principles of Criminal Procedure in Iraq.
4. The penalty should be executed in the presence of a bench composed of the prison
director, a judge from the Criminal Court, a representative of the prosecution if available, a
representative of the Ministry of Interior and the prison doctor or a doctor appointed by the
Ministry of Health and the lawyer of the sentenced if requested, as being provided in
Article 288 of the Principles of Criminal Procedure Code in Iraq.
52
5. Relatives of the sentenced shall visit him the day before the execution, and the prison
administration should inform them, as being provided in Article 291 of the Principles of
Criminal Procedure Code in Iraq.
6. Death may not be executed in official holidays, festivities and special events of the
sentenced religion, as being provided in Article 290 of the Principles of Criminal Procedure
Code in Iraq.
7. If the sentenced religion obliges him certain religious duties, the prison shall have the
right to meet a religious man, as being provided in Article 292 of the Principles of Criminal
Procedure Code in Iraq.
Subsection II: adequacy of death penalty safeguards
Measuring the adequacy of safeguards provided by the Iraqi legislator for the accused
sentenced to death, related to a set of requirements:
1. Society requirements: As the Iraqi legislator took into consideration the special nature of
the Iraqi society as a Muslim Arab society which forms the nature of the legislation, in
addition to the specificity of the Iraqi society resulting from the customs and traditions
characterizing the Iraqi law than other regional legislations.
2.Constitutional requirements: the Iraqi legislator followed the constitutional texts contained
in the current text of the Iraqi Constitution, though many laws prior to the expiry of the
recent Constitution of 2005, is still valid.
3. Humanitarian requirements: the Iraqi legislator has provided many substantive and
procedural safeguards which are so consistent with the provisions of the international
conventions and treaties, from which we select the safeguards ensuring the protection of
the rights of those facing the death penalty, adopted by the Economic and Social Council
of the United Nations, under No. 50/1984 of May 25, 1984.
53
Chapter III
Death sentences issued from the ordinary and military courts
The process of listing death sentences passed in Iraq during the previous decades, whether
those issued by the ordinary or military courts seems very difficult, for the following reasons:
1. The former regime had succeeded, after the success of the coup d'état in July 1968, to
control the overall documents of the Iraqi State from 1921 until 1968 and collected all
documents recording judgments and judicial decisions for not acknowledging the
previous Iraqi judiciary for its issuance many death sentences against the so-called
(former militants of Ba'ath Party), the only rescued are those figures who managed to
smuggle of Iraq.
2. All Special Courts deliberations established after 1968 and lasted until 2003 were
very confidential in all their stages and all studies have proved that the former regime
had burned documents proving that and referred to the penalties issued against his
opponents.
3. Lack of a complete and clear database for the decisions issued by the Iraqi courts
during the previous term, since the use of an electronic database for courts had been
made very soon not in the previous periods because of wars and economic conditions
which Iraq passed.
4. Lack of sufficient time to restrict these provisions because that requires research
office, reviewing sources of information, and relatively a long time.
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Conclusion
After tackling the importance of this issue and the history of death penalty in brief, the
position of the Iraqi legislator for crimes punishable be death in the Iraqi legislation; after
reading about the most important Iraqi legal sources that discuss this penalty and the
extensive discussions with professors of criminal law at the University of Babylon and after
monitoring and reading the Iraqi legal texts in this field, we have reached a set of results
which we would like to put forward in this paper:
First: At the level of the legislator's excessiveness for applying the death sentencing for
crimes committed, we believe the Iraqi legislator is extravagant in applying this penalty in the
mid-1970s in the area for the crimes committed; the legislator had expanded the use of the
death penalty sentencing in the Iraqi Penal Code No. 111 of 1969 as amended, and other
Penal Code such as the Anti-Terrorism Law and the Drugs Law as a result of the
circumstances of the State at the present time.
With regard to the Iraqi judiciary, we have concluded that the initial Criminal Courts does
prefer to activate the sentence while the Cassation Court in Iraq is clearly inclined to tighten
the penalty issued against the perpetrators, particularly punishable by death.
We believe that the safeguards in their various forms, which can be considered (as defined
judicially and legally) inadequate discriminatory and preliminary ones to make the Iraqi law
responds to the international covenants and conventions.
Second: Recommendations:
1. Death penalty abolition is a difficult decision in the current circumstances because the
abolition contradicts with the rules of the Islamic law rooted firmly in the Arab
society, so we must focus on the partial amendment of the substantive and procedural
provisions. The researcher believes also that the retention of the penalty will help
secure the security situation and save Iraq of the exceptional situation.
2. Making further field studies and researches to bridge the shortfall in Iraqi legal
library with regard to the death penalty
3. Activating the role of civil society with regard to the death penalty educationally in
accordance with media strategies through the delivery of vision-based channels to
national legislation
4. Proposing the creation of a new body to check the judicial decisions of the death
penalty before passing the Republican decrees for the issuance of executive decisions,
pursuant to Article 108 of the current Iraqi Constitution.
5. Proposing legislations which ensure human and justice implementation of the death
sentences through finding a supervisor body and independent of the executive power
in accordance with Article 108 of the current Iraqi Constitution,
6. Re-focusing on efforts which aim at eliminating and decreasing the political effects on
the judicial power, and not applying the penalty as a means to avenge the litigants and
opponents.
7. Not applying some rules of the Islamic Sharia is a pretext to determine the death
penalty excessively as being a penalty for the crimes committed.
55
Death penalty in Jordan
Prepared by
Gabber Malkawi and Nesren Zuraikat
Lawyers
Introduction:-
56
Noticing recently the raise of voices calling for the abolition of the death penalty all over the
world, as one of the oldest known punishments by mankind since the death penalty affects the
first and most fundamental human rights, that is the right to life.
In the past ten or fifteen years, with the growth of human rights movement in the Arab world
and the emergence of nongovernmental organizations and institutions and the Civil
Community Organizations, including organizations working in human rights, the Arab world
witnessed the development of human rights concepts and defending for them. No wonder that
speaking about the death penalty is as the most important aroused topics in the Arab world in
this context.
Jordan, which is an important part of the Arab system and occupies medial strategic center in
the Arab countries, locating in a circle of the most disputed circles in the world, should be an
important station of the political and rightful arguments. Moreover, Jordan has been affected
much by the circumstances of the region and threatened at a stage to be a target to the
terrorism acts, raising the fears of the government, which were translated into legislations
aiming at the protection of land and citizen, however, these legislations affect directly the
freedoms and human rights. It could be said that Jordan is passing a stress stage in dealing
with crimes committed and expected; therefore it has enacted laws and constrained
precautionary measures and procedures in the last few years. Proportion of the judiciary
sentences governing by the most severe penalty prescribed by law for crimes in general and
terrorism crimes touching the national security in particular, rose.
This public and obvious situation invites us to stand before the death penalty in Jordon, for a
while, and compare its recent condition with the historic reading of the Jordanian Penal Code.
Death penalty is known in the Jordanian Law in Article 17 of Penal Code as "hanging the
sentenced to death." Dealing with the death penalty in Jordon witnesses a change towards
commuting the penalty in some legal aspects at times and intensifying it at other times.
In fact, dealing with the death penalty in Jordan has a positive dimension. Looking generally
at the subject, we predict that with the increase of the death sentences, the size of crimes
leading to the increase of the death sentences proportion rose. Meanwhile, number of crimes
punishable by execution, in Jordan, has been constricted where it has been abolished for some
crimes such as producing and manufacturing drugs (ِِِArticle 10 of the law on Narcotic
Drugs and psychotropic substances) where it was commuted to life imprisonment, Article
99/3 of the Penal Code issued in 2001, provided for the respite of the penalty if the convicted
is mad. In 2006, the death penalty was abolished for the crime of assault in order to prevent
the authorities from practicing their functions derived from the constitution, punishable by
the execution under Article 138 of the Penal Code, while law No. 54 of 2001, in return,
intensified the death penalty if terrorism acts resulted in the death of a person, as being
stipulated in Article 148 of sanctions, in addition to the commutation of death penalty to life
imprisonment whenever she is pregnant.
By and large, since the establishment of the Hashemite Jordanian kingdom in 1921 under the
name of Emirate of East Jordan and up till now, crimes punishable by execution did not differ
too much and still revolve within the frame of the most dangerous crimes.
In the last few years, International Amnesty Organization criticized Jordan on the death
penalty. The Organization denounced the execution of Salem Saad Bin Sawed and Fathi
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Farahat on 11/3/2006 that were executed on the background of assassinating the American
diplomatic Pholy, and requested not to execute others convicted for criminal and terrorism
crimes.
The Organization stated in the report of 2006, that it opposes the death penalty in all
circumstances…the procedures followed in the State Security Court do not fulfill the
international criteria, and tens of the accused had exposed to torture whose confessions were
extracted by force, and 11 were executed in Jordan in 2005 and called Jordon for the entire
staying of the enforcement of the capital punishment.
The Organization said that it insists on stopping the crime and offering the murders of the
diplomatic Pholy to the judiciary; but it inquires whether the death is deterrent to crime more
effectively than other penalties. It believes also that the death penalty does not largely reduce
the sufferings of the victims' families, adding that it is irrevocable penalty.
Being irrevocable mistake, this issue may be the strongest justifications calling for the stay
and the abolition of the death penalty, in addition to the pretexts which regarded it a severe
penalty or murder crime, rather a legal murder.
Therefore, the States signed the Optional Protocol II attached to the International
Conventions on Civil and Political rights, promulgated the text on the abolition of the death
penalty in the contracted countries.
These justifications might have called Athens' Association in 427 B.C, to abolish the death
penalty issued against mature males at the rebellious Methlen city; the fact that the date of the
abolition of the death penalty is as ancient as the humanity. In addition to the incidents of 427
B.C, the Buddhist king, Amanda Ghamani, abolished the penalty in Sri Lanka 2000 years
ago.
Human movements continued and punitive philosophy changed until the appeal to abolish the
death sentence became a movement of wide concept that has its philosophers, debaters and
international and national legislations. The International Convention on Civil and Political
Rights provided for the limitation of the death penalty to the most dangerous penalties, as
Convention on the Rights of the Child prohibited the administration of the penalty, and rules
of Roma System of International Criminal Court devoid from the text of execution.
Since as we are about the International day for the opposition of the death penalty in October,
coincide with the day of the abolition of the penalty for the first time at the United States in
1786.
No wonder that speaking about the death penalty requires folders of debate, analysis,
justification and anti-justification. But in context of a survey study of small country like
Jordan, the search will be tackled in three parts; the first part is assigned to describe the deal
of the Jordanian legislator with the death penalty, crimes punishable by execution in Jordan
and the statement of the competent authority of each crime; the second part will tackle the
safeguards considered in the Jordanian Law for the administration of this penalty, and
warranties for the execution and whether these warranties are sufficient or not; in the third
part, we try to put a conceive of the size of the penalty application in Jordan within a specific
period of time.
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This study will be concluded by a conclusion clarifying the probable results and
recommendations of the project.
Such division might justify that the target of this study is a case study; then estimating it in a
survey or report study which put a concept of the study subject. Therefore we may reach our
end to amend this concept or even to be satisfied with what we have concluded.
Chapter one
Crimes punishable by death sentence in the Jordanian Law
Jordanian law provided for 25 cases punishable by capital punishment mentioned in the
Jordanian Penal Code No. 16 of 1960 and its amendments, Military Penal Law of 2006 and
Protection Law of the State Secrets and Documents No. 50 of 1971. These laws, as amended,
have repealed the abolished texts and laws and been dealt with pursuant to what is effective at
the time of preparing this study; this part will be divided in accordance with the court
competent with the issuance of the sentence.
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Generally, death penalty in Jordan is issued by four courts; the Supreme Penal Court, StateSecurity Court, Military Court, and Preliminary Penal Court, which jurisdiction is identified
as follows:Subsection I: - crimes punishable by execution within the competence of the systematic
courts.
First Part: crimes punishable by execution within the competence of the Supreme Penal
Court:
Supreme Penal Court: - a special court formed under supreme penal court law of 1986, falling
within the property of the Ministry of Justice and composed of three magistrates, and works
of prosecution thereof are assumed by a special body constituted of a prosecutor, assistants,
and attorneys general. It is a systematic Court that subjects to the Jordanian Judiciary
Council, representing the judicial authority.
This court is competent with settling crimes punishable by execution as follows:
1. Premeditated murder: a deliberate murder, according to the Jordanian law (i.e.
killing a victim) with predetermination, stipulated in Article 328/1 of Penal Code,
and defined by the Jordanian Court of Cassation as the murder that takes place
after pondering the accused for a while and planning quietly, then executed.
2.Murder committed for preparing or executing a crime of penal category, facilitating a
resolution of the instigators, perpetrators, or interveners of the felony, or keeping
the accused from the punishment stipulated in Article 328/1 of the Penal Code.
When the accused, for example, killed the porter in order to housebreak at night
and secure the escape of the burglars.
3.Murder crime committed by a descendant against the ascendant stated in Article 328/3
of penal code, when the accused kills one of his parents or grandfathers.
4.Crime of rapping a girl below 15 years old, provided for in Article 292/2 of Penal
Code.
Second requirement: - crimes punishable by execution within the competence of
Criminal Court of First Instance
This court is formed of two magistrates at the first degree courts and is competent with
looking in the following crimes:
1.
Killing the mother her child deliberately and not in subconsciously due to giving
birth, stipulated in Article 331 of Penal Code.
2.
Arson crime if resulted in the death of a human, stipulated in Article 372 of Penal
Code, whether the fire is in a building, garage, vehicle, train, etc.
Subsection II: crimes punishable by execution within the competence of the StateSecurity Court:
Preamble:-
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State-Security Court is a special court that does not enter in the formation of the systematic
courts formed under state-security court law of 1959 set up by the prime minister and
composed of three civil or military magistrates; civil magistrates are deputed by the Minister
of Justice, and military magistrates by the chief of joint-staff, which was formed many years
ago from military magistrates in addition to a civil judge. It is still existed and may transform
to a permanent court, looking in crimes touching the internal or external security, forging
money, espionage, protection of the State secrets. Crimes punishable by execution and
considered by State-Security Court are summarized as follows:
First: - Felonies fall on the external state security, detailed in Penal Code as follows:1. Article 110 of Penal Code, punishable by execution every Jordanian carried a
weapon against the State in ranks of the enemy.
2. Article 111, punishable by execution every Jordanian intrigued schemes or called
a foreign country to attack Jordan or to provide the means that may cause
aggression, or benefit from the means provided by the accused.
3. Article 112, punishable by death whoever intrigued schemes or called the enemy
to help him in defeating the state, either led to a result or not.
4. Article 113, punishable by execution whoever committed acts to hinder national
defense whether by damaging facilities, factories, ships, planes or weapons,
supplies and roads by something prepared for the use of the Jordanian military
troops, if these actions occurred at wartime or a time expected to break out war, or
if they resulted in the death of a person.
5. Article 120, punishable by execution whoever recruited soldiers in the Kingdom
to fight for the benefit of an enemy foreign country; that is the recruitment is
inside the state at first and specifically for the benefit of an enemy state.
Second: - felonies fall on the constitution
Penal Code has detailed these felonies as follows:1. Assault on the life or freedom of the king, stipulated in Article 135/1.
2. Assault on the life of the queen, crown prince or a guardian of the throne, or
against the freedom of any of them, stipulated in Article 2/135
3. Article 136, punishable by execution whoever works on changing the
constitution illegally; not through the state council.
4. Punishable by execution whoever undertook acts in order to raise armed
insurgence against the existing authorities under the constitution. If such action
led to armed insurgence, the instigator and all participants should be sentenced to
death.
5. Acts aiming at the break out of civil war by arming citizens, instigating them to
be armed against themselves or inciting them on fight and pillage. The perpetrator
of these acts shall be sentenced to death, as stipulated in Article 142.
6. Crimes relating to terrorism, Article 148/4 of Penal Code provided for the
execution of whoever committed terrorism act resulted in the death of a man, or
the demolish of a building, fully or partially, with the existence of a person or
more, or whether by using ex
7. Article 149 of Penal Code punishes by execution for the actions that are likely to
undermine the political rule system in the Kingdom, change the political or social
entity of the state or basic conditions of the society or detain a person as a hostage
to extort an official or special district, if any of these acts resulted in the death of
anyone.
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Third: - crimes fall on the public safety
1. Article 158 of Penal Code speaks about the armed gangs formed of three persons
or more, committing pillage and assault actions against persons and money,
robbery and murder to implement the said acts, or when they commit torment and
barbaric actions against people. These actions touch the public safety pursuant to
provisions of Article 3/7 of the State-Security Court Law.
2. Article 380 of Penal Code, punishes by execution whoever damaged, in course of
armed insurgence or sedition, communications lines of phones, telegraphs, and
broadcasting systems or making them unused, seized them by force or prevented
their reparation by force, if any of these actions resulted in the death of a human
being, and for example, the inability of a person to call the ambulance because of
the disruption of the victim's communications; resulting in a lack of regaining
consciousness and death.
Fourth: - Crimes stated in Law on Protection of State's Secrets and Documents
1. It shall be executed whoever entered a prohibited place or tried to enter in order
to get secrets or documents protected, or information of privacy character for
maintaining the safety of the kingdom, when entering or his trial to enter is for
the sake of an enemy state as being stipulated in Article 14 of Law on Protection
of State's Secrets and Documents No. 50 of 1971
2. Article 15 of Law on protection of State's Secrets and Documents provided for
the execution of whoever steals secrets, documents or information of privacy
character for protecting the state security if such stealing is for the benefit of an
enemy State. It is noted that the stealing may be from a prohibited place as being
mentioned in the paragraph precedent or from any other place, or by any mean.
3. This paragraph pertains to reporting or revealing information or secrets he has
acquainted because of his ex officio whether in the course or after the end of his
term, and revealed them to an enemy state. The death penalty, pursuant to the
provisions of Article 16/b, consists of Law on the Protection of State's Secrets
and Documents.
Subsection III: crimes punishable by execution and enter in the competence of Military
Courts
Preamble:The Military Court was formed under the law on forming military courts of 2006, and by
decision of the chief of joint-staff. There is also a permanent Military Court in Oman, all
magistrates of the military courts are members of the Public Prosecution, which is competent
with trying crimes punishable by execution as follows:First: - All crimes aforementioned and committed by officers, armed troops soldiers or those
charged with serving the flag "compulsory recruitment" and civil employees at the armed
troops.
Second: - Crimes prescribed in the Military Penal Code of 2006 whether committed by a
military or a civil as follows:1. Crime of provoking rebellion in the military forces or in allied state forces,
joining in an existing rebellion in these forces or conspiring to cause such a
rebellion and trying to convince a person of these troops to join a rebellion,
stipulated in Article 10/a of the Military Penal Code.
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2.
Infringement of military orders or declining to struggle while confronting an
enemy or rebels, which caused serious damage, as in the text of Article 10/d of
the same law.
3. Article 36 of the same law provided for the execution of whoever inflicts
violence actions against an injured or ill military for depriving him from his
possessions, which violence is likely to increase the misery of the soldier.
4. Article 37/a of the same law stipulated the execution of whoever submitted an
enemy a location, vehicle, military mechanism, fortress, police station or site he
is charged to guard.
5. Article 37/b stipulated the execution of whoever used any mean to force others
to leave a location or mechanism to the enemy.
6. Article 37/c stipulated the execution of whoever threw down his weapon
disgracefully before an enemy or rebels.
7. Article 37/d of the same law stipulated the execution of whoever provided the
enemy with weapons and ammunitions or supplies.
8. Article 37/e punishes by execution whoever helps an enemy to achieve his
objectives.
9. Article 37/f punishes by execution whoever exposed the success of military
operations of armed forces or troops of allied state to danger.
10. War crimes, whether committed by a civilian or a military, according to Article
9/g of the formation of Military Courts Law.
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Chapter II
Safeguards of the death penalty and the extent of their adequacy
Whereas: Speaking about the safeguards following the death penalty requires us to divide this chapter
into safeguards in the course of investigation, during trial with considering the nature of the
competent court at each time and after the sentence and before the execution; providing that
the adequacy of these safeguards shall be examined, when necessary.
Subsection I: - safeguards in the stage of investigation
Investigation in crimes punishable by execution is carried out at many forms in the Jordanian
law which differs according to the court trying the lawsuit following the investigation made
by the Public Prosecution and the Public Allegation, which differs from a competent court to
another; there is the Public Prosecution duly qualified with the ordinary systematic courts
"criminal courts of first instance", the Public Prosecution at the highest criminal courts, the
Public Prosecution at State-Security Court, and Military Prosecution at Court-Martial.
There are common rules of investigation at all these circles; however privacy appears from
time to time. Generally, the investigation before the Public Prosecution and Public Allegation
at the systematic courts and the highest criminal court is identical and carried out in
accordance with code of criminal procedure of 1961, as amended. Consequently, three
subsections will be executed; the first tackles investigation safeguards before the systematic
courts and the highest criminal court, the second before the State-Security Court and the third
before the Court-Martial.
First Part: - investigation safeguards before the Criminal Court of First Instance and
the Highest Criminal Court
Attorney general at the systematic courts shall practice investigation in crimes punishable by
execution, falling within the competence of the Criminal Court of First Instance, and practice
his competences under the authority of the prosecutor general, while the attorney general of
the Highest Criminal Court shall perform investigation in crimes entering in the competence
of this court and punishable with execution and practice his power within the Public
Prosecution at criminal high court. Both of courts shall apply the code of criminal procedure
with differences pertaining to the period of investigation, the issuance of indictment
resolutions and case state at the court. These warranties could be tackled as follow:1. Concluding the text of Article 48/1 of the Code of Criminal Procedure that it is
impermissible to interrogate the accused by justice officers, who are the police and
whoever enters in their definition. This is not absolutely applied as it is impermissible
for lawyers to observe the procedures of the police who usually conduct investigation.
2. Stipulating Article 63/1 that the accused has the right not to answer the crime indicted
during the investigation except with the attendance of a lawyer, and the general
persecutor shall necessarily warn the accused not to answer. However, the attendance of
a lawyer is not mandatory but optional to the accused, and the prosecutor general may
investigate the accused away from the lawyer in case the lawyer did not attend within
24 hours, or when he is hastening to conduct investigation when necessary, stipulated in
Articles 63/2 and 64/3 of the same law. This procedure does not accept challenge in all
cases, as the lawyer is not allowed to attend the sittings of hearing witnesses during the
investigation, and he could not speak except under the permission of the investigator
"prosecutor general" who may not permit him to say a word and the lawyer is entitled to
attend and offer a memorandum of his remarks. Noticing during the investigation that
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the accused may be suspended for not terminated period if the crime committed is
punishable by execution, as being understood from Article 114/3 of the code of criminal
procedure and the accused may not be released for a bill, Article 123/1 of the same law,
and suspension for crimes punishable by execution pursuant to provisions of article
134/1.
3. Subjecting all measures and procedures of the attorney general to the supervision of the
prosecutor general, and the charge is examined on two stages before the attorney
general, then the prosecutor general.
Second Part: - investigation safeguards before the State-Security Court
As aforementioned, this court is governed by a special law thereof; the origin is that the
investigation shall be carried out in cases entering in the competence of these courts in
accordance with Code of Criminal Procedure, however competences of investigation shall be
practiced by general attorneys and a military attorney general as stipulated in Article 7/1 of
the court law.
The origin is that individuals shall enjoy the same investigation safeguards stipulated in code
of criminal procedure, which are insufficient. However, the Law of State-Security Court
pointed out that it provides investigation and interrogation competences to the justice officers
as they are allowed to retain the accused for seven days before his referee to the attorney
general of the court. This public investigation and the military intelligence is regarded the law
a part of the police force.
Third Part: investigation safeguards of crimes punishable by execution and entering in
the competence of Court-Martial
Investigation at the Court-Martial is carried out by the Military public prosecution and the
military general attorneys who practice their competences under a special law called Military
Code of Criminal Procedure, as understood from the text of Article 11 of the Law of CourtMartial formation.
Learning from text of Article 20 of the Military Code of Criminal Procedure that provisions
of Code of Criminal Procedure shall be applied except as may be provided for in this law;
thus the accused has the right to authorize a lawyer in the stage of investigation, the matter
that does not always happen.
Generally, the applicable laws do not provide express privacy in the stage of investigating
crimes punishable with execution or clarify special safeguards of the accused in these crimes;
laws are rather stricter as the release of the accused for crime punishable by execution on bail
is prohibited.
Generally, Jordanian law focuses on both the right of the State and of the society more than
the right of the accused of these crimes.
Subsection II: special safeguards of the death penalty during trial
As we have divided subjects according to the competent court, we will divide this subsection
on the same method but on four requirements, each of which is related to a special court.
Before tackling the privacy of each court, we will mention a common issue on trials carried
out before the Jordanian courts, where the accused for crime punishable by execution shall be
65
represented by a lawyer. In cases where the accused is unable to authorize a lawyer, a lawyer
is appointed for him. However, this point is mingled with a practical problem represents in
the lack of the appointed lawyers, who are always inexperienced, to experience in these
issues or his unconcern much with the case as the fees paid to him are too little to the fees
paid to a lawyer appointed in such cases.
First Part: special safeguards during trials for crimes punishable by execution
1.The fixed legal rules of the systematic judiciary see that provisions of the penal articles
rely on determination and certainty and not on suspicion and guessing, as suspicion is
interpreted for the benefit of the accused that is innocent until he is proved guilty, and the
valid law for him had better to be applied. Therefore the issue of existing provisions on
the same law that seem more valid than others to the accused as being illustrated later of
this study.
2.Article 150 of code of criminal procedures does not provide the arrest made by the police
officer a power by confirmation in criminal issues.
3.Husband, ascendants and descendants of the accused are entitled to refrain from testifying
against him.
4.Law does not pay considerable attention to the confession made through the police
officers, and the public prosecution must prove that confession is occurred without
compulsion.
5.The legal origin is that the court shall acknowledge only the data brought and discussed
by the litigants before it, however it allows the court the law of excluding the accused and
inquiring the witnesses separately, and then informing the accused what is happening in
the exclusion.
6.The accused shall not be prosecuted before a court in a crime unless an indictment
resolution is issued by the prosecutor general, and the accused shall be notified by the
accusation regulations enough time before the trial prosecution, as well all the conviction
evidences.
7.Execution Sentences issued by these courts shall be appealed and tried by Court of
Appeal.
8.Death sentences are distinguished by force of law and their supervision is secured by the
sentences given by these courts, thus it observes the application and explanation or
interpretation of law, and the validity of procedures.
9.Public proceeding shall be prescribed after ten years of committing the crime.
10. Death penalty shall be substituted by life imprisonment to the pregnant during trial.
Second Part: safeguards of trial before the Highest Criminal Court:
1. Principles of prosecution before this court are the same followed at the First Degree
Criminal Courts according to the code of criminal procedures, where privacy
demonstrates its quick measures on one hand, its specialization and its degree on another
hand, as it is equivalent to the Court of Appeal.
2. Provisions of this court are distinguished by the force of law, if issued by conviction,
and the Court of Cassation is a subject court, in this case, whose supervision exceeds the
supervision and interpretation of the applicable law, and it also tries the evidence, data
and all circumstances and incidents of the case. Despite the advantages of these courts to
the criminal courts, the lawsuits trial entering in the competence of this court carried out
on two stages, while lawsuits in the competence of the First Degree Criminal Court,
which is of less degree than the Highest Criminal Court, carried out on three stages; two
stages of subject court and a stage of law court.
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Before concluding such requirement, we would like to indicate that the code of criminal
procedure contains texts that are likely to neglect the necessary safeguards during the trial of
those who are judged for crimes punishable by execution. As we have aforementioned that
neither the accused nor his lawyer is allowed to attend the hearing of witnesses before the
attorney general, and the court is entitled to keep the accused away and meet the witnesses
separately to clear up some matters. If we know that a testimony of a witness who has
previously testified before the attorney general may be adopted, apart from the defense and
the accused, and then traveled abroad, died or lost, promoting the principle stating that the
court shall apply the evidences recited before it and discussed by the litigants. All these texts
are stated in one law that is the code of criminal procedure, and the accused shall not hold on
to the fundamental law as we are not before two laws but a law of two texts.
Third Part: safeguards relating to the death penalty in trials before the State-Security
Court
1.This court is a semi-military as to the formation of their judges, Public Prosecution and
civil courts. The obvious safeguard may be the lawyers' standing and the application of
the code of criminal procedure, including safeguards as aforementioned.
2.Death sentences issued by this court shall be challenged by a sentence through the court
of cassation, thus it is a subject court entitled to acquit or convict and ratify the details.
3.The department that always investigates the cases transferred to this court by its attorney
general is the Public Intelligence as a part of the judiciary police. We frequently hear
complaints of the investigated that they have exposed to torment. Some criticize the court
for admitting the confessions taken by the judiciary police though the law constrains the
admission of these confessions.
Fourth Part: safeguards relating to the death penalty in trials before the Court-Martial
1. As we have aforementioned, a lawyer is obliged to present with the accused of a
crime punishable by execution.
2. Decisions issued by this court shall accept challenge before the Military Court of
Appeal.
3. Pursuant to Article 20 of the military code of criminal procedure, the code of
criminal procedure shall be applied except as may be provided for in this law, thus
death sentences issued by these courts shall be challenged.
Subsection III: - safeguards relating to the death penalty following the issuance of the
sentence till the execution
Releasing from the fact that the death sentence is final, used up means of challenge, at first,
and waiting for execution, the death sentence in Jordan is executed by hanging, and no
special text points out the way of executing the army-soldiers. Speaking about the safeguards
that may preclude the execution of this sentence can be summarized as follow:1. The sentenced to death shall not be executed in religious or official events and
festivals.
2. NO death sentence shall be executed only after the approval of the highness of the
king who possesses special pardon.
3. The decree of execution shall be endorsed by the minister of justice and prime
ministry, and the cabinet has the right to commute the penalty.
4. For the army-soldiers, chief of the joint staff has the right to substitute or exempt
the penalty.
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5. Penalty of the pregnant shall be commuted from execution to penal servitude for
life.
6. No minor is executed, but is punishable by sentence relating to juveniles.
7. It is usual to prolong the period between the sentence and the implementation in
cases liable to gain pardon for the forgiveness of the aggrieved party such as the
relatives of the murdered, for instance; as that is likely to commute the penalty.
8. No death sentences have been executed for political crimes in Jordan for the
disapproval of the king.
Regarding these safeguards and before moving into the next chapter, we would like to point
out that the most important safeguard in Jordan concerning the death penalty, especially
during the trial, is the Jordanian Court of Cassation, which was always the strict observer
over courts and investigates all possible incidents to reveal the truth, and elaborated on the
interpretation of urgent reasons and remitting the penalty such as acute anger, eligible defense
and unconscious behavior.
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Chapter III:
Death sentences in Jordan
(Implemented and unimplemented)
Whereas:
The fact is that the civil society organizations in Jordan lack statistical studies on this subject
because of the recent establishment of the State less than a hundred years ago, the intensity of
work in the civil society and the lack of judicial indexed archive or even available national
archive for the researchers as we desire.
However, a certain perception about the size of the death sentences in Jordan could be laid
down for a few years, as well as the implemented and unimplemented.
Returning to the available sources, we found that the death sentences in Jordan were
increasing progressively during the last ten years, and increase whenever the region passed
exceptional circumstances. Therefore, we have arrived at the approximated figures as follow:
1- Death sentences issued form 1921-1964 were not exceeding three sentences per
year, some of which may be pardoned due to the recent establishment of the State
and the lack of the government to win support from one hand, and the presence of
tribunal customs representing in taking revenge and reconciliation from the other
hand. Yet, these figures did not include crimes of executing and killing citizens
committed by the English occupation.
2- In 1946-1953, figures were still in this range but with appearing new legislations
relating to the resistance of communism and prohibited parties…etc, and the
emergence of new provisions that punish for the affiliation to ineligible
organizations.
3- In 1953-1960, death sentences increased at the time when countries witnessed
disturbed political circumstances, among of them were the execution of those who
led coup. The sentences executed at that period ranged among 15-20 in a year,
however the largest proportion of them were not implemented, and subjected to the
orders of general and special amnesty.
4- In 1960-1969, the rate of death sentences was stable, including the provisions of
murder and rape crimes and other criminal offences. The average of sentences did
not exceed ten sentences per year, and more than half of them did not be executed.
5- In 1970, more than two hundreds death sentences were issued against the affiliated
to the Palestinian resistance factions or against individuals and army officers who
violated orders. Few of these sentences were executed and most of the sentenced
were pardoned in the said year.
6- In 1971-1994, the pace of sentences issued by execution were increasing relative to
the increase number of population, and the rate of the death sentences reached to 10
sentences in these years, and the executed were 5 sentences.
7- In 1994-1999, the rate of death sentences was 20 per year, while the execution was 12
cases. Meanwhile, the death sentences were made against crimes entering in the
competence of the State-Security Court where many convicted were executed for
committing or planning to violence actions against Americans or Jewish.
8In 2000-2006, 51 death sentences were executed while the number of the sentenced
to death, in these years, were 80. The year 2002 is the most years when executions
amounted to 12 cases while 2006 is the most years as to the number of death
sentences; whereas there were 23 judgments in presence and 17 judgments by default.
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Conclusion:This study reached at many conclusions, the most important are
1. Most crimes punishable by execution are of the competence of special Para-Military
Court.
2. Safeguards of trial and investigation on crimes punishable by execution are
insufficient, and there are worries about trials made relying on confessions taken by
force and violence.
3. There are unified legal rules governing trials on crimes punishable by execution,
however the contradiction of texts with each other may cause losing some safeguards
in order to attain justice trial.
4. Proportion of the execution of death sentences has risen since 2000.
5. There is no separation between the Public Prosecution and the Jurisdiction, where
movements between the judiciary and the Public Prosecution are carried out, the
matter that affects the judge's consideration to the Penal Code.
6. The accused of a crime punishable by execution may be treated guilty before his
conviction because of the severity of law in the subject of respite and not releasing
him on bail.
7. No persons in Jordon were executed for their political affiliation. Whenever an
execution is, the accused would get pardon.
8. The express severity in combating terrorism during the last years, and widening the
conception of terrorism did not lead to the decrease of crimes numbers committed
under this name.
9. Jordanian Court of Cassation is the strongest safeguard to achieve justice trial as long
as their judges authorize law to their conscious and honor.
10. Numbers of crimes punishable by execution are relatively large.
11. Death sentences issued against persons who did not have criminal intention to
commit murder, like the execution of whoever caused the death of a man following a
deliberate arson. Accordingly, the same case repeated the by intensifying the penalty
if the act caused the death of a man without providing the intention for the death of a
man.
12. Existence of the Military Court and the State-Security Court cause embarrassment
and criticism for Jordan since as the rightful organizations regarded them wasteful of
the international criteria for justice trial.
Consequently, this study concludes the following recommendations:
1. Abolishing the Military Courts and State-Security Court, in order to trail all the
convicted before Ordinary Courts.
2. Amending texts of the code of criminal procedure; in order that they did not allow the
accreditation of any proof not discussed by the litigants before the court.
3. Separating the judiciary to the Public Prosecution.
4. Decreasing the work with death penalty by abolishing it for the unintentional crimes
and the tighten circumstances.
5. Abolishing the law of military sanctions and amending the articles of penal code to
include both laws along with abolishing the text relating to the execution of whoever
committed an act that is likely to waste the victory except as may the action be
intentional.
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6. Abolishing the death penalty provided for in the law of protecting secrets and
documents of the state for who entered or tries to enter prohibited place to get secrets
and information of privacy character so long as he did not already get them.
7. Proceeding plan and method for decreasing the implementation of the death penalty
along with spreading awareness of the right to life and preserving it among people.
8. Improving political and economic situations that led to the increase of crime’s
percentage.
9. Encouraging relatives of the victim to reconcile forgive and accept the wergild (blood
money) which is likely to reduce the number of executed sentences.
10. Treating perversion of juveniles and little criminals before turning into murders.
11. Making necessary amendments to give the lawyer principle role to defend his client
before the judiciary power and circles of attorneys general.
12. Specifying maximum limit for those who should be executed.
13. Establishing governmental and nongovernmental associations and organizations for
assisting and rehabilitating relatives of the executed, as this penalty extends to the
family of the condemned.
14. Investigating seriously in case of claiming the accused their subjecting to torment.
15. Activating the text regarding the ineligibility of investigating the accused by the
judiciary police.
16. Starting seriously to apply the alternative penalties and carrying out the necessary
studies for such trend.
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Death Penalty between Application and Abolition
The State of Kuwait
Prepared and compiled by
Lawyer Prof. / Mubarak Saadoun Al-Motawe
Vice president of the Federation of NGOs in the Islamic World and
Secretary of the Islamic Committee of human rights
Introduction for the meeting of the Arab Penal Reform Organization
in Sharm El-Sheikh 8-11/11/2007
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Death Penalty between application and abolition
Capital punishment, the so called death penalty or the major punishment is one of the oldest
penalties in history, which was introduced in the ancient societies to avenge the murderer by
shedding his blood to satisfy the murdered family, administer justice advocated by the heaven
and exclude persons who commit certain religious or moral crimes in the society in order to
get rid of their evils and sins.
The ancient legislations resolved to impose the death penalty on certain crimes such as
murder, adultery, rape and witchcraft. However, some of these legislations expand in the
application of the death penalty for several crimes such as bribery of staff, giving short
measure, false statement on the financial resources (old Egyptian legislation), major thefts,
false communication on murder crime, perjury in the murder crime, evading military service
(Code of Hammurabi), homosexuality and lying with an animal, idol worship, apostasy,
scorning the Lord and working on Saturday (Jewish law).
Europe nations had applied the death penalty on a large scale since the ancient times and to
the end of the 18th century, as it was a defense for the King, society and religion and reaction
to tens of crimes against persons, property or morality. As always it was applied in extremely
harsh methods such as burning, amputation, drowning and crucifixion, shedding the skin
alive, hanging, transfixing and seething in oil or water.
Death penalty to Arabs before Islam and in Islamic law (Sharia)
The death penalty was not widely applied to Arabs before Islam, contrary to what was
prevailed to the neighboring nations, relying in all their sentences at that stage on custom.
Among of the prevailing customs of the time are the father's right to kill his male children
and bury his daughters alive, and the right of the avenger of blood to revenge the murderer of
a person whom he is legally responsible for. If he had been able to achieve this end,
otherwise the judicious men would have intervened to solve the problems by handing over
the murder to punish him or to pay the wergild. Adultery crime was also punishable by
execution fearing of the mix of lineages and pushing shame.
On the emergence of Islam, the death sentence was applied moderately as the penalty was
imposed for the most serious crimes prescribed expressly in the Holy Quran and Sunna; that
are the limits crimes such as adultery, highway robbery, apostasy, and retaliation crimes like
deliberate murder. Moreover, the Islamic law does not prevent the ruler through the text to
impose the death penalty as a discretionary disciplinary punishment in dangerous crimes for
necessary action. The moderateness of Islam, on the other hand, appears in the way of the
execution of the death penalty. Islam has abolished the torture of the sentenced before the
execution, burying him alive, mutilating his corpse before or after death, burning or
amputating an organ of his body, killing him brutally or inhumanly. The execution was
carried out by beheading the sentenced by sword and cutting off his head.
Moderation in the application and execution of the death penalty
The two Islamic and Christian religions had significant impact on driving the world
legislations towards moderation in the application and execution of the death penalty. The
moderation movement emerged in Europe in the 18th century, and endorsed by a number of
senior scholars, such as the Italian legist, Beccaria, in his book «Crimes and Penalties»
(1764), John Howard in his book «State of Prisons» (1775). For the views supported by the
principles of the French revolution, the legislations applied the death sentence for only the
most serious crimes, ordered courts to be limited in its application and urged the authority,
which has the right of pardon or commutation, to replace the penalty by life imprisonment,
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whenever humanitarian reasons called for. Such moderation included also the execution
which is said to be compassionate such as cutting head by guillotine, hanging, electric shock,
or so alike. The methods that preceded, accompanied or followed the death penalty were
abolished.
The trend in favor of the death penalty
The death sentence has always advocators through the ages. The penalty which was
enthusiastically defended by most philosophers of the old and medieval ages such as Aristotle
and Thomas Aquinas, and supported by a large number of prominent thinkers in the modern
era such as Luc, Kent, Lombrozo, Gharofallo, Montesquieu, Rousseau, and Voltaire. It was
also praised by the senior professors of law in the 20th century such as Gharry, Gharzón,
Donedio and Faber. The arguments of the supporters of the death penalty are:
- Fair penalty, where injury equals penalty. The criminal, who murders a soul
intentionally, betrays his country or commits very dangerous crimes against society or
individuals, must atone for his guilt by blood and pay his life for the great evil.
- Necessary penalty, to rescue the community from dangerous people whose souls are full
of sins and vices, and there is no hope in their reformation or recovery.
- Deterrent penalty, that scared whoever tempted to commit a crime punishable by death,
hence he abstains from commission.
- Relief penalty, as it transmits reassurance in the hearts of citizens as long as the
legislation provides for its existence. On the other hand, its abolition after being formed
and secured by the public opinion would raise their anxiety and fear and lead to social
instability.
- Positive and inevitable penalty, because the prison penalty often lead to escape, pardon
or stay of execution (conditional release).
- Jus penalty, and better than a sentence of life imprisonment, replaced to, as the latter is a
fatal physical and psychological torture exceeds the torture and bitterness of death. There
is no benefit so long as the prisoner will spend his entire life in prison, adding that it is
costly and its exorbitant expenses charged by the state do not have a desirable achievable
aim
Abolitionism Movement of the Death Penalty
Abolitionism outlook finds its roots in the Roman law, Christian thought, and in part of the European
philosophy in modern times. Yet, this view neither established nor ripped its fruits only in the second
half of the nineteenth century, when the abolitionism movement started to resonate at some States;
Greece abolished it in (1862), Venezuela (1863), Roman (1864), Portugal (1867), Holland ( 1870),
and some Swiss provinces (1870, 1880), Brazil (1889), Italy (1890) and Ecuador (1897). Then the
movement expanded to include a large number of countries; among of them Norway (1905),
Colombia (1910), Austria (1919), Australia (1922), Sweden (1921), Argentina (1922), Denmark
(1930), Mexico (1931) , Switzerland (1942), Italy (which reapplied the penalty and abolished it
again in 1944), German (1949), Fenland (1949), Austria (1950) after it had been abolished in 1934,
Canada (1967), England (1965), Spain (1978), France (1981), and the United States has abolished it
in 15 states, including Michigan (1847), Colorado (1897), Minnesota (1911), Alaska (1957) and
Hawaii (1957).
In 1959, The General Assembly of the United Nations charged the Economic and Social Council to
study the death penalty and the idea of abolition. Thus, this study is made by the council with the
assistance of senior significant scientific figures and tended to abolish it without adopting final
determination. In 1977, Amnesty International Organization, held in Stockholm, issued a statement
in which it appealed the world to abolish the death penalty, because it is cruel, humiliated and
inhuman penalty and violates the right to life. In 1980, the European Parliament called the States of
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Europe Council to abolish this penalty to respect human dignity and save human life. The Seventh
International Conference of the International Penal Law, held in Milano in 1985 reached a resolution
demanding the States that still apply the death penalty to abolish it. The said decision had been
presented to the United Nations General Assembly, which approved it in its session held on
29/10/1985.
The advocators for abolition relied in their position on the following arguments:
Life is a gift granted by Allah Who bestows and deprives individual, and neither the State nor other
creatures have the right to claim for such power.
The death penalty is incompatible with mental logic, as it was intended and systematic murder,
executed by the state in cold blood and calm nerves, unlike the case of the criminal who commits a
crime under the influence of reasons which science has not reached yet to realize their findings.
Death is unfair, because the judge, whatever he got of understanding and sensitivity, could not
measure the degree of error to estimate whether it equals the life of the perpetrator or not.
Death is a backward penalty, still exists as remnants of revenge and are incompatible with the
philosophy of modern punishment, which is to reform and rehabilitate the offender socially,
whatever his crime and the reasons that pushed him to that.
Death is a penalty where judicial mistake can not be avoidable or reform its consequences in case
new evidences emerged after the execution demonstrating the innocence of the convict.
Death is uncertain, because it is rarely implemented as witnesses are reluctant to testify if they knew
that the punishment is death, and judges often tend to give acquittal to avert error and escape from
the brunt of conscience. The President of State uses his right to pardon, in most cases, and
commutes the penalty to life imprisonment to avoid the harshness of this penalty and get rid of its
disadvantages.
Death is not useful, not proved till now that it deterred or turned the criminals from committing
serious crimes, or as a mean of crime prevention. It has been proved in all States which abolished
the penalty then reapplied again like Austria in 1934, or countries which abolished it on way of trial
like England in 1965, or even countries which aggravated in application as in some United States of
America that crimes punishable by death increased progressively. In a study conducted in England
indicating that among 170 of 250 people were executed at the early of 20th century, witnessed the
implementation of the death penalty once or twice in their lives. Although the pickpocket crime was
punishable by death, several robbery incidents occurred among the crowded public during watching
the execution of this penalty. The death penalty has been applied since immemorial time, yet crimes
punishable by death increase day after day.
Death penalty in the Arab States
All Arab legislations adopt the death penalty but very moderately; they provide for this penalty for
certain serious crimes. If it is already decided to be implemented, it is surrounded by several guarantees.
In fact the death penalty is rarely implemented in some Arab countries, and implemented in others for a
limited number ranging between 5-10 cases annually.
The Arab countries agree unanimously on the imposition of the death penalty in the following offenses:
treason, premeditated murder, murder accompanied a felony to facilitate, prepare or cancel of the crime,
and the killing of ascendants and descendants. Some Arab legislations expanded in the imposition of
the death penalty for certain crimes, such as: murder by poisoning (Iraq, Kuwait, Egypt and Morocco),
beat or injury a child in a violence way causing his death (Morocco), aggravated kidnapping (Kuwait),
abduction of a minor if it lead to death (Morocco), false testimony that led to the death of the accused
(Iraq, Morocco, Egypt and Sudan), married adultery, apostasy highway robbery, and prostitute (Saudi
Arabia), rape sentencing (Saudi Arabia and Kuwait), drug trafficking (Iraq), drug trafficking in case of
repetition (Syria, Egypt), and the smuggle of drugs into the State (Saudi Arabia).
The death penalty has not been carried out in Arab countries only under precise legal procedures in
order to ensure the rights of the convicted. In Syria, for example, the Public Prosecutions is obliged to
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bring the death penalty sentencing before the Court of Cassation, even the sentenced did introduce a
challenge, and if the court ratified the sentence it would be referred to the Amnesty International, which
expresses its view and files a report to the President of the Republic. If the President approves the
penalty, a decree is issued. The President may cancel and commute the penalty by other penalties such
as life hard labor, or life imprisonment, by the issuance of a decree for this purpose.
The death penalty is implemented in most Arab countries by hanging for the civilians in prisons or in
any other place determined by the decree of the sentencing, and firing squad for the militaries. The
execution is attended by a number of people such as the President of the court, the representative of the
prosecution, a clergyman and the forensic doctor. The sentenced is asked whether he would like to say
something before his death. After the execution the body is buried by the Authority at their own
expense unless handing it over to his family. The execution is prohibited on Fridays, Sundays, holidays
and national or religious days, and respite to the pregnant till giving birth. In some Arab countries such
as Kuwait, death penalty is substituted by life imprisonment after giving the pregnant birth.
Finally, whatever is said in favor or against capital punishment, its imposition recede! This penalty has
been abolished in many countries of the world, and the States that still maintain it, including the Arab
countries, are rarely applying it and stating it in their legislation for threat and application in the
exceptional cases when necessary. Moreover, the Arabic and world attitude believe that there is no
criminal responsible for his crime absolutely and the modern treatments are largely sufficient to
rehabilitate the offender and keep him off the crime.
In 2003, at least 1146 were executed in 28 countries, and 2756 sentenced to death in 63 countries.
These figures include only cases acknowledged by the Amnesty International. Undoubtedly, the real
figures are higher than that. Just as the previous years, vast majority of the death penalty all over the
world had been executed in few specific countries. In 2003, 84% of the death sentences executed took
place in China, Iran, U.S. and Vietnam.
Calling for the abolition of the death penalty
When the Amnesty International Organization called for holding an international conference on the
death penalty in Stockholm, Sweden 26 years ago, the number of countries abolishing the death penalty
was not more than 16, and has reached today to 75 while the pushing force is going on to abolish death
throughout the world. However, death is still applied and even expanded in some countries, especially
for felonies and terrorism. If some governments call for the abolition of the penalty worldwide, others
opposed it strongly.
Such discrepancy was clear after the two incidents of 2003. On April 24, the "Commission on Human
Rights" of the United Nations issued a resolution calling all States still applying the death penalty to stay
the execution practically, adding that the abolition "contributes steadily to sustain the human dignity and
develop human rights." Having 75 States participated in the presentation of this resolution, in addition to
other seven States which presented similar resolution in 2002.
On the same day, a group of countries that objected to the resolution issued and publicized a joint
statement to members of "Human Rights Commission", stating that "the need for the abolition of the
death penalty does not enjoy consensus agreement at the international level," and emphasizes "that the
description of the death penalty as human rights issues "requires a balance between the rights of victims
and the right of society to live in peace and security." 63 States have signed the statement, increasing
one State to the States signing a similar statement last year.
The year 2003 witnessed a number of significant developments in the campaign to abolish the death
penalty. In July, the President of the Republic of Armenia, Robert Kocharian, has eased all death
sentences which have not been implemented yet. In September, Armenia abolished the death penalty in
peacetime by endorsing Protocol No.6 attached to "European Convention on Human Rights." The
Armenian parliament has adopted, earlier in the same year, the new Penal Code which provides for the
abolition of the death penalty in peacetime; however there is a breach that allows the application of this
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penalty in an issue that is still considered before courts at that time.
Groups of prisoners enjoyed the commutation of the death penalties sentencing. In January, the former
governor of the Illinois State, George Ryan, United States, decided to commute the death penalties
sentencing on 167 prisoners and pardon four prisoners after he believed that they have confessed crimes
uncommitted under torture. In February, declaring the release of 28 prisoners in Kenya, each of them
have spent his term that ranges from 15 to 20 years waiting their execution, and 195 prisoners enjoyed
the commutation of the sentencing to life imprisonment.
By the end of the year, the number of countries that have abolished the death penalty for all crimes is 77,
and another 15 countries have abolished that penalty for all crimes but for "the exceptional" such as
crimes committed in times of war. Some 25 countries did not apply the penalty in actual fact and no
death sentence was executed in the previous ten years or for a longer period because these countries
have a fixed policy or custom not to implement the death sentences. However, many other countries and
provinces, 78 ones still retain the death penalty; even most of them did not issue or execute death
sentences during 2003.
In the first July, Protocol No. 13 attached to "European Convention on Human Rights" entered into
force, after having been ratified by the minimum required, that is 15 countries. Protocol No. 13 is
regarded the first international treaty providing for the abolition of the death penalty in all circumstance
and not allowing to any exceptions. By the end of 2003, a number of States, 20 of the Member States out
of 45 of the Europe Council had endorsed the Protocol. With regard to the ratification of the
International Treaties on the abolition of death penalty, about 43 countries have ratified protocol No.6
attached to "European Convention on Human Rights," and 51 States on the Optional Protocol II attached
to "the International Covenant on Civil and Political Rights", while eight countries have ratified the
Protocol of "American Convention on Human Rights" aimed at the abolition of the death penalty, at the
end of 2003.
A celebration of the World Day against the Death Penalty was held on 10 October, and the celebration
manifestations varied locally in more than 60 countries, in addition to offering appeals via the Internet to
the highest authorities in all countries that still apply this penalty to "ensure the stay of execution at once
and abolish the death penalty for all crimes." The celebration was organized by the "World Coalition
against the Death Penalty," established in 2002 and includes a number of local and international human
rights organizations, including Amnesty International Organization, Bar association, labor unions and
local and regional governments.
In a subsequent celebration, lamps were lit in public buildings in over 100 cities around the world on
November 30, in frame of an initiative called "Cities calls for life- against death penalty." An Italian
Organization called "Santo Guido" has undertaken the organization of this event in collaboration with
other organizations, including branches of Amnesty International.
At the end of the fourth summit of Nobel laureates in Rome, the conferees issued a final statement on
November 30 says: "The winners of the Nobel Prize agreed after a private session that the death penalty
is extremely harsh and irregular punishment and it should be abolished as no conscious accepts to apply
it, especially on children."
The Amnesty International opposes the death penalty as a violation of the fundamental human rights,
namely the right to life, and the right not to be subjected to cruel, inhuman or humiliated punishment.
The organization quotes also other aspects this penalty in favor of its abolition, such as the brutal
impact, the latent danger of executing innocents, and the lack of firm evidence on the unique ability to
deter criminals.
In addition to these considerations, the strongest arguments against the death penalty is that it is
injustice, including repeated phenomena of the penalty as to principle and application arbitrary; its
imposition following unfair trials, and in cases involving the use of torture and discrimination in its use
against members of racial and ethnic groups, as well as against the poor and socially marginalized
groups and others.
The organization works to highlight the inequities mentioned in the course of their efforts against the
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death penalty in the coming years.
The International law prohibits the execution of criminal children, the persons convicted of crimes
committed when they were under the age of eighteen. However, few numbers of countries continue to
issue and implement the death penalty sentencing for children offenders. The Amnesty International will
make special effort in the coming years to stay the execution of the death penalty for children offenders
throughout the world.
The death penalty has almost disappeared from some areas of the world, such as Latin America, Europe
and the Pacific, suspended in some other regions, and the abolition in the near future seemed a real
possibility. In October, Amnesty International launched a campaign to abolish the death penalty in all
countries of West Africa, where it has not been implemented in the past decade except in four countries
out of 16. The Organization calls on the West African countries to stay the execution of the death
penalty and to provide for its abolition legally whether it did so or not yet.
Official Opinion of Kuwaiti State
Ministry of Justice: death is fair and deterrent penalty, and its abolition threats the safe
communities.
The study of the International Relation Committee at the Ministry of Justice concluded that
the death penalty, even characterized by force and strict, is far from being avenged on the
offender by the legislator. The death is fair and deterrent penalty, and the claim on abolition
represents threat to the safe communities. Therefore, the international organizations should
not apply it excessively but incite the countries applying it to amend their legislations, and
respect the religious privacies of these communities.
The study published in «public opinion» confirmed that the rules of the Islamic Law 'Sharia',
which is the religion of the State of Kuwait, characterized by nature of compassion for all,
and in the scope of punishment they are neither weak nor hesitant, but firm mercy aimed at
the protection of real interest of the individual and society.
The following is the text of the study:
First: arguments of the opponents and advocators on the death penalty:
A- Arguments of the opponents of the death penalty: of the most important arguments
invoked by the attitude advocating for the abolition of the death penalty, including in the
allegations contained in reports of the international organizations in this regard, are:
1- That error is not avoidable in this penalty; if proven after the execution that the judgment
was wrong, life can not be restored to those who died. Practically, such error may be proved
on some countries applying the death penalty.
2- The death is not useful penalty because some country that has approved it did not notice a
decrease in the proportion of murder crime.
3- The death is not deterrent penalty on the ground that communities still applying it are stage
for dangerous crimes.
4- The death penalty violates philosophical principles stating that community did not grant
the offender life to deprive him from.
5- The application of this penalty contrasts with the human right not to subject him to cruel,
inhuman, or humiliated treatment or punishment.
6 - The execution of criminal offenders will not significantly relieve the pains of the victims'
families.
7- The rich are able to select the well known lawyers to secure their defense while the poor
are incapable of. Moreover, the ethnic considerations would have a role in the issuance of
some violent provisions; therefore death is often the fate of this vulnerable group in societies.
B- Arguments of the advocators of the death penalty:
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1- This penalty is obliged by the Wise Legislator (s.w.t) Who says (In the Law of Equality
there is Life to you, o ye men of understanding; that ye may restrain yourselves) Cow (179).
2- This penalty is found to achieve the concept of justice; the murder who deprived another of
the right to life in very horrible conditions must pay his life for the sin he committed. The
death is a justice penalty because depriving the perpetrator of his life equals to the life of the
dead. In their own view, some crimes equal murder such as treason crimes because it is a
murder for the entire nation.
3- The death is a deterrent penalty scaring both who terror the community for committing
terrible crimes, and who intend to. Thus retaliation is good penalty for them.
4- The death is the only way to get the society rid of a criminal who threatens its integrity and
security. In fact, some criminals represent serious danger for all, therefore we have to impose
incisive penalty to deter them that is the death.
5- If the death penalty is abolished, it is impossible to find another alternative penalty. So the
death achieves the principle of equality and justice in the application of the punishment,
commensurate with the crime committed. Incidents have proved that the replacement to life
imprisonment is not effective as the penalty soon turned to a temporary one due to the general
amnesty and the criminal often gets benefit of the pardon laws, threatening the community
and reflecting bad impression on the administration of justice with the possibility of revenge
by the family of the dead, and so we have caused great corruption by breaking the rule and
hierarchy of murder.
6- if the offender spent his life in a solitary confinement as a punishment instead of death, he
will be more miserable than being executed, and every attempt to reform him will not benefit
him because reform aims at returning him honest and upright to the society while his hands
are still contaminated by the blood of innocents and the oppression of the victim's relatives
and oppressing innocent people with the dead.
7- The guard of the life imprisonment prisoner costs the State enormous expenses that can be
spent to reform others.
8- That penalty may atone the sin of the murderer, for the saying of the Prophet (may Allah's
mercy and peace be upon him) in the holy tradition, "he who is punished in the world is an
expiation in the hereafter).
Second: the situation of the positive laws and international conventions on the death
penalty:
A- Situation of the positive laws on the death penalty:
States of the world were divided, as to the application of the death penalty, into two groups;
the first adopts the legislations of the death penalty believing in its importance, fairness and
effectiveness adding to the inevitable religious considerations, especially for the Islamic
States, while the other has acquiesced the legislator to the pressure of the opposed opinion of
this penalty and abolished it from the national legislations. However, there are several
national legislations that have abolished this penalty then returned it later, an example of this
like what happened in Italy which terminated it in a general legislation in 1899, then
reapplied it in the legislation of 1930 because of the increasing rate of crimes. As well as the
Soviet Union that has abolished the death penalty in 1947, and then restated it in the penal
legislations in 1958.
There are many examples that some countries have abolished the death penalty then reapplied
it again even for the European countries which are committed to abolish this penalty form
their national legislations relying on the provisions of Protocol XIII of the European Charter
of Human Rights, yet the voices claiming for the application of the death penalty appeal to
governments to return to it due to increasing the commission of horrible crimes in these
countries. Among of these voices, including without limitation, claims of Swiss Freedom
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Party to provide for the death penalty for the crimes of drug trafficking, as well as the
repeated initiative of the Swiss People's Party to raise this issue at the national level, calling
for the re-application of this penalty for serious crimes.
Undoubtedly, the controversy raised about the effectiveness of the death penalty has a major
impact in so many legislations, as the abolition movement has retreated in many states under
the influence of various factors; most important at the present is growing drugs trade and the
obsession of terrorism, which threatens the security and stability of the entire international
community.
B- Situation of the International Agreements and Conventions:
Groups advocating the abolition of the death penalty advance as a plea that the most
International Charters that called for the abolition of the death penalty, which represents
strong binding for countries ratified it, and the compliance to apply their provisions is the
International Covenant on Civil and Political Rights which stipulates in Article VI, the
following:
1- The right to life is inherent of every human being, that must be protected by law, and no
one should be deprived of his life arbitrarily.
2- Countries which did not abolish the death penalty should not govern it only for the most
serious crimes in accordance with the legislation in force at the time of committing the crime
and not contrary to the provisions of the said Charter and the Convention on Genocide
prevention. This penalty may not be applied only under a final award issued by a competent
court.
3- When the deprivation of life is regarded as a genocide crime, it is intuitionally understood
that no text in this Article authorize any Party State in this Covenant to exempt itself from
any form of any obligation which is responsible for under the provisions of the Convention of
Genocide Prevention.
4- Any person sentenced to death has the right to seek special pardon and commutation of the
penalty, public or special amnesty may be granted, or the commutation of the death penalty in
all cases.
5- The death penalty may not be sentenced for crimes committed by persons under eighteen
years, as well as the pregnant women.
6- No provision in this Article legalizes the reprieve or abolition of the death penalty by any
State Party to the present Covenant.
In fact, this International Convention did not provide for the abolition of the death penalty.
After it had decided in the first clause of Article VI, that the right to life is inherent right of
every human being, it stipulated in the second clause of the same Article that (countries
which did not abolish the death penalty should not govern it only for the most serious crimes
in accordance with the legislation in force at the time of committing the crime, and that it
may not be applied only pursuant to a final award issued by a competent court.) Except for
this Convention, the scope of applying other international conventions may be limited to a
group of countries that have common interests and convergence of values and cultures. Just
as there are international conventions binding their parties to abolish the death penalty, like
the Protocol XIII supplemented the European Charter of Human Rights, which the organized
States are obliged to apply on the European group only, there are other charters calling the
signed States to apply this penalty, as provided for in Article XVIII of Cairo Declaration on
Human Rights in Islam, for example, as after it confirmed that (everyone has the right to live
safe on his soul, religion, family, honor and wealth) Article XIX of the Declaration provided
that (no crime or punishment except under the provisions of Islamic Sharia).
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Third: situation of the Islamic Sharia on the death penalty:
The Islamic penal system is not different than other modern penal systems concerning the
purposes for which specific penalties were imposed on certain criminal acts, such as
retaliation (death).
The word "retaliation" means in language the equality and justice, in terminology the equality
between crime and punishment, and in religious the equality between crime and punishment
by imposing the offender the same harm inflicted the victim; if the latter has been killed, he
should be killed.
Referring to the types of penalties in the Islamic penal system, we will find that retaliation
(death) falls under what is called the original penalties set forth by the legislator as penalty
for heinous crimes committed by the offender. It is also an estimated penalty, i.e. determined
by the legislator for limitation, and the judge must approve it on the providence of their
conditions. Retaliation is an estimated and fixed penalty in the basic sources of the Islamic
Law, as follows:
A- The Holy Quran: Allah the Almighty says in Al-Bakara “O you who believe! The law
of equality is prescribed to you in cases of murder: the free for the free, the slave for
the slave, the woman for the woman. But if any remission is made by the brother of
the slain, then grant any reasonable demand, and compensate him with handsome
gratitude. This is a concession and a mercy from Your Lord. After that whoever
exceeds the limits shall be in grave penalty."(I. 178), as well as His saying in AlMaida chapter “We ordained their in for them: life for life, eye for eye, nose for nose,
ear for ear, tooth for tooth and wounds equal for equal. But if anyone remits the
retaliation By way of charity, it is an act of atonement for himself. And if any fail to
judge by what Allah has revealed they are wrong doers.” (V. 45)
B- The Prophetic Sunna: Allah's messenger (may peace be upon him) said: The
custodian of a murdered has two choices; either to accept the ransom or to kill the
perpetrator). Moreover, retaliation as a penalty is prescribed in the previous Divine
Books, and the Islamic Sharia does not differ greatly in this noble purpose and
objectives of execution. It is a penalty that meets the rights of Allah and of the slave
together, but the right of the slave is often for the victim or his guardians to pardon the
offender, and so the punishment is abrogated by forgiveness.
Since the main objective of the Islamic penal legislation is to protect the main interests in the
community, called in Islamic jurisprudence the five necessities as follows: religion, life,
mind, money and honor, therefore severe penalties should be imposed on some acts affecting
the main interests, which revolve around the protection of individuals from assault.
The Islamic Sharia, therefore, has forbidden the aggression on life and the risk of self loss
and legalized provisions to bring interests and drive away vices because the preservation of
man's life charged to worship Allah, the Almighty, leads in turn to the preservation of
religion.
So the Islamic Sharia has arranged hereafter and mundane penalties for those who assault and
kill. Among the hereafter penalties: the texts of the Book and Sunna prescribed the
prohibition of attacking the innocent souls as of the major guilt after polytheism. Allah, the
Almighty, says: « If a man kills a believer intentionally, his recompense is Hell, to abide
therein (Forever): And the wrath and the curse of God are upon him, and a dreadful penalty
is prepared for him.'' (IV. 93)
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The Messenger (may the blessings and peace of Allah be upon him) said in the sanctity of
non- Muslims' souls of the covenanted by holding tribute, truce or safety of Muslims: «He
who killed a covenanted will not approach paradise, which access if on forty years march».
There is no doubt that when the sincere believer listens these texts, provisions and other
matters of self- keeping, he will be deterrent from killing the sanctity soul, and afraid of this
intimidating threat.
Scholars and sociologists on the means of execution: the faster is the better…the lesson is
killing not torturing the criminal.
A number of jurisprudents, sociologists and psychologists demanded to use faster methods of
execution, because the lesson is just "killing not torturing". They also believed that "beaten
the neck by sword or guillotine which separates the head from the body is better than hanging
with remaining the executed alive for moments form the moment of hanging to death."
However they considered that "the faster the execution is without harming the executed, the
better the penalty is legally, humanly, psychologically and socially," and agreed that "the
application of retaliation is a life to the nation, spreading security and decreasing crimes and
corruption, if not eliminating."
Dean of the Faculty of Sharia and Islamic Studies, Dr. Mohammad Al-Tabtibai, stated that
«scholars disagreed on the way of implementing retaliation on two opinions: the first is to
retaliate the murderer on both the character and quality of his act, the second is by separating
head by sword whatever the instrument or tools he used», pointing out that «retaliation is
legally authorized without mutilating the body or by unlawful mean, as long as applying the
religious retaliation criteria, such as its annulment in case of the avenger of blood's pardon.»
Al-Tabtibai explained that the public of Almalikiya and Ashafiya scholars and a tradition at
Alhanabila agreed unanimously that the murderer should be punished on the same character
and quality of his act», indicating that «He who killed by acute or weight tool, or shocked
should be killed on the same way; with the exception of murdering by a prohibited tool such
as fire, wine, magic, homosexuality and adultery, etc. retaliated by sword, according to
Alhanabila and Ashafiya». He added that «Alhanafya and some of Alhanabila saw that
retaliation should be by sword in the neck whatever the instrument or mean».
He explained that «legislator of the UAE Islamic Penal Code stated in Article 73 the death
penalty sentencing by hanging and the legislator of the Egyptian Islamic Penal Code in
Article 38, excluding the cases stipulated in law to be executed in another way», pointing out
that «the present Kuwaiti Penal Code stipulated in Article 58 that the murder must be on one
of the two means; by hanging or by shooting to death».
In turn, Professor of Sociology at Kuwait University, Dr. Ali Jasim Alshihab believed that
«two aspects should by taken into account in this regard; our Islamic religion which we
should build upon all our works, including the acts of the Prophet (may the blessings and
peace of Allah be upon him) and his companions, the scientific aspect and the careful study
of the essence of origin, whether increasing the tortures and pains of the guilty is the origin,
or mercy».
He said in the way of executing the guilty «views of religious and legal specialists, anatomist,
psychologists and sociologists and the quality of the implications of this», indicating that
«decision-making in what is better requires bilateral views; legally and scientifically».
He explained that «mercy is the origin of punishment for the tradition of Algamdya woman
who had confessed adultery and the Prophet (May the blessings and peace of Allah be upon
him) executed her. When a spot of her blood spoiled a companion's dress, he cursed her but
the Prophet (peace be upon him) delivered a great speech: she had repented, whose
repentance may satisfy the people of Madina city», indicating that «The origin is mercy even
if it implies torture and death of the offender, however execution is mercy and protection for
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both the society from the spread of crime, and the offender himself from the Hereafter
punishment».
He regarded that «mercy is the basis, but must be considered from other aspects already
mentioned», pointing out that «the means which provide both mercy and comfort if the best
in the death penalty sentencing». Stressing that "mercy should be by killing the sentenced as
soon as possible, and the Prophet's urging to sharpen the blade on slaughtering the sacrifice is
a clear indication on the importance that the slaughter as soon as possible», indicating that
«human sides are fundamental aspects of killing the executed».
On his part, Professor of Psychological Education, Dr. Badr Ashaiban said that «there are
many and multiple types for murdering the executed, but people can attend hanging while
other methods may be awful or difficult to attend», indicating that «hanging is safer and
calmer than other methods, supposed to be free of torturing the sentences; as in case the
hanged not died immediately it indicates that the tie is not in its proper place, as usually
expected».
Ashaibani clarified that «the world law authorized the sentenced to death another chance for
life if not died in a certain period, that is to say Allah the Almighty has acquitted him from
the penalty as he is a victim of injustice, only then the case is reinvestigated again», pointing
out that« people are disgusted of the seeing of the neck beaten by sword and the people's
attendance decrease because people do not like the sight of blood».
He added that «the first thing to be put into account is the time of the penalty, not to be far
from the commission of crime, then controlling the execution-style by selecting the quality
and place of robes», indicating that «the offender's weight plays a role in the rapidity of
death, the light must be placed a weight in his leg to facilitate his death». Ashaibani said that
«the process of hanging is abhorrent from the first moment to his death», pointing out that
«each method leading to quick retaliation is acceptable because the objective was not to
torture the offender but to terminate it by any mean».
Professor of psychology at the Faculty of Arts, Dr Noria Kharafi said that «reasons are
numerous and death is the penalty, as execution is death», noting that «humanity obligates us
to choose the fastest way to kill so as not to kill the executed twice, even the offenders
deserved to be executed hundred times for their acts, however the right is right». She pointed
out that the Prophet (peace be upon him) ordered us to treat the sacrifice kindly and to
sharpen the blade for the animal, then what about the man who is honored by Allah to other
creatures», noting that« the murdered has indeed caused the torture of a human being
adequately, yet the fastest way must be worked out».
Kharafi said that «The Holy Quran ordained to kill the murderer without demonstrating the
mean, however the Sunna has clarified that and the Prophet peace be upon him retaliated by
sword», indicating that «the required is to kill the death sentencing as fast as possible
whatsoever, whether by shot to death, beaten the neck by sword, electrifying or even by
modern ways that accelerate the loss of spirit ».
Whereas, the professor of educational psychology at Kuwait University, Dr. Awada
Alghariba affirmed that «it is necessary for the people to realize the seriousness of guilt
committed by the offender, and the sword delivers the utmost influence», indicating that
«other means of execution, such as hanging, last minutes when the neck is isolated into parts
before the soul cutoff, harming the dead very much». Adding that «the average time spent on
executing the sentenced reached to 6 minutes», pointing out that «sharp sword is quick in
cutting and killing, and carried out by specialists in murder as it is inherited from father to
son».
Alghariba pointed out that «some constitutional regimes do not use sword in the death
penalty compliance with human rights, according to their allegation while it is more merciful,
quicker and deterred», indicating that «body will be separated from the neck by a sword blow
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or by a guillotine which cut neck by a sharp instrument after tying up the sentenced, and the
public are allowed to attend».
He added that «Guillotine, which cuts the head is used by the English, French and the West in
their wars though sight is more awful than the sword and separates the head from the body;
what is the wisdom of prevention then?», Wondering «Why did the Kuwaiti legislator
legalize hanging and shooting and not legalize sword or guillotine? May be because they
separate the head from the body? ».
He explained that «the objective of the penalty is to learn people and the public, because
criminals are punished for a crime they have committed», stressing that «sword is more
convenient and merciful to the murdered; however it implies a lesson for the public to learn
and recognize the greatness of the offense».
He continued that «Islam has permitted the release of a neck for the sake of Allah or for a
payment, which is another sermon and a lesson added again to the lesson of retaliation»,
indicating that «all other execution tools are but a mean to achieve the objective of killing the
offender; but which is more merciful to the murderer and teaching to the public? » He
concluded by the words of Allah, the Almighty (In the Law of Equality there is Life to you, o
ye men of understanding; that ye may restrain yourselves).
A parliamentary proposal in Kuwait:
The court may not substitute the death penalty sentencing only for the life-imprisonment.
Draft laws to cancel all texts restrict the judge's authority to estimate the penalty of taking
and trafficking of drug.
The parliament members Ali Al Rashed, Ali Al Dakkbasi, Marzouk Al Ghanim, Hussein Al
Hariti, and Abdullah Al Rumi have presented a draft law to amend some provisions of Law
No. 74 of 1983. Following are the articles of the law:
Article I: articles 32(final paragraph), bis 32 (a), 33 (first paragraph), 37, and 48 of Act No.
73 of 1983 as amended by Act No. 13 of 1995, on the fight of drugs should be replaced by
the following articles:
First: Article 32, last paragraph: If crimes set forth in the last three items without retribution,
the imprisonment penalty should not exceed 10 years and a fine no less than five thousand
dinars and no more than ten thousand dinars.
Second: Article 32 bis (a): shall be punishable by imprisonment for not more than fifteen
years, a fine no less than five thousand dinars and no more than ten thousand Dinars whoever
proved establishing or managing a terrorist organization for committing a crime set forth in
Articles 31, 32 therein.
It shall be punishable by imprisonment for not more than fifteen years and a fine no less five
thousand dinars and no more than ten thousand dinars whoever joins or participates in the
activities of the organization, and knows well the purpose of its establishment.
Third: Article (33), first paragraph: shall be punishable by imprisonment for a period not
exceeding ten years and a fine no less than five thousand Dinars and no more than ten
thousand Dinars whoever brings, uses, purchases, produces, extracts, separates or
manufactures narcotic substances, or plants a plant of those listed in table 5 attached to this
law, obtains, brings or purchases it on purpose of taking or personal usage unless he is
authorized to do so.
Fourth: Article (37): shall be punishable by imprisonment for a period not exceeding ten
years, and a fine no less than five thousand dinars and no more than ten thousand dinars
whoever obtains, brings, purchases, produces, submits, delivers, retrieves, separates,
manufactures or plants narcotic substances not for trafficking, taking or personal use and in
other cases that are legally authorized.
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Fifth: Article (48) in the application of the provisions of Article (83) of the Penal Code,
referred to on the offenders of crimes stipulated in this law, the court may not replace the
death penalty only with life imprisonment, or the life imprisonment only with provisional
detention.
Article 2: canceling every text contradicts the provisions of this law.
Article 3: the prime minister and ministers should implement this law.
Explanatory note:
Mentioning in the memorandum for the proposal of the draft law on the amendment of some
provisions of Law No. 74 of 1983, on combating drugs, organizing its use and trafficking as
follow: The problem of drug abuse, especially addiction, is one of the most serious problems
facing the communities in the present time, therefore countries exert efforts at all local,
regional, Arabic and international level through specialized organizations and committees to
lay down comprehensive strategies to deal with this problem which threatens all
communities. After being the traffic of drug a global trade sponsored by organized gangs, the
analysis and manufacturing of drugs are one of the most serious problems of the modern age
because the one who takes drug becomes quickly uncontrolled addicted. The Arab and Gulf
societies have encountered fierce attempts for smuggling drugs into countries for many
reasons; on the top of which is that members of the Gulf communities are able to purchase
them, the matter that leads to the destruction of individuals, demolition of the social structure
and spreading deviation, crimes, family disintegration, rise of divorce rates, decline of values
and ethics and the corruption resulted thereof. Hence, it was necessary to study this
phenomenon and trace its growth stages to find out the real reasons which led to its spread,
and then stand firmly to stop its incursion and propose solutions to control the drugs
smuggling which have not been known only with the coming employers since the middle of
this century, which alerts facing the Kuwaiti society drugs and addiction problems. Although
the situation became difficult before the spread of this problem, the encounter is not
impossible comparing to the privacy that the Kuwaiti society enjoys making it able to address
the problem and avoid its serious and negative effects.
Deterrent Penalties
given the size and extent and the essential role of the death penalty in addressing this problem
by sentences issued by courts in crimes of this law which are punishments, even if it is
intended to deter and follow offenders, the legislator targeted by the regulating legislation
farther target that these punishments will do their role in refining and reforming offenders
sentenced in these crimes and driven to implement them behind walls. From this perspective,
the eyesight of the judge, his vision and his discretion is the main focus that controls these
punishments to do its reform mission in the light of each case and every defendant as the
authority vested to the judge would be as a result restricted but it should be absolute and free
of any restrictions and subject only to a full appreciation of the judge which is accordingly
subject to the assessment of the size and extent of punishment should be imposed on the
defendant.
From this standpoint, these amendments have been submitted aiming at eliminating all
provisions restricting the authority of the judge to assess punishment, which requires a
minimum limits may not ignored. It does not considered exaggeration to say that the judge
may be forced in many cases to acquit the offender not because of his innocence, but because
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of the hardness and cruelty of the minimum penalty which are limits restricting the authority
of Judge when issuing penalties of deprivation of freedom against addicts.
Therefore, this proposal was submitted as an amendment to the provisions of some articles of
this law by replacing texts restricting judge's authority to follow the minimum standard when
sentencing penalties of deprivation of freedom and making it unrestricted authority only by
following ceilings, which may not be exceeded at sentencing.
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Death Penalty in Lebanon
Between legal texts and Abolition
87
Lebanese civil society response to the abolition of death Penalty
On 5/12/2000, Al Nahar newspaper quoted a news story about the implementation of death
sentences early in the New Year. It is known that the term of office of the former President
Elias Al Harawi witnessed a record in the implementation of death sentences, the total
number of people executed in his term are sixteen citizens. The implementation of death
sentences was raised in the era of President Emile Lahoud, for the first time, where in March
2000 the Prime Minister Salim Al Hoes refused signing the decrees of execution, as it is
known. He justified his position that no one has the rights to take the life of a human. God
alone granted life and God is the alone who can recover it, "adding," I can not allow
slaughtering animals, so how to kill people? When I sign a decree to death as if I am in lieu
of the executioner, or sheep slaughterer, I believe that death penalty in Lebanon is decided
selectively and implemented selectively. Everyone says that death penalty is a deterrent to
crime I can respond that:
1. Death sentences were carried out in Lebanon in the past years and did not deter the
perpetrators who are sentenced to death later, and today they are awaiting execution.
2. The life sentence must also be a deterrent.
3. Societies, which have abolished the death penalty, do not indicate the need for such
punishment to deter crime.
4. It should be noted that more than a hundred countries in the world today denied death
penalty and the remaining countries is moving towards the abolition of the death
penalty in the laws."
The position of civil society bodies then was approving President opinion and Amnesty
International issued a statement on 21/3/2000, explicitly noted his position to the death
penalty and supported it.
Civil society organizations set off movement declaring emergency state to mend
the situation:
When the civil society organizations in Lebanon felt seriousness in the intent of the decision
makers, and direct the preparation of the initial implementation of decrees against Fadi Mrash
Mohamed Hussein sentenced to death, the mentioned bodies intensified their activities and
their movement to abolish the death penalty in the legislation generally and demand Lebanon
to sign Protocol II of the International Covenant on Civil and Political Rights calling for the
abolishment of the death penalty. Also, they demanded to stop any death sentences.
By the initiative of the Lebanese Association for Human Rights and People' Right
Association and the Association of the Defense of Rights and Freedoms, the aforementioned
bodies resumed their meetings and continued to hold regular meetings to follow up the
situation in all its aspects. The number of forces involved is 58 foundations and the
association, and they began to move.
Civil society representatives hold a press conference in Press Syndicate:
On 18/12/2000 the bodies held a press conference at the Lebanese Press Syndicate
represented by lawyers Neama Gomaa, Nada Al Adhami, Dr. Mary Ghantous Ogarithe
Yunnan and Walid Salibi, in the presence of Director of the Office of Amnesty International
in Lebanon, Kamal Al Obaidi.
He presented the conference representing the Lebanese Press Syndicate taking spectacular
historical events as examples on the death penalty, including:
An incident occurred with the old successor Al Ma'moun, beefing that a criminal was brought
to him and said, "I swear that I will kill you. The criminal answered: hold back sir, having
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mercy is half of amnesty. Ma'moun said: How and I have sworn to kill you? The criminal
replied: it is better to meet God perjuring rather than meeting him a killer, so he forgave
him."
Piece of an article by Jubran Khalil Jubran revolves around death penalty law, entitled
"Injustice behind the Guise of Justice", which included the following:
Three of the sons of Adam were alive yesterday, now they are in the grip of death. A man
killed another man, so people said he is an unjust murderer. When the Prince killed him,
people said he is a just Prince. Another man tried to take away funds of a monastery. People
said he is an evil thief. When Prince robbed him, people said he is a good Prince.
A woman betrayed her husband; people said she is an adulteress prostitute. Nevertheless,
when Prince stripped her and ordered her to walk to the public to be stoned. People said he is
an honorable Prince.
Bloodshed is impermissible, but who allowed it to the Prince? Looting money is a crime, but
who made taking life a virtue? Women betrayal is disgusting, but who said stoning bodies'
fine?
Should we meet evil by worse evil, and then say this is the law; and fight corruption by more
comprehensive corruption, and overcome crime by bigger crime and say this is the voice of
justice."
Press Association voice joined the voice of civil society bodies, requesting the cancellation of
death penalty law in Lebanon and the replacement by life imprisonment, but to make prison a
school to educate of the offender and qualifies him for a better return to public life after
prison. He added that some countries retain the death penalty law to be applied to citizens to
be as a sword at the hand of governors to threaten their enemies, although they know its
injustice.
A series of interventions were presented in the conference to be briefed as follows:
I feel sorry for the reapplication of death sentences and the suspension of hanging ropes, and
on the threshold of the advent of holidays that please the hearts of sad citizens because of the
many concerns of life, and their fear for their unstable human rights, granted to them by all
heaven laws and system of values, to depict that the killing of a man or more, whatever the
nature of the crime committed, is the solution and cure for the various social issues, as if it is
intended also to the wounded memory of the citizen in this country to keep alive and
inhabited by scenes of violence and terror, thus unfortunately it restores the structure to the
eras of revenge at the hands of the community and in its name.
Emphasis on the acrimony of the death penalty and its brutality and horror and its revengeful
nature, and the implementation on behalf of the society that can be described as lost mercy
and compassion to its sons.
The penalty opposition to the course of human civilization that considers human life a sacred
right, being a gift from God, no one, whatever his position, is entitled to put them to an end,
regardless of the act of a person who has the spirit in his body.
The penalty's opposition to international doctrines abhors the application of this penalty, and
urges the various communities to the non-application of the penalty, and its abolition in their
set legislations, with the observation that unfortunately instead of moving in this direction
and compatibility by Lebanon, it took a different approach by setting a Law No. 302 / 94,
which broadened the scope of application of the death penalty and stripped judiciary of its
simplest authority owned by approximation.
Calling for freezing the imposed and concluded death sentences, and stop its application
especially against people who are sentenced to death Fadi Mrash, according to the judgment
of the military court, without taking into account the legal observations on the nature of the
Court because they do not abide by the standards of a fair trial, adopted internationally, and
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despite the report of Dr. Magid King directed to the discriminatory Attorney General Adnan
Addoum on 14/4/2000, consisted of five pages, including "Fadi Mrash suffers from
schizophrenia and secede from the reality and suffers also from a state of psychotic making
him irresponsible for his acts. This is a kind of chronic madness schizophrenia that requires
treatment.
Following the press conference is the press release issued by the civil society organizations:
It is unreasonable that society commits (murder) by death penalty while denying it to citizens
out of the right to life is an immutable right.
Lebanon abiding by its constitution to apply the International Bill of Human Rights, could
not deny what adhered to it, which is one of the writers of that bill, and can only abide by
what is recommended by the Commission on Human Rights at the United Nations that
invited him in 3/4/1997 to the following:
The Committee expresses concern about the Lebanese government to increase the number of
crimes punishable by death, and urged the Lebanese government to review its policy on the
death penalty, with the aim of reducing them first and then eventually canceled.
It has been proved the ineffectiveness of death in deterring murder, which requires a review
of this policy and the adoption of a policy of rehabilitation and reform, and the replacement
of the imprisonment sentence rather than other penalties that affect the human right to life.
The enactment of Law No. 302 dated 03/31/1994 that expanded the application of the death
penalty and the elimination of Judiciary authority to grant extenuating reasons has put the
judiciary in trouble and feeling unsatisfied to the application of the sentence eliminating the
practice of its open role in achieving justice and the establishment of the concepts of the rule
of law.
Accordingly:
1. To appeal to the parliament to repeal of the law No. 302 issued on 31/3/1994 as a
prelude to the abolition of the death penalty in Lebanon in line with its commitment to
the international covenants.
2. To appeal to the President of the Lebanese Republic to exercise constitutional powers
to replace the death penalty in each case presented to him to conditional sentence of
life prison and not benefiting from any public or special pardon, even achieving the
necessary legislative amendments for the abolition of the death penalty.
3. To appeal to the government and the parliament to join the Second Optional Protocol
of the International Covenant on Civil and Political Rights, aiming at abolishing the
death penalty.
4. to appeal to all civil society groups, associations and bodies led by the lawyers
syndicate in Beirut and Trebles to keep working to abolish the death penalty.
5. To form a monitoring committee composed of a representative from each of the
association that has signed this statement and the membership would be open to those
committed to achieve the objectives to abolish the death penalty, to keep its meetings
held to follow up and development the mechanism of movement to implement its
program by all possible means.
The Chairman of the Deputies Committee also attended the press conference for Human
Rights in Lebanon, Dr. Marwan Fares, who announced his firm to call for the abolition of the
death penalty and the adoption of the demands of civil society.
The Amnesty International had a prominent and remarkable role supportive to the move as it
distributed in the press conference the following statement:
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o December 18 (December 2000)
o Document number: MDE 18/016/2000
o Press release No. 238
Lebanon: freezing death penalty should be the priority of the new century
Amnesty International said today "Lebanon should begin the twentieth century declaring an
immediate freeze on the death penalty and the replacement of the current sentences to life
imprisonment as a first step toward abolition."
Pierre Sané Secretary General of Amnesty International says, "The memories of the bloody
from which the Lebanese people suffered remain alive in memory and painful. We regard the
State in Lebanon to strengthen the cherished values of tolerance and respect for the right to
life and human dignity, which historically linked to the Lebanon. Pierre Sané added, "The
freezing of the death penalty would be a symbolic step for the future of Lebanon and the
beginning of the new century."
Lebanon has a historic role in opposing the death penalty. In the period between 1972_ 1994,
a single death sentence was applied, but in the period between 1994, _1998 Lebanon
witnessed the implementation of thirteen death sentences. It worth mentioning that no death
sentences were applied since the Lebanese President Emile Lahoud assumed his duties in
November of 1998.
The Amnesty International opposes the death penalty without any reservation, whatever the
circumstances. The organization believes that any death sentence is the peak of cruelty and
inhumane for the included insult to human dignity. No studies on the application of the death
penalty, including those conducted by the United Nations, indicated that the death penalty
contributed to the reduction of crime rates, even including those horrible. Additionally, States
that returned the application of the death penalty has not experienced a decline in crime rates
as a result.
Amnesty International believes that the unfair sentences may be issued by all regulations in
the world. Sometimes, death sentences are carried out in cases where the convicted persons
are innocent. For example, in 1998, the Appeal Court in the United Kingdom overturn a
conviction against Somali citizen Mahmoud Hussein Matan who was executed in 1952 after a
trial described as a racist.
Pierre Sané says "Death penalty strip our world of humanity. It legalizes violence to be
practiced by the State and society that its impact could not be mended as it ends human life"
Pierre Sané added, "Half of the world does not apply the death penalty, some of them
abolished the penalty by law, and some others froze its use and we hope that Lebanon joins
these States in the near future.")
Lebanese authorities conduct check people sentenced to death as a prelude to execution:
The concerned authorities in Lebanon have started preparing files for death convicts, as Al
Nahar newspaper published on 4/1/2001 the following:
The office of the public prosecutor recommended the approval of the application of death
penalty against 10 detainees as Penal Court has issued sentences against them for the
perpetration of normal murders. The case files of those convicted persons, including a woman
from Seri Lanka, were referred to Justice Minister Samir Jisr to be forwarded to the Amnesty
Commission chaired by the first President Munir Hanin.
Some people in Justice Palace expected the implementation of the death penalty after the
completion of the procedures relating to files and sign decrees.
The competent pens in the Palace of Justice have paid attention in the last two weeks before
the holidays to complete the procedures for the referral of the files the public prosecutor.
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The endeavors of civil society organizations in different ways:
On their way, civil society bodies set a program for movement for the implementation of the
following steps:
1. The sit in of "awaking conscience" that occurred on 3/1/2001 in front of ministers
board
The sit in was organized as a protest on the formal inclination to apply a series of death
sentences in the new year. Representatives from civil society bodies and human rights
organizations, the Amnesty International as well as the president of the representative
committee for human rights Marawan Fares and families of the convicted persons have taken
part in the sit in. the families expressed their position by black signs bearing "we declare
mourning on the victim of death crime." In addition, they appealed to the President and
ministers by two phrases "do not kill" calling the state to do what should be done in order not
to be a state of death and to be able to mend reasons of crime first rather than committing
once more crime. In the sit in eight wooden hanging pillars and eight executioners and eights
symbolic statues made of cotton as convicted persons would be hung in the next few weeks.
Representatives of the peaceful demonstrators submitted a note to Justice Minister entitled:
"the death penalty kills," to be delivered to Presidents Lahoud and Hariri, in which civil
society expressed their rejection of the death penalty, "Since we envisage life justice, not
death justice " and called for stopping the application of death sentences or freezing them
until adopting a new law of penalties, and refraining from Law No. 302 dated 21/3/1994
judging the abolishment of the extenuating reasons, and this is also what is claimed by
ministers and parliament members and officials, judges, lawyers and representatives of civic
bodies, as they called for the abolition of the death penalty and Lebanon's accession to the
optional treaty issued by the United Nations in 1991, and the compliance by a clear policy to
deal with crime.
They relied in their demands on a series of reasons as follows "the real justice can not be
attained by committing another murderer but to reform the conditions that led to the first act
of murder. The death penalty kills through cruel and inhuman brutality way and has
discretionary sense that it is applied only against minor people, especially the poor. It is an
indolent procedure that is concerned only with dealing with results not the root of the
problem, and legalizes violence, as violence must be outside of the law. Sometimes, the
application of this penalty increases crimes that became a revengeful act moved from
individuals to the State."
As a response to this note, the Minister expressed his endeavor to amend the law and the
return of Law No. 302/94. It quoted about officials that they will not take retaliatory steps.
On the evening of the protest, the bodies sent a letter to President Lahoud's calling him to
"give precedence to human conscience rather than "prestige of the regime", as the main goal
of the rulers should be creating justice in society, and that can not be attained through the
State revenge. It is quoted also that " this position is a direct call to the Chamber of Deputies
to shoulder its responsibility, and reconsider Law No. 302/94 in order to restore the right of
the defendant to have extenuating reasons, and in addition it is a right to the judge to restore
his role not only to continue applying the law of "the killer should be killed".
It commended the position of many parliament members and ministers opposing the death
penalty."
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2. A march of "no execution" on 8/2/2001.
The silent march brought together a group of bodies involved in the campaign, Dr. Marwan
Faris, and legal, political, social and union official. The march started from the Parliament to
the Ministers' Board. The march rose black banners saying "solidarity with the victims of
crime and the defense of the victims of death penalty" and "The State shall guarantee the
rights of the victim and the rehabilitation of the killer" and "two crimes can not create
justice" and "you should tackle the causes of the first crime instead of first commission of a
second crime"
Participants in the march wore black dress mourning on the justice which has been murdered
twice at the moment of the first crime and the moment of execution, and they carried on their
chests a black paper written by white font "Do not kill", and hangmen marched in front of
them "" carrying wooden gibbets.
After about an hour all demonstrators arrived at a museum close to the Cabinet, where
children were waiting them who removed the masks of the hangmen and kissed them then
they untied the ropes on eight gibbets and took these ropes and played "rope jumping" to
change life gibbet rope from a tool of death into a means joy, toys and life.
"No execution" remained the most prominent slogan, which has been carried in front of the
march, hopefully that demands raised by humanitarian and partisan bodies to be applied.
3. The follow up of the media and forums to the movement:
The campaign had a great influence on the visual and audio media. A series of workshops
were allocated to the subject of death penalty and penal reform and the modern view to the
penalty and prisons' reality, in which human rights activists from various human rights
associations and university professors have taken part. Additionally, the forums in the
Lebanese capital and various regions held seminars in this regard leaving a positive impact
on the movement and its activation.
4. The move at the official level:
Representative delegation of the civil society organizations moved actively in his contacts at
the official level and held a meeting with Justice Minister Samir Jisr at 30/1/2001, followed
by a meeting with Lebanese Parliament Speaker Nabih Berri on February 1st in the presence
of the deputy Butros Harb, in addition to personal contacts with a number of parliament
members, especially in the Committee of Administration and Justice.
The meetings resulted in an invitation to the President of to discuss draft laws on the death
penalty. The discussion has been forwarded to the Committee of Administration and Justice
to be placed on its agenda at the meeting of February 14. Following up on this subject,
representatives of the bodies met with the Committee President Mikhail Thahir and briefed
on the discussion and what happened in the course of the interview of the President of the
Council and the Minister of Justice. The dialogue extended to tackle various demands
beginning from the total cancellation in the Lebanese legislation, and the amendment of the
Lebanese Penal Code in the criminal reform rather than the policy of punishment to the
suggestion of appending a paragraph in the abolishment draft Law No. 302/94 on the position
of citizens sentenced to death according to pronounced sentences, and three proposals were
provided:
Retrial: the reconsideration by the body that issued the sentence the replacement of the death
penalty to hard labor for life.
At the mentioned session, a discussion has taken place by telephone with concerned members
including Boutros Harb, Walid Eido and Minister Bahij Tabbara.
At the next day, we were surprised to a delay of the conclusion of the submission of the draft
amendment until the minister Jisr presents a new project in the name of the government.
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We have learnt that the committee members confronted a problem of persons who have been
sentenced to death, and how to deal with them. They did not find any solution for this
problem and did not adopt any of the proposals submitted by the bodies up.
This situation necessitated to further intensify contacts with a number of members,
particularly in the Committee of Administration and Justice including Neamatallah Abi Nasr,
Ghazi Zeaitar and Yassin Jaber, Emil Al Gamil, Ali Bazzi and the rapporteur of the
Committee of Administration and Justice Nazih Mansour and Faris Said with the minister of
Justice again on 02-28-2001.
Contacts in this regard expanded to gain non-Lebanese forces including the representative of
the European Community and the Vatican's envoy.
The ball of the abolition of the death penalty is lost between the legislative and executive
authorities:
While the Committee of Administration and Justice was discussing by the draft abolition law
No. 302/94, the minister of Justice waited to provide a new draft, so the consideration of the
subject was delayed. While the minister of Justice, who requested the presence of a
delegation from the General Secretariat of the Council of Ministers, was reviewing, he
drafted his proposal on the agenda of the first meeting that has been enacted yet. The
Committee on Administration and Justice learnt that the draft amendment has not matured
yet, because the President was not convinced to adopt it at present, and the Legislature has no
intention to do an amendment opposing the viewpoint of the President.
Civil society bodies pursue seriously the issue of the abolition:
In this context, the aforementioned bodies continued their meetings and issued the following
press release on 7/4/2000:
(Yesterday, representatives of 58 civil and political parties of all of Lebanon met to confirm
their position opposing to the death penalty, as they signed a joint press release in this regard,
to remind that "time always are available to humanize laws".
This press release comes in the framework of the national campaign against death penalty in
Lebanon, which continued its steps through outreach activities and field movements and
intensive political contacts.
The campaign has been able to influence the political decision, for declared positive response
to the non-application of death sentences that had been rumored to be implemented early in
the new year and also for the preparation for the repeal of law 302/94 as a first step in the
way of the gradual reduction of the death penalty.
The press release is letter to the presidency of the Republic and the parliament and the
Council of Ministers, and the concerned officials.
The letter included the following:
"Because we want justice for life, not just for death and because the real justice can not be
attained by committing another murder, but by mending the unfair conditions that led to the
first act of murder, and that therefore became the responsibility of the killer relatively and he
may not have an absolute penalty. In order not to call the death penalty a lazy procedure
trying to evade the responsibility instead of encountering the crime reasons and the
rehabilitation of the killer and solidarity with the people of the victim, and to keep the
violence out of law, in order not to describe justice history as more brutal than the history of
the crime, so as not to turn the State "an official slaughterhouse" and the law as a means of
intimidation. The death penalty is applied discretionarily and affects only the vulnerable, and
because it can not be corrected if there was an error.
Since the aim is to abolish the crime, not the criminal, and that the application of the death
penalty does not serve this goal, as shown in studies of more than one hundred countries,
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however sometimes it increases crime rate. Sometimes, citizens take pride in their behavior
intentionally in their political authority that rule them, as it represents a psychological crisis
for all those concerned, beginning with the torn judge between law and alive conscience on
the one hand, and officers in charge of security and executioners, leading to indigent's people
and even people of the victim and their friends, and finally the president and officials of the
government, as we are sure they are vulnerable to mixed feelings of their humanitarian
feelings and concerns and worry on the prestige of the regime on the other hand, because we
hope for all official friendly white prestige, not dark black prestige.
Since Lebanon committed in its constitution to the application of the principles of the
Universal Declaration of Human Rights, it could not deny what promised while it is one of
the authors of this declaration, and has nothing to do other than committing to the
recommendation of the Commission on Human Rights at the United Nations, which invited
him in 3/4/1997 to the following:
"The Committee is concerned about the Lebanese government increase of the number of
crimes punishable by death urging the Lebanese government to review its policy on the death
penalty, with the aim of reducing them first to be canceled at the end."
Accordingly:
1. We appeal to the parliament repealing the law No. 302/94 which cancels extenuating
reasons, including the amendment of sentences issued now.
2. We appeal to the President to exercise his constitutional powers to replace the death
penalty with life sentence in order to achieve the necessary legislative amendments
for the abolition of the death penalty.
3. We appeal to the government and the parliament to accede to the Second Optional
Protocol of the International Covenant on Civil and Political Rights, aimed at
abolishing the death penalty, to be accompanied with the Penal Code to replace the
policy of the termination of the killer to reforming him rehabilitating him to guarantee
the rights of the people of the victim on the other, in addition to speeding up the
reform of prisons.
4. We appeal to all categories in the civil society and civic bodies specially Bar
Associations in Beirut and Trebles to keep up the work to abolish the death penalty. "
The signatories: the rights of people movement, the Lebanese Human Rights Association,
Association for the Defense of Rights and Freedoms, the Progressive Socialist Party,
Communist Party, the Free National Movement, the Republican Party, the movement of
people, and Joseph Waller Moghaizel, the citizen's movement, the General Murshedia of
Prisons in Lebanon, Protection of Human Right, Society Justice and Mercy, Democratic
Forum, the General Authority for prisons in Lebanon, Society for the Protection of Human
Rights, Labor Pastoral University, the International Union for Peace and people's rights, the
Trend of Civil Society, the Lebanese Institute for Permanent Civil Peace, the Lebanese
Council to Resist Violence against Women, Association of Literature and Culture _ Sida, the
Island Meeting _ Antyas, Monitoring Agency, Touk for human rights, the project of
Ecumenical for People Education, the Committee on the people of the kidnapped and missing
in Lebanon, Association of Humanitarian Rehabilitation and the Fight against Illiteracy,
Association for human rights without discrimination, the follow-up committee to support the
issue of detainees in Israeli prisons, Association of Lebanese People's Aid, the party of
Lebanese Movement, the Secular Democratic Party, Youth Movement, Assembly of
Democratic Lebanese youth, the Progressive Youth Organization, the National Union of
Unions, the Lebanese Democratic Women's Union, the Lebanese Association for Democratic
Elections, the Union of Lebanese Disabled, Renaissance Youth Federation, the Social
movement, Worker institute, a professional of Plastic Art for Culture and Arts _ Rashaya
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Valley, Farah Tender, the Lebanese School for Social Training, the Cultural Council of South
Lebanon, a Forum of Cultural Images, the Lebanese Body for Environment and Development
_ Verde podium, the Democratic Youth Union, the Youth Center for Awareness and
Guidance, Association of generation, the Association of University Students of the Armenian
Church, Peace Research House and human rights _ north, the Progressive Women's
Federation, and Lantern and Ink, Literary Association, Institute of Rene Muawwad,
Association of University Students in the North _ Trebles.
The letter of the civil society bodies to the president and parliament members:
The abolition of Law No. 302/94, which stripulates the judge of his powers to grant
extenuating reasons and the reconsideration of death sentences.
Convincing that death penalty does not deter crime seriously _ evidently the growing number
of sentences _ that is the reason that led many countries to abandon it completely, as many
other countries do not apply it for ten years, although it still exists in the texts, because the
death penalty is only a curtain hiding rulers and official in order not to take any drastic action
to fight crime, taking into consideration that our society is revengeful and controlled by tribal
mentality of revenge. If this is the diagnosis of the disease what should we do to treat it and
get out of this situation? Will killing the convicted people change their mentality and develop
community?
Taking into consideration that abolition of the mentioned law will return us only to the
ordinary penal code, which still include the death penalty, pursuant to gradual reform in the
legal status until the stage that may be favorable to the completely abolition of the death
penalty from the legal texts in line with international covenants,
Since the issuance of Law No. 302/94, which perhaps was justified then, that is no longer
justified now as more than ten years has passed at the end of the ominous war,
Since there was unanimity in all communities, without exception, on the need to abolish it.
When a number of members who had made a draft law in this regard, but the government had
pledged to present the draft law,
For those reasons,
We report the following:
First: the non-constitutionality of Law No. 302/94
1. On the text of the article G of the introduction of the constitution, which stated that:
"the system is based on the principle of separation between authorities and its balance
and cooperation?"
Based on Article 20, paragraph 2 of the Constitution, which states: "judges are independent in
the conduct of their profession"
As the judges were not independent under law 302/94 when they assume their profession that
the Legislature prevented the judge to use his authority to assess the extenuating reasons for
the crime. When they issued death sentences, they had not free and would not able to judge
in the case according to their conscience and convictions on the facts of each case. Therefore,
law No. 302/94 had disrupted the judicial function and form of a gross interference with the
judicial authority that consequently affected the principle of separation and balance of
powers. Since under this law when the verification of some facts the judge becomes required
to issue the death sentence regardless of the reasons for the crime. So the judge turns to be a
mere machine issuing sentences when the judicial and administrative authorities do their job.
The law would therefore be unconstitutional.
2. When Lebanon became a member of the United Nations after the ratification of the United
Nations Charter, signed in San Francisco, under a law issued on 25/9/1945, based on Article
3 of the Universal Declaration of Human Rights Charter which was proclaimed by the
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General Assembly of the United Nations in 12/10/1948, which states: "Everyone has the
right to life, liberty and his personal security"
Based on Article 6, paragraph 1 of the International Bill on Civil and Political Rights issued
on 12/10/1948, which states: "Everyone has the inherent right to life, the law protects that
right. Any person may not be deprived of his life arbitrarily."
Also building on Article 6, paragraph 1 of the law promulgated by Decree No. 3855 issued on
1/9/1972 (the possibility of Lebanon's accession to the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights),
which states: "Everyone has inherent right to life, and enjoys this right and under the
protection of the law.
As these texts are international treaties introduced within the Lebanese laws and become part
of the Lebanese legislation exceeding the strength of domestic laws, including the
constitutional and ordinary,
Returning to Law No. 302/94 shows that this law is unconstitutional and violates the United
Nations Charter and the Universal Declaration proclaimed by the General Assembly of the
United Nations and the subsequent treaties that as soon as the criminal court judge was
denied the right to assess the circumstances of the case so people sentenced to death, if
applied, were deprived of life arbitrarily without any legal protection, in addition to the State
negligence in terms of protecting the victims right to life with the absence of any preventive
policy or policy of rehabilitation for prisons and prisoners.
It should be noted that the parliament has already repealed many laws in 1948 for the
violations of the provisions of the Constitution and the Constitutional Council repealed a
series of laws between 1998 and 2000 at the appeals submitted by a group of members.
Second: the pardon or amnesty
1. The Article 6, paragraph 4 of Decree Law No. 3855 on 1/9/1972, which allows
Lebanon's accession to the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights states: "Each
person sentenced to death has the right to seek pardon or the replacement of the
penalty, and may, in all cases, issue amnesty or pardon or the replacement of the
penalty.
2. Based on this text, the right amnesty, pardon or replacement is a responsibility not
just a privilege exercised whenever it is acceptable, If the presence of an illegal and
unconstitutional and unfair law is not a justification for the use of this right, so what
is the justification then?
3. The failure of the President, the Council of Ministers, or the parliament to move is
abdication of responsibility as the Lebanese State is primarily responsible for the law
302/94, which led to the issuance of death sentence on persons, may necessarily
deserve the punishment. No one has the power to assess the circumstances of each
case other than judiciary.
4. As a response to the allegation that the repeal of law 302/94 resolves the problem of
persons sentenced to death in accordance with the mentioned law is an impossible, we
can say that the right to pardon granted by the President and the right to amnesty
granted by the Legislature both aim by nature at the suspension of a sentence issued
by the judiciary. The President of the Republic and the parliament are entitled to grant
this amnesty and this will never constitute a legal precedent used by people in other
cases as some claim. No one can convince us this is not an encroachment on judicial
power, moreover the exercise of the right is granted for each of the Constitution the
House of Representatives and the President of the Republic.
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For all reasons we have mentioned we demand urgently to repeal law No. 302/94 as soon as
possible and reforming the conditions of convicted persons to death. For the last point, we
demand to adopt one of the following solutions:
1. Either passes a law allowing the retrial of persons who have been sentenced to death
based on the law 302/94.
2. On the other hand, to pass a law allowing the reconsideration of the files of the abovementioned persons to all allow judges to be able to carry out their mission and be able
to asses the extenuating reasons to consider all the facts fixed and the entire file
cannot be open. Because the law that will be applied is considered the normal Penal
Code the penalty may be lighter punishment at the discretion of the judge, therefore
the retrial would not constitute an intervention in the powers of the President who
remains having full power in the event the Court decided the death penalty,
3. Either state the replacement of the death penalty with lighter penalty, that does not
deprived from the rights to life.
The position of the Lebanese judiciary and its objections to Law No. 302/94:
The most outstanding event is the position of the Lebanese judiciary, which the objection of a
member of the court on a death sentence, which contains different views on judicial Law No.
302/94:
An objection by the counselor: a conscience crisis with the death penalty law
The Criminal Court in Lebanon Mount, chaired by Judge Joseph Ghamroun in the crime that
claimed the lives (Gh. H) fired by a guard of the former parliament member (a. H) suspended
(h. J) in Al Hadath.
The court dismissed the application of the article of executing the killer intentionally by
majority, considering his act constitutes the crime of causing death without intent, the
provisions of article of Article 550 of the Penal Code were applied and he was sentenced to
15 years in prisons. However, the opinion of the counselor Khaled Hammoud opposed the
majority opinion, considered the act of the accused constitutes a felony punishable by death
in Article 547, and judged the imprisonment of the accused to 20 years criticizing at the same
time the provisions of law No. 302/94, which states the execution of the killer deliberately.
He said in his objection the judiciary and judges have become embroiled with this law
because it stripped the judge off the discretionary authority of the judge, which led to resort
to hard thinking and fatwa as is in this case.
The statement of the disagreement
The objection of the counselor stated: "I disagree with the majority opinion in the present
judgment and I believe that the court rejected the application of the provisions of Law No.
302/94 and thought hard and applied the provisions of Article 550 penalties against the
accused.
Since the judiciary and judges in Lebanon embroiled with Law No. 302/94 because it
stripped the judge of the discretionary authority or "le pouvoir diseretionnair" by which he
has the power to assess the punishment to be commensurate with the offense committed,
equitable and fair, and made justice shakes for the non-conviction of the Judge the
application of the provisions of Law No. 302/94 in many cases, which made some judges
resort to hard thinking and the application of the provisions of Article 550 penalties to relieve
their conscience, which is the voice of justice. That is because death penalty, under this
amendment, became imperative and mandatory without distinction between the intentional
murder and intentional murder after the judge was denied his natural right and his absolute
discretion in imposing the appropriate punishment.
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Since the purpose of the legislature to the amendment of Article 547 is to stress that that the
murderer should be killed, however on the other hand he has created confusion among people
and legal confusion. Death penalty is stated in Articles 549, 591, and 640 of the Penal Code
as well as the provisions of the Military Penal Code. Thus, there is no need to amend Article
547 penalties for death penalty as long as it exists in many texts, which its modification
confuses justice and makes a lot of courts avoids the application.
As some went even further considering law No. 302/94 on contrary to the provisions of the
Lebanese constitution and international treaties ratified in Lebanon.
(In this regard the disagreement of the counselor Rustum Awad in the judgment of the
Criminal Court of Mount Lebanon No. 199 dated 4/2/1982)
Following the texts of the Lebanese Penal Code, we believe that Article 547 penalties
synchronize track with articles 548 and 549 and 591 and 640 penalties in the murder
intentionally making this amendment violates the legal general regularity for the following
reasons:
First: it destroys the legal basis for each murder set forth in other articles above. These
articles mingle without distinction or discrimination, so as long as the standard is unified that
the killer should be killed not even pardoned by the people of the victim that lead to reform
among the people and the payment of ransom, and compensation and granting judiciary the
right to use extenuating reasons in the interest of people and the community because the
penalty is not for revenge but to reform.
Second: This amendment created an imbalance in the application, for example, the
extenuating reasons are given in more serious crimes such as murder in the fire or for theft
and prevented in ordinary intentional crimes less serious making justice unbalanced.
(Refer to the lecture of President Joseph Ghamroun in Bar Association in 18/2/1999 the
execution of the killer No. 302/94 a resolution or problem)
Third: the judge of the Criminal Court is denied the discretionary authority to impose an
appropriate punishment for the offense, he may not be denied this right for the connection to
public order and the principle of separation of powers, as no power should override the
authority of another power or to deny it to practice its natural and constitutional right.
Therefore, no authority may deny the judiciary its right to the assessment in the discretion to
impose an appropriate punishment, just and fair, because it is the essence of their work and
considered a natural and constitutional right. Therefore, the breach of this principle is
considered a breach of the principle of separation between powers.
Based on the above, in this case the judge, who is the responsible for justice, must follow the
legal text to be in conformity with justice, and not to become incompatible with to turn to
injustice, and this is his right without competing, and thus requires the non-application of the
provisions of Law No. 302/94 and the return to the application of the provisions of Article
547 penalties for the violation of this amendment to prevent injustice.
For these reasons, I oppose the majority's opinion in terms of the application of the provisions
of Article 550 penalties in this case to the unavailability of the components of this case only
in relation to the willingness of the accused h. J. to kill the victim. H deliberately, and
considered the criminal act committed by the accused is the premeditated murder and apply
the stated crime and punishable in Article 547 penalties and proposed the punishment of hard
labor for a period of twenty years.
Annex
Legal texts mentioned in the Lebanese legislation sentencing to death penalty:
1. legal texts mentioned in the Lebanese Penal Code:
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Law
No.
302/94:
"The application of death penalty in intentional murder or politically-motivated or had a
political character" approved by the parliament
The President of the Republic published the following:
Article 1: Contrary to the provisions of Article 198 of the Penal Code that states the
judgment of death penalty if the murder was politically motivated or had a political
nature.
Article II: the application of the provisions of Articles 547 and 548 of the Penal Code are
suspended and the death penalty is applied against who kills a human being deliberately.
Article 3: The murderer may not be granted, in the two previous articles, and article 549
of the Penal Code, extenuating reasons.
Article IV: the provisions of this law are not applied on the armed forces during the
performance of their job and stay in this case subject to the provisions of the normal law.
Article V: This law is applicable after its publication in the Official Gazette.
In political crimes:
Article 198: if the judge verified that the crime has a political feature he is entitled to
judge the following penalties:
Life imprisonment instead of death or hard labor for life.
Temporary arrest, deportation, criminal house arrest, or civil forfeiture instead of
temporary hard labor.
The simple imprisonment or house arrest instead of custody with the labor.
These sentences do not apply to crimes on the external State security.
Article 196: political crimes are intentional crimes committed by the criminal politically
motivated. It is also crimes of public and individual political rights.
(1) Unless the offender had been driven to sordid selfish motive.
Article 197: the political crimes are composite crimes and associated with (2) political crimes
unless they are not the most serious in terms of morality and public right such as murder,
wounding and serious assault on property by burning or destruction or submerging and
serious thefts particularly those perpetrated by arms and violence and the attempt of these
Crimes (3) in civil war or rebellion, crimes are not considered composite or politically
featured only if the customs of war would not prevent them and not of barbaric acts and
sabotage.
Murders:
Article 547: any person kills a human being deliberately should be punished by hard labor
from fifteen years to twenty years.
Article 548 (amended by law of May 24, 1949, and the Legislative Decree No. 112 dated
16/9/1983)
Punishable by life imprisonment to death if committed intentionally for:
1. for villain reason
2. to obtain the benefit resulting from the offense
3. the willingness of the offender to distort his body after murder (this paragraph was
modified by the legislative Decree No. 112 dated 16/9/83, Article 32 thereof)
4. a minor under five years
5. two persons or more (a paragraph added by legislative Decree No. 110 dated 30/6/77
c. T. annexed to issue 20)
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Article 549: (amended by law of May 24, 1949, legislative Decree No. 112 dated 16/9/83
concluded by article 33 by adding three paragraphs 6, 7 and 8 to the original text):
The death penalty is sentenced for intentional murder if:
1. Deliberately
2. To be a prelude to a felony or a misdemeanor, or facilitate its implementation, or to
facilitate the escape of the instigators of the crime or the perpetrators or abettors or to
prevent them from punishment.
3. One of the offender's origin or his subsidiaries
4. The intentional attempt of the offender to practice torture or brutality against persons
5. The legislative Decree No. 110 dated 30/6/77 _ c. T annexed to issue No. 20 added
this item).
6. To practiced against the officer in the course of his employment, or because of it.
7. Against a man because of his sectarian belongings or a revenge for a crime committed
by someone out of his community or his relatives or his party mates.
8. using explosive substances.
9. for evasion of a felony or misdemeanor or to conceal its trace.
Treason
Article 273: every Lebanese citizen fought against Lebanon in favor of the enemy should
be punished by death.
Every Lebanese, even if he does not belong to a hostile army, attempted to commit
aggressive acts against Lebanon at the wartime should be sentenced to hard labor for life
Every Lebanese citizen recruited in a hostile army, with any capacity, and did leave it
before any aggressive acts against Lebanon should be punished by temporary hard labor.
Article 274: every Lebanese citizen slipped plots to a foreign country or contacted it to
push it to direct aggression on Lebanon or to provide them with the means to do that
should be punished by hard labor life imprisonment.
If his acts led to a concrete result should be punished by death.
Article 275: every Lebanese citizen slipped plots to the enemy or contacted him to help
him in any way should be punished by death.
Article 276: every Lebanese citizen attempted, by any means, to damage installations,
factories and ships, vehicles and air tools, ammunition, livelihoods and ways of
transportation, and generally all things of a military nature or intended for the use of army
troops or affiliates should be punished by life imprisonment.
Sedition
Article 308: any person should be punished by the penalty of hard labor for life for
assault, which aims to raise either civil war or sectarian fighting by the Lebanese arms or
to induce them to go into battle against each other and either by inciting to killing and
looting, death penalty should be applied if attack committed.
Terrorism
Article 315:
2. Death penalty is applicable for the assault or attempted assault, which aimed to raise
civil war or sectarian fighting by providing arms the Lebanese or to induce them to
hold arms against each other or inciting killing, looting and sabotage.
3. everyone presides an armed gang or took a post or leadership whatever its kind either
for the invasion of a city or some State property or properties of people to attack or
resist the public forces fighting against the perpetrators of such crimes should be
punished by death.
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4. Participants in an armed gang composed with intent to commit one of the crimes set
forth in the preceding paragraphs, should be punished by death.
Theft
Article 640: If an act mentioned in the previous article (639) was accompanied by
violence against people to create suitable conditions for the crime, or to facilitate or to
seize stolen substances or to secure the escape or if one of the acts has been committed at
night, the punishment should be raised to hard labor for life. If the perpetrator attempted
to kill people for a reason related to theft which is mentioned in should be punished by
death.
Article 642: everyone commits any of the crimes mentioned in Article 641 amended by
the Penal Code should be punished by life imprisonment either by two or more gunmen
had used or threatened to use weapons or the commission of a crime was accompanied by
violence against anyone. Anyone also should be punished by if the commission of the
crime led to sinking the ship and the death of one of the passengers.
Article 643: The penalty of hard labor is applicable for:
 Who seized illegally, with any means, an aircraft in flight.
 Who committed unlawfully and deliberately the following acts:
 To endanger the safety of the air navigation, or the aircraft navigation safety
 To cause a deliberate damage to an aircraft in service rendering it unfit for flight
 To cause deliberately heavy damage to facilities or equipments or air navigation
services.
 Reporting information with the knowledge that it is incorrect.
The offender should be punished by death if he committed, by any means, an act of
sabotage in the plane putting it at risk of falling or destruction or if the act resulted in the
death of a human being by terror, or any other reason related to the incident.
2. Texts mentioned in the Military Penal Code:
In flee
Article 110: every soldier committed the crime of flee to the enemy should be punished
by death and military forfeiture military.
Article 112: If flee set out in Article 111 in wartime, the soldier is punished by death and
forfeiture military
a. soldier who flees by plot to enemy
b. the head of the plot whether the flee is to abroad.
In treason and military plot
Article 123: every Lebanese soldier or in the service of Lebanon should be punished by death
if he fights against Lebanon.
Article 124: every soldier in military forces, naval forces or air forces should be punished to
dearth for the following:
a. to incite to flee from war
b. To incite without an order from his leaders to stop fighting or to surrender or to join
the enemy.
c. intentionally caused the seizure of the enemy to naval material under his military
control
d. To maintain relations with the enemy in order to facilitate its work.
Article 129: the following are considered spy and punished by death:
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a. every soldier who enters a military site or a military center or any other military place
to obtain documents or information beneficial to the enemy or affect the safety of
these places.
b. all military gives the enemy documents or information that would affect the military
actions
c. every soldier hides himself or through others and aware of the enemy's spies
Article 130: every militant person hand over troops under his control or the site mandated to
defend or to deliver supplies of the army or maps of military sites should be punished to
death.
Looting and Destruction
Article 132: Any militant or non-militant person in a military site attempts to loot an injured,
sick, or drowned or dead person should be punished to provisional arrest.
The offender should be punished by death if he committed acts of violence causing injury
worsening his conditions to facilitate the robbery.
Death Penalty in Lebanon between Legal Texts and claiming for the abolition
The judge Arthur Jacklson, president of the Constitutional Court in North Africa, concluded
in brief (the right to life and dignity are the most important of human rights, and state should
prove that in all its works, including the manner of punishing criminals).
Quoting this opinion of experience, practice and deep understanding of human thoughts, to
say that the State which applies the death penalty is breaching the rules and standards of
justice and violating a sacred right of man, that is his right to life without the slightest
consideration of the inherent human dignity associated and un-separated his personality since
his birth characterized with innocence and purity, regardless his end up in his personal
behavior and criminal actions he committed are product of social and political conditions and
circumstances which cause such acts.
Therefore, it is the state responsibility to maintain man's life and dignity because the ruling
power arising from it is originally found to run the affairs of state and people and preserve
their lives and their livelihoods. That is a cause and justification for its existence, that if it
deviated or ceded its role, it would lose its legitimacy.
Managing people's affairs are not confined to the day-to-day running of their affairs, but
extends to upgrade their social, economic and cultural conditions through the development of
their legislative systems towards achieving the great dream that the humanity aspires to,
namely the achievement of peace on Earth, the spread of atmosphere of tranquility for all
human beings, so as to ensure a free dignified life preserving, maintaining and keeping his
fixed fundamental rights. Among of these, rather the forefront is human right to life. For the
importance and substantiality of this right, the human right is dedicated to issue conventions,
covenants and protocols aiming at the abolition of the legislations and practices which violate
and diminish it, especially the abolition of the death penalty.
Lebanon state is among the states still applying this penalty although it accredited the
international conventions and declarations in its constitution. This situation shows the
contradiction in the Lebanon position for adopting the penal policy instead of confirming
with the international state for penal reform, and conflicts with his pride as one of the drafters
of the universal declaration, and his cultural role on both regional and international
atmosphere.
This interjection fall within the frame of reviewing the international conventions and the
extent of convening Lebanese legislations in the field of execution penalty and the track
adopted by the movement calling for the abolition of this penalty.
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Developments on the legal sphere
In the issuance of their national legislations, states rely on social, economic and cultural
sources inspired by their history and heritage. However, the movement of global development
and the condition of states opening on common human values system have constricted the
space reserved nationally in the interest of universal values space. These values have been
dedicated by considerable international covenants and declarations, and maintained
undiminished rights of human, associated and inherent with his personal identity, are not
waived by as far as the dignity of his humanity. Among of these rights is the right to life, as
human society is keen to issue many international covenants and legislations to devote this
right, and urge the States to repeal all legislations which lead to the infringement or detract
thereof, including the abolition of the death penalty.
Indicating the importance of this issue, we review the international treaties and conventions
pertaining to the protection of the human right to life, and its implying the texts calling for the
abolition of the death penalty. Then we will tackle, in our intervention, the Lebanese
legislative developments in this field and the efforts of civil society to achieve it.
Developments of the abolition of death penalty in International Legislation:
International community, representing particularly in the General Assembly of the United
Nations and specialized agencies in the International Organizations, attached to issue
international conventions, resolutions, covenants and recommendations within the framework
of the march abolition of the death penalty. Regional organizations, in turn, keen on ratifying
conventions concerning the penal reform and the abolition of the death penalty. Many of
these conventions and treaties of a binding character of the State, which decided to be a party
therein by inserting amendments on their legislative texts abolishing the death penalty for
their compatibility with International laws. The international community is seeking access to
devote abolition of this penalty finally at the international level.
International conventions which stressed the right to life and urged the abolition of the death
penalty. Among of them:
International Declaration:
Preamble of the International Declaration contains an affirmation that (all people are borne
free and equal in dignity, rights…). Declaration dedicated in Article II that (everyone is
entitled to enjoy all rights and freedom). Article III stipulated that (everyone has the right to
life, liberty and security of person, and that he shall not be subjected to torture or cruel,
inhuman or degrading sanctions). Article 30 provides that (not in any text of this declaration
shall be construed as authorizing the State, group or person any right to perform an activity or
action aimed at the destruction of the rights and freedoms contained therein).
The last article imposes on the States of human society to protect the right to life and not to
take any action leading to the loss of the spirit of man.
Though the Universal Declaration is described as a moral document, yet it is a source and a
basis for a number of international covenants, which devoted the fixed and fundamental
rights of man. The declaration was regarded the source of inspiration and the fountain of
various covenants mentioned.
The International Covenant on Civil and Political Rights:
Launching the preamble of the International Covenant on a paragraph to emphasize the
emergence of rights from (the inherent dignity of the human person), and called on the
international community to realize and create appropriate conditions to allow everyone enjoy
his civil and political rights alike his enjoying economic, social and cultural rights, as the
104
only way, according to the Universal Declaration of Human Rights, to achieve the ideal of
free human person autonomous civil and political freedom and free from fear and want).
Article VI stated that (every human has inherent right to life, thus it is ineligible to deprive
any one of life) and called countries, in the second paragraph, that have not abolished the
death penalty to not govern by such penalty only for the most serious crimes, in accordance
with standards of fair trial. Article V banned (the interpretation of any provision of the
Covenant to imply any right of any State, group or person to practice an activity or perform
any act aiming at wasting any right or freedom of the rights recognized in the Covenant, or
more restrictive than provided for in it)
Optional Protocol II of the International Covenant:
Among the most prominent international conventions, the Second Protocol attached to the
International Covenant on Civil and Political Rights issued on 12/15/1989, adopted by the
General Assembly of the United Nations under resolution No. 44/221. Having ratified by 54
States and acceded to more than 10 countries at date subsequent, with the exception of some
Arab countries, and unfortunately Lebanon.
The mentioned Protocol prohibits sentencing to death, and allows breaking this principle in
time of war for the very serious crimes of a military nature committed during wartime. The
Protocol requires the States exercising this exception to have reserved for on accession and
not later.
International Resolutions and Recommendations:
The General Assembly of the United Nations and the specialized agencies put into account
working towards the abolition of the death penalty. International resolutions and
recommendations have been issued to expressly prohibit prejudicing the right to life,
whatever the nature of the offense committed by the criminal. Including without limitation,
for instance:
- Resolution No. 7857/26 of the General Assembly of the United Nations on 20/12/1971.
- Resolutions adopted by the Economic and Social Council of the United Nations; the
first on 09/05/1979, and the second on 20/05/1981.
- Resolutions adopted by the International Committee of Human Rights, No. 8 / 1998,
61/1999.
- International Convention on the Rights of the Child, has been adopted by the General
Assembly of the United Nations unanimously on 20/11/1989, stipulates in Article 37 to
prohibit the application of the death penalty.
We note here that the Rome Convention of 1998, relating to the International Criminal
Court, has been free from the version of the death penalty in its system.
Regional Conventions and Recommendations:
Along with international covenants and conventions taking the path of the abolition of the
death penalty, a number of regional organizations adopted protocols and conventions taking
this approach, among of them:
a. Protocol attached to the American Convention of Human Rights calling for the
abolition of the death penalty. It was ratified by 9 countries.
b. Resolution of European Council No. 727 on 22-04-1980.
c. Recommendation of the European Parliament No. 891 dated 18/06/1981
d. Protocol No. 6 attached to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Having ratified by 46 European states.
105
e. Protocol No. 13 attached to the European Convention has been ratified by 30
European states and signed by 13 other State.
f. Arab Charter of Human Rights adopted by the 16th Arab summit held in Tunisia on
23/05/2004. Approval has been delayed for a period of more than 23 years of
preparation of the first draft declaration, because of reserving a number of Arab
countries for the abolition of the death penalty, arguing that Zionism is an impediment
to the realization of human rights. However, the Charter exempted serious crimes
from the prohibition of the execution and still the application for political crimes
associated with the felony murder or attempted it.
Lebanese legislation:
In this part, the report addresses the international conventions approved by Lebanon and
provisions of the Lebanese constitution, and points out in the next chapter the Lebanese
legislations containing provisions requiring the infliction of death penalty.
Accession to International Covenants and provisions of the Lebanese Constitution:
Lebanon crowned the Constitution with preamble published on 21/09/1990, a paragraph
included (Lebanon is Arab identity and belonging, a founding and working member in the
Arab League and is committed to their charters, as well as a founding member and worker in
the United Nations and is committed to charters and the Universal Declaration of Human
Rights. State reflects these principles and rights in all areas without exception).
Thus, it is one of the first countries that signed the Charter of the United Nations of 1945 and
ratified it. It also proud that it is one of the makers of the Universal Declaration of Human
Rights represented by Dr. Charl Malik.
The Lebanese Constitutional Council has issued numerous resolutions which regarded (that
the principles contained in the preamble of the Constitution are integral part of it, and enjoy
the constitutional value like the provisions of the Constitution), including Resolution No. 2 /
1997 on 12-09-1997.
Lebanon has ratified to date, the following international conventions:
a.
b.
c.
d.
The Universal Declaration of Human Rights issued on 10/12/1948
The International Covenant on Civil and Political Rights ratified on 01/09/1972
International Convention for the prohibition of genocide.
Geneva Conventions of 1949 and the two attached Protocols of 1977 and ratified on
02-28-1997.
e. International Convention against Torture, 24/05/2001
f. International Convention on the Rights of the Child 05/01/2000.
On issuing Code of Civil Procedure in 1983, Lebanon has upgraded the level of international
treaties, and provides their provisions the priority to be applied in case of its conflict with the
ordinary law, under Article II of the said Act.
Lebanese legislations judging the infliction of the death penalty:
The issuance of the Lebanese Penal Code return to 1943. It has adopted the principle of
applying the death penalty and tended towards a theory of regarding the death penalty as a
deterrent, unlike the modern theory adopted by the penal reform, with considering the social
circumstances and motives in the reasons of the crime and refusing to impose a death penalty
for working on the reform of the offender by rehabilitating him.
Besides the legislative texts contained in the Penal Code that provide the infliction of the
death penalty, special laws issued in turn to impose such penalty.
Death penalty in the Penal Code:
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Legal texts contained in the Lebanese legislation and Judging the death penalty
Murder Crimes:
Article 549: ("as amended by law on May 24, 1949, and Legislative Decree No. 112 dated
16/9/1983, which implied the following, under article 33 there of by adding three paragraphs
6, 7 and 8 to the original text":
It shall be sentenced by execution for intentional murder if it committed:
1. Deliberately.
2. To prelude, facilitate or implement a felony or misdemeanor, to facilitate the
flight of the instigators, the perpetrators or abettors of the crime or to prevent
them from punishment.
3. Against one of the offender's or its subsidiaries.
4. In case engaging the criminal in torture or brutality acts against persons.
5. "Adding this item in the Legislative Decree No. 110 on 30/6/77c.r annex of
issue 20"
6. Against an officer during or in the course of exercising his employment, or due
to it.
7. Against a man because of his sectarian affiliation, or revenge for committing a
crime on others of his community, his relatives or his party mates.
8. By using explosive materials.
9. For escaping from a felony or misdemeanor or concealing their features).
Treason:
Article 273: (every Lebanese carried a weapon against Lebanon in the ranks of the
enemy shall be punished by execution).
Article 274: (every Lebanese schemed plots or contacted with a foreign state to push it
to direct aggression on Lebanon or to provide it the means shall be punished by life
imprisonment, but he should by executed if his act led to a result.)
Article 275: (every Lebanese schemed plots, contacted or telephoned the enemy to help
him to defeat in any way, is punished with execution).
Article 276: (it shall be punished by life imprisonment on every Lebanese engage, in
any way, in paralyzing National Defense, or damaging facilities, factories, ships, air
vehicles, equipments, ammunitions, livelihoods and means of transportation, and
generally all things of military nature or intended for the use of army or troops
affiliated. Death is executed if the act took place at the wartime, when anticipating the
break out of war or led to the damage of a soul).
Sedition:
Article 308: (it shall be punishable by hard labor for life for assault that aims at
breaking out either civil war or sectarian fighting by arming the Lebanese, inducing
them to carry weapon against each other or inciting them to kill and loot shops, and
death is executed if assault occurred.)
Terrorism
Article 315: -it shall be punishable by execution for assault or attempted to assault
designing to raise the civil war or sectarian fighting by arming the Lebanese, inducing
them to be armed against each other or inciting them to killing, looting and sabotage.
107
-
It shall be punishable by execution whoever commanded or undertook post or
command of armed gang of any kind, either with the aim of invading a city,
place or some property of the state or group of citizens, or either to attack or
resist the public forces of working against the perpetrators of such crimes.
- It shall be punishable by execution the participants in an armed gang intended
to commit any of crimes set forth in the previous paragraphs).
Theft:
Article 640: (if one of the acts mentioned in the previous article "639" accompanied
violence against persons in a way to create or facilitate crime, to seize the stolen or to
secure the escape or if an act is committed at night, the punishment is raised to hard
labor for life. If the perpetrator killed a person for a reason related to thefts mentioned is
punishable death).
Article 642: (it shall be punishable by life imprisonment if the commission of any of the
crimes set forth in the amended Article 641 of the Penal Code, by two or more gunmen
used or threatened to use weapons or if the commission of a crime of accompanied
violence on anyone. It shall be punishable by execution If the crime leads to the sinking
of the ship and the death of one of the passengers.)
Article 643: (it shall be punishable by a term hard labor imprisonment for whomever
- Illegally seized, by any means, an aircraft in flight ...
- Unlawfully and intentionally Committed the following acts:
Whether it is likely to endanger the safety of air navigation or aircraft navigation.
1. Inflicting deliberate damage in an aircraft in service that makes it unfit for
flight.
2. Inflicting serious deliberate damage in facilities, equipments or air
navigation services.
3. Reporting information with the knowledge that it is incorrect.
It shall be punishable by execution if the offender, by any means, committed
sabotage act in the plane that may expose it to the risk of falling or
destruction or if the act resulted in the death of a human being because of
terror, or any other reason related to the incident).
Texts mentioned in the Military Penal Code:
Escaping
Article 110: (it shall be punishable by execution, with military forfeiture, every
military committing a crime flee to the enemy…)
Article 112: (if flee shown in article "111" took place in time of war, it shall be
punishable by execution with military forfeiture. A- the military who flee from an
enemy in conspiracy.
B-President of conspiracy when flee is to abroad.
Indecent crimes and infringing duty:
Article 121: it shall be punishable by execution every commander of district or
military section convicted with surrender to the enemy, giving order to stop the
fighting without using up all means of defense, or acting without serving the entire
honor and the duty imposed…)
Treason and Conspiracy in the Military:
108
Article 123: (it shall be punishable by execution every Lebanese military, or in the
service of Lebanon carrying weapon against Lebanon)
Article 124: (it shall be punishable by execution every military of land, sea or air
forces:
A- Incites to flee or prevents rallying against the enemy.
B- Sets out, without order of the commanders, to incite to stop the fighting, to
surrender or to join the enemy.
C- Intentionally causes seizing the enemy military pieces placed under his control.
D- makes relations with the enemy in order to facilitate its works...)
Article 129: (it is regarded spy and is punishable by execution:
A- all military entering military site, a military center or military institution or any
other army places in order to obtain documents or information for the benefit of
the enemy or touch the state safety.
B- All military gives the enemy documents or information that would affect the
military actions
C- All military hide himself or through a third party and is aware of the enemies'
spies).
Article 130: (it shall be punishable by execution every military hands over the
soldiers whom are under his control, the site he is charged to defend army supplies
or maps of military sites...)
Looting and Destruction
Article 132: (each military or non-military person engaging in regions of military
operations looting an injured, sick, dead drowned shall be punishable with
provisional arrest. The perpetrator shall be punishable by death if the offender
caused the victim violence acts worsen his condition to facilitate the robbery.)
Death penalty in separate legislations:
Demonstrating the methodology of the Lebanese legislator and adopting the
theory of applying the death penalty, the legislator was keen on legislating such
penalty even when issuing special laws.
Thus, he has introduced tighten amendments to the law on drugs, by issuing (the
law of narcotic drugs and psychotropic substances and precursor) dated
16/03/1998. He has imposed, under Article 140, death penalty on the offender
assailant one of public officers assigned to implement the law, or its resistance by
force during performing his job or due to it, and this leads to the death of the
officer.
The legislator has also legalized this penalty when issuing the law of conservation
of the environment against pollution from harmful wastes and hazardous
materials, issued under No. 64 on 12-08-1988, as amended by Law No. 266 on 0204-1993. Articles 10 and 11 of this Act stipulated the application of the death
penalty (for whoever…imports, enters, acquire or transfer deposits or nuclear
wastes, contaminated with nuclear radiations or contain toxic or hazardous
chemicals to public safety...whoever throws in rivers, canals, sea and other
watercourses harmful substances mentioned in Table 1 attached to this law, and
which lead as a result of their interaction with man, animals and other elements of
the environment to the killing of fish, limiting their reproduction or spoiling them
to be food to humans, or that harms other marine animals and plants…) The law
provided for the application of this penalty to prove the charge and intending the
offender to achieve the result.
109
Not only Lebanese legislator expanded the scope of applying the death penalty in
many Lebanese legislation whether the Penal Code, code of criminal procedure, or
the private laws specified hereinabove, but also he took out the try of certain
crimes from the natural penal jurisdiction and subjected them to exceptional
courts.
He has expanded the circle of military court competence to try the crimes related
to the security of the external and internal affairs of the state under Article 50 of
the Code of Military Justice issued on 13/04/1968 and the permanent military
court which tries the crimes within its competence, including crimes extracted
from the Lebanese Penal Code in their favor, mostly composed of military
officers, and it has the right to pronounce the execution due to trials lacking
justice standards. The political power is entitled to refer certain crimes to the
Judicial Council is composed of five judges, the trial is running before him to pass
his sentences its provisions as peremptory, with the exception of the retrial
according to an amend recently alerted by the Lebanese legislator. Moreover,
provisions of the said Council are contrary to the provisions of justice that impose
running trial on two degrees.
Death sentences issued since the Independence:
Lebanese authorities persisted in the implementation of the death penalty across different
presidential stages, with the exception of the reigns of presidents Charles Helium and Elias
Sarkis when death they were devoid from the implementation of this penalty. What is worthy
to be highlighted is the situation of the Prime Minister Salem Alhess when he refused to sign
the execution decrees in March 2000, which led to the freezing of the death penalty
throughout the period of stay in power.
The attached table shows that the number of the executed over the period in question were 52
persons. The following observations can be recorded:
- The reign of Bishara al-Khuri has scored a record number in the implementation of
death sentences, where 20 people were executed in his reign. The image of executing
the leader Anton Saada with his comrades is a black image in the history of trials,
may be for the speed of execution and implementation, or the political nature of the
crime.
- The reign of President Elias Harawi comes in the following grade, where 14 were
executed from the conviction of the authority with a view to handle the social issues
of security, and which did not perform the desired purpose.
- In the reign of Fouad Shehab, Lebanese courts had sentenced to death hundred people
for offense of military coup attempt on the Lebanese government in the eve of the end
of 1961, and no sentence was executed against those involved in the coup attempt.
- Courts that are trying criminal offenses verified between the Judicial Council and the
criminal courts, and the permanent military court. Noting that the provisions of the
Judicial Council are concluded and , contrary to the standards of a justice trial. Some
of the death sentences issued against them by the Criminal Court were referred the
Penal Court of Cassation. The formation and the proceedings of the Permanent
Military Court have been objections by human rights bodies, despite the fact that its
provisions are discriminatory to the Military Court of Appeal.
- The amnesty laws issued by the Lebanese authorities from time to time are, in turn,
the subject of objection by human rights bodies and civil society organizations,
particularly the Amnesty Law No. 84 date 26/08/1991, which pardoned the Lebanese
war criminals who committed massacres against the Lebanese people.
110
-
The motives for the crimes that have been executed are either political (nationalists
revolution in 1949- their coup attempt against the authority in 1961), due to regional
differences (the killing of Deputy Minister Ibrahem Abboud, or (the assassination of
Sheikh Nezar al-Halabi), or (dealing with Israel), the poverty (theft, legacy, a
financial ransom, partnership dispute...), because of emotional ties or taking revenge
by tribal customs .....
Movement calling for the abolition of the death penalty:
Stages in which Lebanon tackled the text of the death penalty varied between confining
it to what is contained in law of 1943 or expanding the scope of its application,
whenever the country passes security circumstances.
In the wake of the events of 1958, a law known as (Raymond Addah law) entitled
(every murderer is killed) was passed on 11/1/1958, and judged not to grant the
offender the commutation reasons he may deserve. This law was abolished on 05-181965.
On 21/03/1994, Lebanese legislator issued Law No. 302/94, which adopt the principle
of law 1958, and judged the application of the death penalty in intentional crimes (m
.547-548) and political crimes (m. 198), and deprived the judiciary from its discretion
power to grant the commutation reasons.
The application of this law was a black page in the history of Lebanese authority, which
hit the record in the application of the death penalty at this stage...The implementation
began by executing Bassam alMusleh in 23-04-1994, the two Syrian soldiers, Abd
AlKarim Jeck and Mohamed Suleiman Za'tar on 30/04/1994, then executing Shaker
alBareedy on 28-09-1994 and alDerly Hussam Ali Nasser on 12/1/1995, Ahmed Abd
Albadie Halak on 19/09/1996, Anas Shamel Thibyan on 17-10-1996, Mohamed
Mahmoud Core on 18/03/1997, and Khalid Mohammed Hamid, Munir Salah Abboud
Mundhir Alkasm on 25/3/1997, the Egyptian Hassan Jamal Attiya on 02/04/1997, and
both Wessam Naïf Essa Alnbhan and Hassan Nada Abu Gabble on 1998.
The expansion of the implementation of the death penalty infuriated Lebanese society
and objections of the international community, especially after broadcasting the
television scenes of the implementation process, and many children resort to imitate it
on their brothers colleagues in many Lebanese areas.
Lebanese Association for Human Rights realized the gravity of sentences executed, and
its impact on public opinion, as a violation of the right to life, and co-operated with a
group of civil society organizations at the beginning of 1997 to announce the coalition
of civil institutions and power calling for the abolition of the death penalty.
This move has contributed in providing atmospheres calling for the abolition of the
death penalty, and situations of ministers, deputies, spiritual officials, judges and
lawyers came out supporting this request. To the extend that, the Judge, Joseph
Ghamroun, President of the Court of Mount Lebanon, announced his opinion expressly
from the platform of the Bar Association, and many judges recorded the violation of the
death sentences in the resolution issued, among of the judges; Abd AlRahim Hammoud
and Rustum Awad.
The International Committee for Human Rights expressed in a resolution issued on
12/04/1997 its concern about increasing the application of death sentences in Lebanon,
and called for the suspension and abolition of this penalty. The International Amnesty
Organization issued, in turn, series of data and statements condemning the execution of
this penalty. At the European level, a remarkable position of the French government has
emerged when it called the Lebanese Ambassador and Declared its protests for
following Lebanon this approach
111
Therefore, the efforts exerted in this area have a distinct role for the abolition of Law
No. 302/94 under Law No. 332 issued on 02/08/2001, which repealed the provisions of
the old law and re enacted the provisions of the Penal Code Article, which were in force
before the amendment. The abolition of this law was a profit for the civil society
organizations, especially the department of the abolition of the death penalty on
political crimes (m. 198) and intentional crimes (m. 547 and 548), and had returned
jurisprudence its discretion power and the right to commute the judiciary provisions.
Those organizations considered the abolition of the said Law pleading the demand for
the abolition of the death penalty in all legislative texts. The position of former
Lebanese Prime Minister Dr. Salem Alhoss who refused signing new executions
decrees in March, 2000 was another incentive to insist on a demand of the abolition of
the penalty from the legislation.
However, the Lebanese authorities re-executed this penalty again after more than five
years of stop working the law, when they had executed Ahmed Mansour, Badi Hamada,
Remi Za'tar on 19/01/2004. Disposal of the Authority received again widest objections
locally and internationally.
Our association realized that the parliamentary Justice and Administration Committee
are studying new draft law on sanctions which kept the texts to apply the death penalty,
contrary to many parts of the project on issues of human rights. Therefore, it formed an
alliance under the name (human dignity Forum) including also the Democratic
Women's Caucus, the special freedoms foundation, International Amnesty Organization
(Lebanese groups). The Forum has concluded its work by organizing a workshop on 1617/ 05/2003, in which a group of researchers participated showing defects of the
advanced project, and claiming to introduce amendments that would are likely to
consider the reformist side in applying new Penal Code, taking into account the
international standards. Works of the Forum were published in a book entitled (human
dignity in the penal code). Committee of Administration and Justice stopped after that
to consider the project.
These atmospheres prevailing the Lebanese society and movements of bodies and
societies of civil organizations were culminated with the draft law for the abolition of
the death penalty and replacing it with hard labor for life. The draft law involved in its
first article (first clause of Article 37 of the Penal Code shall be canceled and replaced
with the following:
"Hard labor for life- not liable or subject to any reduction or commutation reason"
Article II replaced the death penalty wherever stipulated by the penalty specified in the
amended section I of the Article 37 of the Penal Code) this draft has been signed by the
deputies: Naila Moawed, Nabil De Freij, Dr. Marwan Fares, Dr. Salah Hanen, Misbah
Al-Ahdab, Bassem alSabaa, Henri Helou. It was submitted to the parliament on
30/06/2004, however, it was filed in the drawers of the said council.
In order to effectuate the movement of the National Campaign for the abolition of the
death penalty, it was decided to form a coordinating body comprising in addition to the
Lebanese Association for Human Rights each of the following: the people's rights
(National Authority for Civil Rights), justice and mercy, justice, Lebanese groups for
the International Amnesty Organization, Office of Justice (Progressive Socialist Party).
The latest or our efforts is signing the representatives new bill:- The draft law proposal
to abolish the death penalty wherever it is mentioned in the Lebanese law, and replacing
it with life imprisonment or life detention with the possibility to benefit from Article 4
of Law No. 463/2002 signed by representatives: Michel Mussa, Marwan Farris,
Ghassan Mkheiber, Ibrahem Kanaan, Akram Shuhaib, Salah Hanen, Abd Allah
112
Farahat... The new draft law is pending in wait to solve the knot of the current meetings
of the assembly.
113
Conclusion
The legal systems of different various legislations have specific exalted intent representing in
the development of lifestyle of human in the construction and upgrading of civilization. The
basic objective is protecting human rights, indivisible by law.
From the inalienable general principles and objectives, legislations shall be humanized and kept
it away from the vengeful standards of snubbing and violence by legislating punitive approach
and drafting it to suit the logic of tolerance and reform, which impose on the society dealing with
the impious child on level of patient child to correct and rehabilitate his behavior through a bet
on his good conscience deriving from the elements of his good and inherent identity inborn with
him since the moment of opening eyes to life. Such identity was corrupted by the acquired
external factors resulting from the social environment and difficult living conditions for some
whose immunities weakened towards these corruptions and atrocities and push towards the
commission of the crime.
Handling criminal issues can not be carried out away approaching the causes and circumstances
of the commission. The legislation is taking service-oriented reform of society and man, and
laws are ultimately targeting for the protection of human rights, above all the right to life, as a
gift from God, not of any individual or authority to control or self-determination under the
retribution of the criminal and sentenced him to death.
The time has come to abolish this penalty from the legislative texts in Lebanon, as well as
reconsider the legal penal code in all its aspects by establishing new Penal Code, canceling
exceptional and special courts, attaching prisons to the Ministry of Justice, activating the
implementation of the Penal Code, reviewing the Code of Criminal Procedure Law...and taking
steps towards ensuring the independence of the judiciary.
We believe that Lebanon deserves penal regulations consistent with the attitudes of modern
justice that takes into account the principle humanize penalty.
in this corner, we highlight the most prominent headings relating to the abolition of the death
penalty.
Problems relating to the abolition of the death penalty, and the reasons
We can not deny that this issue is problematic in Lebanese society, like other societies which did
not reach a final result. This is due to the diversity of philosophical and social opinions and
ideas, and cultural backgrounds.
The most prominent headlines:
1- Privacy Pretext:
This objection is often raised, disables the effect of international legislations and prevents the
draft of its provisions in national laws. Opponents of the abolition of the death penalty allege
with religious sanctity sometimes and with customs and traditions other times.
Christianity has settled this issue when the "Vatican" abolished the death penalty completely in
1969, when Pope of Rome apologized at that time for the executions implemented in the
previous history.
While Islam has encouraged pardon, as evidence in the Quranic verse that: “We ordained their in
for them: life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for
equal. But if anyone remits the retaliation By way of charity, it is an act of atonement for himself.
And if any fail to judge by what Allah has revealed, they are wrong doers.” (V. 45)
And in His saying that: “O you who believe! The law of equality is prescribed to you in cases
of murder: the free for the free, the slave for the slave, the woman for the woman.
Nevertheless, if the brother of makes any remission the slain, then grant any reasonable
114
demand, and compensate him with handsome gratitude. This is a concession and a mercy
from Your Lord. After that whoever exceeds the limits shall be in grave penalty.” (I. 178)
Pretext of customs and traditions, revenge, social conditions:
Among pretexts of justify the implementation of the death penalty is cutting the road to
retaliation from the offender or his family. This argument is failing because the process of
vengeance is among the deep rooted customs and traditions in the structure of the developing
society, and in the environment that glorify violence and make it synonymous to heroism and
honor. Executing the penalty by the state puts it in the place of the vengeance on behalf of the
individual and under the name of the society, which bears the sin of an inappropriate act, and
brings down the quality of fatal or vengeful State.
Inability of the political crew in Lebanon for the treatment of conditions in all its aspects, and
radically, to find effective solutions to dilemmas of sectarian and political divisions, which
destroy the body of this nation, as well as wars and violent aspects have contributed in providing
a fertile environment for crime and caused damage, destruction and casualties. Such deficiency
of the treatment is the main reason in the spread of the phenomenon of crime. The State has to
prevent the causes of crime by eradicating poverty centers and violence and tension places
instead of executing the murderer.
Security pretexts:
Despite all the security conditions experienced by Lebanon, especially bombings and
assassinations which swept its arena in recent years, it has committed to the Security Council
resolution No. 1644 to the formation of an international tribunal to litigate the murders of the
former Prime Minister Rafiq Hariri and his comrades. The provisions of this court against those
proved guilty in this crime or in other crimes associated and parallel with it will be less than the
death penalty because International laws refuse working with this penalty. The State must
emerge from the case of duplication and double standards and abolish the death penalty.
it has been noticed, on the other hand, that the amnesty laws issued in Lebanon which policy
subjects are criticized severely by the civil society organizations, particularly those that have
committed war crimes and massacres in the Lebanese war and were rewarded for their crimes by
assuming senior positions in the State. It is also obvious that pardon had included those who
were charged before the Justice Council in 2005, in the aftermath of al-Dinniyah, who are now in
the ditch of expiatory ancestor movements whose names were on top of the last events of
Albared camp/ Tripoli.
In the end we believe that Lebanon, Lebanon who has expressed its commitment to international
covenants and entered into a partnership with the European group, has to adopt the public course
of the States which have abolished the death penalty, and declares its accession to the Optional
Protocol II of the International Covenant on Civil and Political Rights, and abolishes the death
penalty from all legislative texts for its futility and its impact on the criminal acts.
A detailed table showing death sentences in Lebanon
1. Death sentences executed in Lebanon
115
1. Sentences executed in the age of President Bishara Al Khuri
No.
Name
Marital status
Charge
1. 1Ismail Dalah
Altitude
2. 1Said metri Latouf
3. 2Ali Hassan Ammar
John, aged 35,
married and has a
son, a soldier
released from the
French army
Unmarried
4. 3Yousef Sa'ada
-
5. 4Victor Hanna Awad
Jubil, 35 years
6. 5Charl Basha
Dumas, 25 years
old, married
7. 6Anton Khalil Sa'ada
Shoer, 45 years old,
and married and has
three daughters.
Founder of the
National Social
Party
Court and date of
execution
killed the Priest Habib Khashfa South crimes
after abducting him and torturing 1947/05/09
him
killed Elias Astfan from the same Crimes away
town, for sick relation with the 1947/12/11
wife of a rich man (Ferial Al-Hajj)
by the instigation of the latter for
payment
Raping a minor and killing her
Beirut crimes
1948/10/09
Killed Gergy Abu Khalil
Beirut crimes
1948/11/11
Killed the prostitute Antoinette Beirut crimes
Najar slaughtering and Joseph and 1949/01/31
Emily Awad Aintori
Killed his father Dr. Antoine Pasha Trebles crimes
by the help of his brother and 1949/02/16
mother, who were reduced
sentences
The call for armed revolution and The permanent
the seizure of governance
military court
1949/07/08
116
Decree, place and means of
execution
Beirut – hanging
1947-12-10/10653 hanging
in the courtyard of Al Raml
prison
Hanging in the courtyard of
Justice palace
Hanging in the courtyard of
Justice palace
Hanging in the courtyard of
Justice palace
Hanging in the courtyard of
Justice palace
1947-7-7/15529
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
8. 7Shebl Boutros Nasif
26 years old,
unmarried
Killing Mansour Wakim in Al Beirut crimes
Dakwana
1949/07/12
9. 8Adib Samaan Al Gada
Palestinian, 19 years
old, married
10. 9Ma'rouf Mohammed
Muwaffaq
Monastery Kobel,
25 years old, and
married and has
three boys the third
one was born at the
day of his execution
Alrajenh Tower, 32
years old, married,
has three children
Palestinian, 23 years
old, unmarried
Participated
in
the
revolution carried out by
Saad
Participated
in
the
revolution carried out by
Saada
11. 1Abdul Hafeez Alama
0
12. 1Abbas Abdel Raouf
1Hammad
13. 1Mohamed Ibrahim
2Shibley
14. 1Muhammad Ahmad
3Zughbi
15. 1Malham furniture
4
16. 1Ta'an Zuatir
5
Palestinians (Haifa),
24 years old,
unmarried
Syrian (Gazala), 25
years old, unmarried
Participated
in
revolution carried
Saada
Participated
in
revolution carried
Saada
Participated
in
revolution carried
Saada
Participated
in
revolution carried
Saada
armed The permanent
Anton military court
1949/07/20
armed the permanent
Anton military court
1949/07/21
the
armed the permanent
out by Anton military court
1949/07/21
the
armed the permanent
out by Anton military court
1949/07/21
the
armed the permanent
out by Anton military court
1949/07/21
the
armed the permanent
out by Anton military court
1949/07/21
Killed Hanna Al Kosaify and his
son Doumit
Killed Hanna Al Kosaify and his
son Doumit
117
1949-7-11/15572
Hanging in the courtyard of
the Palace of Justice Beirut
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
Shot in shooting field, Bir
Hasan, Beirut (sentenced
by the military court)
1949-7-20/15692 Shot in
shooting field, Bir Hasan,
Beirut (sentenced by the
military court)
Hanging 1951
Hanging 1951
17. 1Mustafa Mohammed
6Khawaja
18. 1Musa Musa
7
19. 1Jamil Wakim Younis
8
Hanging 1951
killed Georgette Abu Bishara
Hanging 1951
1952-6-20/8740 Hanging in
the courtyard of the Palace
of Justice Beirut
20. 1Elias Saad Allah Abu
killed
Fouad
Al-Zoghbi Crimes away
1952-8-5/9031
9Khalil
deliberately
1952/08/06
Hanging in the courtyard of
the Palace of Justice Beirut
- Decree of the execution of Said Latif signed by the acting deputy of the Prime Minister and Gabriel Murr and minister of Justice Ahmad Husseini.
- Decrees of the execution of Ali Ammar, Yousef Sa'ada, Fathi Awad, Charl Basha, signed by Prime Minister and Minister of Justice Riyadh al Solh
- Decrees of execution of Anton Saada and his colleagues singed by Prime Minister and Minister of Justice Riyad Al Solh and Minister of Defense,
Majid Arslan.
- Decree of execution of a Gamil Younis and Elias Abu Khalil signed Prime Minister Sami Al Solh and minister of Justice Fuad Al Khuri.
2. sentences executed in the era of President Camille Chamoun
1
Mahdy Abbas Al Shel
Baalbek, 25 years
killing the minor Mohammed
Zahla crimes
1953-6-24/2184
old, married
Hussein Abdullah for theft
1953/06/26
Hanging in the courtyard of
the Palace of Justice Beirut
2
Mohamed Mahmoud Al
Akkar
Killed Mohamed Al Aboud
Justice council
1953-12-2/4128
Sheikh
1953/12/03
Hanging in the courtyard of
the Palace of Justice Beirut
3
Khamis Ahmed
Palestine
Dealing with Israel and placing
Justice council
1955-2-2/8311
Bayoumy
explosive materials in various
1955/02/03
Hanging in the courtyard of
places led to casualties
the Palace of Justice Beirut
4
Habib Ramzy Al Sayegh
5
Ramzy Fayad
-
killed the minor Ghazi Khawaja
-
Beirut crimes
1952/06/21
killed a restaurant owner Gardinia
with her daughter for theft
killed a restaurant owner Gardinia
Beirut crimes
1957/06/06
Beirut crimes
118
Hanging in the courtyard of
the Palace of Justice Beirut
Hanging in the courtyard of
Magid Mahmoud Safy
with her daughter for theft
Killed for revenge
1957/06/06
Justice council
1957/07/06
the Palace of Justice Beirut
1957-7-4/16458
Hanging in the courtyard of
the Palace of Justice Beirut
- Decree of execution of Mahdi Al Shel signed by the Prime Minister Saeb Salam and Minister of Justice Mohiuddin Al-Nasouli.
- Decree of Mohamed Al Sheikh signed by Prime Minister Abdullah Yafi and Minister of Justice Bashir Al Aouar.
- Decree of Ahmed Khamis Al-Bayoumi signed by the Acting deputy of the Prime Minister Gabriel Murr and Minister of Justice Charl Helou.
- Decrees of execution of Habib Al-Sayegh and Ramzi Fayyad and Majid Safy signed by and the Prime Minister Sami al-Solh, and Minister of
Justice Gamil Bayan.
3. sentences executed in the era of President Fuad Shehab
1
Ibrahim Al Nabelsy
Beirut
Participated in the incidents of
Justice council
1959-4-15/994
1958, and killed for sectarian
1959/04/16
Hanging in the courtyard of
reasons Rashid Shalala, Boutros Al
the Palace of Justice Beirut
Ra'is and George Saad and threw
their bodies in a well
2
Ibrahim Raga Al Azizy
Jordanian –
The killing of his fiancée Fatma
North crimes
1960-2-8/3238
Palestinian
Abdul Razzaq in for separation
1960/02/10
Hanging in the courtyard of
the Palace of Justice Beirut
3
Gamil Gergy Saad
Rahma Akar,
killed Asad Karam and Abdullah
Nourth crimes
1960-9-5/5038
married and has
Saad, for legacy discord
1960/09/06
Hanging in the courtyard of
three children
the Palace of Justice Beirut
4
Wahby Hassan Beram
Al Werdania, single, Alhaji Mustapha - revenge killing
the permanent
1960-10-1/5175
soldier in amry
military court
Shooting in Dania
1960/11/05
- A decree of the execution of Ibrahim Al-Nabulsi signed by Prime Minister Rashid Karami and Minister of Justice Hussein Al Uwaini.
- A decree of the execution of Ibrahim Al Azizy signed by Prime Minister Rashid Karami and Minister of Justice Philippe Takla.
- a decree of the execution of Jamil Saad, and Wahoby Bairam signed by Prime Minister Saeb Salam and the Minister of Justice Nasim Majdalani.
4. sentences executed in era of President Soliman Faranjia
1
Adel Ibrahim Halawy
Married
killed Al Haji Mustapha Al
South crimes
Hanging in the courtyard of
6
119
2
George Tawfik Raad
21 years, single,
worker
3
Tawfik Mohamed Ali
Eitany
Beirut, 61 years
Kheshen and discarding his body in 1971/06/27
a well in Ein Batoulih motivated by
greed in his wealth
Killed George Rezk after robbing Trebles crimes
him
1971/07/28
Sida citadel prison
1971-7-24/1604
Hanging in the courtyard of
Sida citadel prison
1972-6-16/3430
Hanging in the courtyard of
Sida citadel prison
Killed his cousin Hassan
Lebanon mountains
deliberately for partnership reasons crime
and discarding his body in an oven 1972/06/17
for smelting iron
- A decree of execution of Adel Halawi, George Raad signed by the Prime Minister Saeb Salam and Justice Minister Jamil Kébé.
- A decree of execution of Tawfiq Itani signed by Prime Minister Saeb Salam and Justice Minister Bashir Aouar.
5. sentences executed in era of President Amin Al Jamil
1
Ibrahim Taraf
Dabin, 36 years old, killed Matilda Halu and her son
Beirut crimes
1983-4-6/437
unmarried
Marcel Bahot and cut their limbs
1983/04/07
Hanging in Sana'e park
and throwing them various
locations
- decree of execution of Ibrahim Tarraf signed by Prime Minister Shafik Wazzan and the Minister of Justice Rogai Shikhany.
6. sentences executed in era of President Elias Al Hawary
1
Bassam Saleh Al Mosleh Yarin, 22 years,
raping Mariam Mohsen and killing South crimes
1994-4-21/5076
single
her in Al Qasimiyah, 8 years old
1994/04/23
Hanging in the courtyard of
Justice palace in Sida
2
Abdel Karim Hegaig
Syrian (Halab),
killed the two brothers Jalil,
Justice council
Hanging in the courtyard of
single, 27 years
Ghassan Antonius, for robbing a
1994/05/04
Justice palace in Abda
jewelry store
3
Mohamed Salman Zatar
Syrian, singl, 25
killed the two brothers Jalil,
Justice council
1994-4-28/5120
years
Ghassan Antonius, for robbing a
1994/05/04
Hanging in the courtyard of
jewelry store
Justice palace in Abda
4
Shaker Mohamed Omran Ersal, 35 years,
killed 3 member of the internal
The permanent
1994-5-26/5176
120
Al Baridy
married and has 4
girls
security in Shtoura: Shawki Aun,
Mustafa Harith, Nadim Al
Moalem, of the Anti-Narcotics
Bureau during raiding the house of
the killer
5
Hussam Ali Nasser
Nabi Shit, 27 years,
single, Derky
6
Ahmed Abdel Badi Al
Hallak
7
Hussein Kasem Awada
Berga, 44 years,
married and has two
children
Balbak
7
Ons Zebian
Al Shouf farm, 27
years, single
8
Khaled Mohamed
Hamed (Abu Ebaida)
9
Monir Salah Abboud (Al
Shares)
Iraqi, 27 years,
single, worker, a
member in Ansar
group (Abu
Mahgan)
Palestinian (Al
Tira), 27 years,
single, worker, a
member in Ansar
group (Abu
Mahgan)
Killed Omar Abul Hassan and The permanent
stealing his car
military court
1995/01/12
Dealing with Israel and blowing up The permanent
an explosive in officials in
military court
Hezbollah in Beirut suburb
1996/09/21
Killed a mother and her two sons
Zahla crimes
1994/02/07
Kill the general officer during
The permanent
raiding a security team to arrest
military court
Zebian for killing his fiancée Nora
Hamadeh
1996/10/17
The assassination of Sheikh Nizar
Justice council
Al-Halabi (Projects Association),
1997/03/24
with his companions, Ramadan Al
Tabsh and Nabil Dou and his minor
son Bilal
The assassination of Sheikh Nizar
Justice council
Al-Halabi (Projects Association),
with his companions, Ramadan Al 1997/03/24
Tabsh and Nabil Dou and his minor
son Bilal
121
military court
1994/05/28
Shooting in the courtyard
of Dark Shatora center
1995-1-11/6210
Shooting in the courtyard
of Romia prison
1996-9-18/9171
Shooting in the courtyard
of Romia prison
Hanging in Khawam hotel,
Antias
1996/10-15/9356
Shooting in the courtyard
of Romia prison
Shooting in the courtyard
of Romia prison
Shooting in the courtyard
of Romia prison
10
Ahmed Monzer Al Kasm
(Omar Al Shamy)
Beirut, 24 years,
single, a university
student in Ansar
group (Abu
Mahgan)
Al Bedawy, 32
years, worker
The assassination of Sheikh Nizar
Justice council
Al-Halabi (Projects Association),
with his companions, Ramadan Al 1997/03/24
Tabsh and Nabil Dou and his minor
son Bilal
11
Mohamed Mahmoud
Killed
Mahmoud
Mansour Trebles crimes
Kour
deliberately motivated by a revenge 1997/03/17
for his cousin
12
Hassan Gamal Ateia
Egyptian (Tanta), 41 Killed Naseeb Malouf and his wife Lebanon mountains
years, married and
Linda by a stick in order to steal
crimes
has two daughters,
and threw their bodies in a well in
1997/03/26
worker
the home garden
13
Wesam Nayef Al
killed Sharbal Antoine Sakim and
Nabhan
Mary Al Am
14
Hassan Al Nada Abu
killed Sharbal Antoine Sakim and
Gabal
Mary Al Am
- all decrees of executions had been signed by Prime Minister Rafik Hariri and Justice Minister Bahij Tabbara
7. sentences executed in era of President Emil Lahoud
1
Ahmed Mansour
From the south, 50
Committed a massacre against 8
Justice council
years old, an
persons on July 31, 2002. Maroun
2004/01/17
employee in the
Nassr Tuma, Maria firm, Ughait
Social Security,
Faghaly, Rachel Alouhmh, Saada
married
Musa Al-Shuwairi, Calos Salama,
Suleiman Jamus and Sakina
Harkos. Also, with attempting to
kill other four people injured by
bullets from a rifle, for paying back
a payment he had received from the
Fund
122
1997-3-21/10047
Shooting in the courtyard
of Romia prison
1997-3-13/9971
Shooting in the courtyard
of Romia prison
1997-3-26/1082
Shooting in the courtyard
of Romia prison
Hanging in the courtyard of
Tabraha 1998
Hanging in the courtyard of
Tabraha 1998
Shooting in the courtyard
of Romia prison
2
Badia Hamadi (Abu
Obida)
Lebanese, 30 years
old, a fiancé, joined
the group of Al
Ansar, in a suburb of
Sidon
3
Rimy Zatar
Lebanese, Zahle,
unmarried
killed 3 members of the internal
security forces during their attempt
to arrest him in 07-11-2002, they
are Hamza Al Areef, Radwan
Milhem, the soldier Ali Saleh
The permanent
military court
2004/01/17
Shooting in the courtyard
of Romia prison
Killed Members of the civil
The permanent
defense and security after stealing
military court
funds transferred from the Bank of
2004/01/17
Lebanon
4
Fady Merash
Soldier in the Army Killed the minor Aisha Mohammed South crimes
by fire after he deceived her to
2004/01/17
marry her after having sex with in a
location close to the Monastery of
Belmond 17/10/1998
- all decrees of executions had been signed by Prime Minister Rafik Hariri and Justice Minister Bahij Tabbara
Shooting in the courtyard
of Romia prison
123
Shooting in the courtyard
of Romia prison
2. Executions pending before the Court of Cassation have not executed and some of
them have been dissolved
1. Elias Hanna Al Sbaali, killed his wife Claudette Yazbek with two children,
Jean and Gilbert at his home in Bikfayya burning on 02/22/1993.
2. Abdul Halim Abara, a Syrian, killed Eng Walid Jubeili in Bishamoun and
robbed him in 01-28-1996.
3. Fadi Malouf, killed Lina Haddad in Vitron 10/05/1992, and sentenced in
absentia in the same offense by the criminal court of Mount Lebanon the
offender Lucian Makhoul. The attempt to kill Joseph Abboud and Ghazi Atef
Yamin in Ballouneh after robbing them.
4. Fuad Michel Shahin, killed Philip Al Gahel and throwing him in an oven.
5. Ahmed Mahmoud Rifai, killed Philip Al Gahel and throwing him in an oven.
6. Fadi Abdo Habash, killed Philip Al Gahel and throwing him in an oven.
7. Ghazi Abdul-Hussein Dabbuq, killed Hussein Mahmoud Rahal and Sana'a
Mohammed Shaheen, and Essam Mohammed Shahin and their mother Samia
Shaheen in their home in the tomb of Shmon-Alia.
On the other hand, there are many sentences pronounced in absentia against the offenders
fleeing from justice to death penalty in absentia against them. The most prominent of them
are Ahmed Abdel-Karim Saadi known as (Abu Muhjin) responsible for (Al Ansar Salafist).
He attempted to assassinate Sheikh Nizar Al-Halabi President of the charitable Projects
Association with others, and with the participation of Ahmad Munzir Al Kasm and Munir
Salah Abboud and Khalid Mohammed Hamid, who were executed on 21/03/1997.
3. Executions pronounced and have not been executed because of the amnesty on
26/08/1991
1. Ibrahim Haidar, killed Dr. Jamil Albergi in Amion, North crimes, 11/02/1972
2. Ali Khedaro killed Mr. Ahmed and Mohamed Latifa in Trebles, Criminal Court north,
20/03/1972.
3. Kamal Shehada killed Fawzia Kamal Nasser, South crimes, 05/05/1972.
4. Ayub Qassim, killed Ghazi Mohammed Saleh, the southern Criminal, 24/07/1972.
5. Mansour Al-Hakim, killed Almaza Ibrahim, the South crimes, 11/08/1972
6. Mahmoud Chamma, killed Mustafa and Adla Al Mir, North crimes, 13/11/1972.
7. Mahmoud Salloum, killed Ghassan Gawdat Shabou, Ashrafieh, Beirut crimes,
29/12/1972.
8. Wagih Al Sayed, killed Rateb Hiphus, North crimes, 15/02/1973.
9. Muhammad Diab Al-Haj Hassan, North crimes, 14/04/1973
10. Ahmed Abdel Gawad, killed Mustafa Al Hallak, Trabeles, north crimes, 02/05/1973.
11. Ahmed Elow, killed Abdullah Elow, North crimes, 11/07/1973.
12. Reda Jawad Hamza, North crimes, 15/02/1974
13. Redaa Ghaddar, South crimes,
14. Samih Al-Zein, killed Abdullah Adel Usseiran, the Judicial Council
15. Imad Shehadeh, North crimes, 22/05/1975.
16. Jaafar Sarhan, South crimes, 24/05/1975.
17. Mustafa Ibrahim Sarhan, crimes of murder, 24/05/1975
18. ustafa Sheikh, crimes of murder, 18/01/1983.
19. Dib Nasser Eddin, crimes of murder, 30/04/1980.
20. Saleh Hussein Saleh, crimes of murder, 11/11/1980
21. Abdullah Serkis Anton, crimes of murder, 19/11/1981.
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The Lebanese war led to the escape of all sentenced to death and the non-implementation of
the penalty against them as they took advantage of the Amnesty Law No. 84 Dated 08-261991.
4. Executions ratified by the Amnesty Commission until 11/12/2003
-
-
-
-
-
Amnesty Commission completed represented in the Supreme Judicial Council the
consideration of all files of all offenders sentenced to death, who are 28 files. It
ratified all files after the passage of more than 5 years without being resolved in the
Palace of Justice. The Prime Minister Salim Al Hoss, had abstained from signing the
decree of the execution of two people together, so the application of executions
stopped in his age after the several executions during the age of President Elias Al
Harawi.
The Committee recommended the acceptance of some demands of amnesty for some
sentenced persons to death and the replacement of the penalty to hard labor. Among
those who recommended the replacement of their sentences was Hamad Idris Al
Shaye from western Bekaa who is accused of killing Ibrahim Abu Hamdan, Amira
Abu Hamdan, and Mahmoud Reda Yassin accused of killing Fatma Khalil in 1994 by
a knife following monetary problem.
One of the most notable sentences approved by the Amnesty Commission those of
Ahmed Mansour, Abdel-Badie Hamadeh, Remi Zaatar, Fadi Mrash, as death penalty
was carried out against them on 17/01/2004.
The other death sentences approved by the Amnesty Commission and have not been
implemented are the following:
Jamal Dib Amin murderer of his daughter Wafa in the valley of Abba Kharag Al
Zraria on 10/12/1999 and robbed her money and her jewelry and threw her body
away.
Abd Bashir Al-Ashqar for the attempt deliberately to kill Nouf Ahmed Mohammed
and slaughtering her in Akkar
Marhaf Hassan Basis, a Syrian nationality, Medhat Khalil Hassan Ahmed, Maher
Abdel Hayy Hussami, Yahya Riyad Al Rayes, Al Arif Milad Mansour, Ahmed
Hassan Sharafi, Elias Habr Jurji, Mohamed Abdel-Halim Abara, Sam Mohammed
Bashir Mohamed Ali, Zine El Abidine Ibrahim Ganbain, Askin and Bisei Makerian,
Qassim Mohammed Qubeisi, Ali Mohamed Al Kadour, Khaled Nayef Za'rour,
Muhammad Ali Al Ashek, Leila Laboura Ketchi, Ghazi Maher Badr, Medhat Hassan
Khalil and Noureddine Al Dawood.
5. Executions carried out by militants
1. Amal Movement executed Hatem Naim Kanaan by shooting him for the attempt to
kill his aunt in 06-13-1987.
2. Al Tahrir Battalion executed Rafiq Husseini in Trebles for the attempt to kill Khalil
Akkawi.
3. Nasserite Popular Organization in Sida executed Mahmoud Hassan in 6/15/1988 for
the attempt to to kill Yoseph Kazem Al Samra for personal reasons.
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4. A division in (Lebanese Forces) sentenced Samir and Ghassan Lahoud to death by
shooting them on 06/01/1988 on charges of attempted murder of Samir Geagea and
Karim Baqradouni.
5. Police security in the Nasserite Popular Organization executed Jamil Subh and the
Palestinian citizen Farid Ahmed Salim for killing Druze and robbing his store in Ein
Aldalb.
6. Amal Movement executed Haider Asmar in 11/06/1990 for killing Nasser Abu Khalil
and robbing him. In addition, Abdullah Al Asmar from Tair Daba was executed for
killing Hany Jolany and robbing him. Additionally, Walid Kurdi was executed in the
yard of Husseinieh in Nabatiyah for killing Ali Abdel Ghani Al Hajj after kidnapping
and robbing him and throwing his body away on the road Kfar Rumman - Habbush.
Rafik Sanaa from Kafor town for the murder of the police officer Ali Hussein with
two members in Amal movement they are Haitham Halawi, Ali Sbeiti. Abbas Zaher
also was executed by firing for attempting to bomb two cars the first one in Mahelat
Al Raml and the second one in Abbasiyah on 25/10/1990.
7. Hezbollah executed thirty people, including three girls for dealing with the Israeli
enemy and blowing up explosive devices and booby-trapped cars.
8. Progressive Socialist Party executed seven people by shooting for killing persons after
abducting them and the last one was Bahij Alkmend.
9. Hezbollah executed Balbaki Hussein Assem Awadah on 04/02/1994 on charges of
entering the home of Zohair Younis Nasreddin in the town of Durres South Baalbek
for robbery and theft, which led to the killing of 13-year-son and his brother 10 years
and mother Maha Alkis 35 years and injured the daughter Zeinab 3 years as well and
the Liberian servant Emmanuel Sebulin. The families and clans of Nasrralden
Awadah released a statement expressing their desire to punish legitimately Hussein
Awadah. The Hezbollah executed him by shooting in Baalbek openly and in full view
of judicial authorities and political official, without any sign of them in order to
preserve the prestige of the legitimate authorities.
126
Death Penalty in Morocco
127
Introduction
At the time of recording escalation in the trend towards the abolition of the death penalty on
the global arena, we find that the Arab world is one of the most important areas where death
penalty have not been abolished yet. Apart from Djibouti, which abolished the death penalty
that is still in all the rest of Arab states, the twenty one that keep this penalty within the penal
codes, and even include states heading the execution of this penalty? Furthermore, no Arab
country had ratified the Optional Protocol II of 1989 claiming for the abolition of the death
penalty.
However, it is constructive to record that the debate about the issue of the death penalty
which was one of the taboo topics up to near yesterday, it penetrates today most Arab
societies, and voices resound to advocate to its abolition or its frozen waiting for the opening
of a general debate, or at least reduce the field of the implementation.
Generally, we can say that the debate on the death penalty has also imposed itself and it puts
argumentations and queries on handling it by some for its necessity to combat crimes and
create a communal balance sought by justice. To others, it conflicts with the stated policy of
the conventions and covenants of human rights, mainly including the right to life, making the
United Nations Agency allocate an important report in 1962. Adding that, the debate has
swept the field of punitive policy and is centralizing around the fundamental inquiry: does the
community have the right to deprive those who violate systems from life? Whether the only
response to violence is violence? If the penal system protects the public interests of the
society by incriminating acts of aggression, as the utmost and ideal objectives of the penalty
tended to reform, is not the justice entitled to give the offender a chance to expiate his
behavior?
The highest right to be inherent and protected for man is the right to life. therefore the appeal
to review the death penalty is not for defending the criminal, but for the fact that treating
crime can not be made through approving the legislation the death penalty, however it is
better to preclude and transform the offender from propensity for criminality implanted in his
personality to his voluntary, spontaneous and progressive integration in the society with
alternative values and assessment set him apart from any act the community identified by the
legislator in the square of socially and legally castaway act.
The anti-death penalty movement had greatly developed in the last few decades due to the
spread of movements defending for the rights of woman and child, and calling for peace…the
matter that contributed in developing the universal cultural awareness for better social life,
and growing and strengthening this awareness, which led to the emergence of movements and
organizations calling for the abolition or the opposition of the death penalty in many
countries of the world and in the Arab world. Therefore many national coalitions emerged for
opposing the death penalty as in Lebanon, Jordon, Egypt, Tunisia and Morocco.
Decades ago in Morocco, Moroccan legal voices advocated for the abolition the death
penalty. It is worthy mentioned in this respect that the first initiative in Morocco represented
in the containment of the National Covenant on Human Rights declared by five legal and
professional associations on December 10, 1998, the covenant that expressly claimed for the
abolition of the death penalty. It could be said that with boldness and courage of these noble
attitudes, such requirement has just succeeded recently as being included in some legal
associations within their basic laws and confirmed in a set of statements, reports and
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conferences.
Before introducing the series that claims for the abolition of the death penalty in Morocco, we
will stand at the legislative side by reviewing its legal texts relating to the death penalty and
the execution, and then displaying the most important stations defined and executed by these
laws in terms of sentences given, to attain finally the future prospects.
Part I
Death Penalty in Moroccan Legislation
Morocco has acceded to the United Nations since the dawn of independence (1956), and
adopted the Universal Declaration of Human Rights which provides in Article 3 for the right
of everyone to life.
Constitution of 1992 has confirmed the adherence of Moroccan State to human rights as
universally recognized as being stated in its preamble: "pursuant to the necessity of including
its work in the framework of the international organizations, it pledges to commitment of
what is required by their covenants of principles, rights and duties and confirms its
persistence in human rights as being internationally recognized."
Ever since, Morocco has endorsed a series of international conventions which provide for the
respect of individual's right to life and security on his person, and ratified "International
Covenant on Civil and Political Rights" since January 2007 (endorsed in 1979), which
stipulates in Article 6 that "right to life is an inherent right of every human being."
However, Morocco has not endorsed yet the Optional Protocol II attached to the
International Convention on Civil and Political Rights aiming at the abolition of the death
penalty which was accredited by the General Assembly of the United Nations, resolution No.
44/138 on December 15, 1989. The covenant which is regarded the first binding stipulations
for the abolition of the execution.
Moroccan Penal Code provides for execution to punish many serious offences, at the advance
of which attacking on the king and royal family, external or internal security of the State,
severe violent assault on people and flaming fire. Moroccan penal system did not know any
amendment which is likely to reduce the existence of such penalty, yet what happened
recently revealed the increase in the number and type of these crimes through the
amendments on fighting terrorism in 2002, which opposes the attitude stipulated in resolution
77/2002, and approved by "Committee for Human Rights" subordinating to the United
Nations in April of the same year on the death penalty. The resolution calls upon all states
that still execute the death penalty to steadily limit the number of crimes which may impose
such penalty.
To put this through various Moroccan laws relating to the death penalty,
A – On level of legal prohibition:
---------------------------------------------Moroccan constitution imposes death penalty, one of the original criminal penalties, on many
crimes that are regarded serious in themselves or combined to certain conditions. We find this
in many crimes of Penal Code passed on Jumada II 18, 1382 A.H. corresponding to
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26/11/1962 in accordance with ordinance No. 270-56-1, dated in Rabiaa II (10/11/1956) and
in law No. 03.03 on combating terrorism and supplemented to chapter 218 of the criminal
code referred herein, as well as the ordinance on suppression of crimes touching safety of the
nation.
It could be argued that number of cases sentenced to death according to the four laws
mentioned exceed 600 cases on the ground that each article of the laws refereed hereto
includes several cases, some of which are more than 200. Therefore, Penal Code implies: 283
cases where death penalty stipulated therein, and included in 28 chapters of this law and
relates the following offences.
1- Penal Code
Crime
Assault on the life of king or the person.
Assault on the life of crown prince.
Assault on a member of the royal family.
Dishonesty at time of peace or war.
Treason at wartime.
Espionage.
Instigate to commit crimes stipulated in chapters 181-182.
Touch the safety of foreign affairs of the state or engage in inflicting
damage on the unity of Moroccan territory at wartime.
Crimes of touching the safety of internal affairs of the state.
Touching the safety of internal affairs of the state (all persons
involved in the gang without distinction between grades.)
Instigate to touch the internal security by and between civil
authorities or military bodies.
Violence resulted in death intentionally.
Perjury led to death sentence.
Premeditation murder in aggravated circumstances.
murder with premeditation and laying in wait.
Premeditation murder of an ascendant.
murder new born child deliberately.
The crime of poisoning.
Torture for the implementation of a felony.
Wound, beating, violence, abuse, and deprive with intention to cause
death.
Child's ascendants, guardian or custodian responsible to take care of
him.
Emasculation felony resulted in death.
Physical torture of the person abducted, arrested, in custody or
reserved.
Come to know about place of imprisonment, detention or transport.
exposing a child or a disable to a danger that resulted in death
according to cases mentioned in chapters 392 and 393.
Kidnapping a minor causing his death, etc.
Setting fire deliberately to facilities and vehicles.
130
Chapter
163
165
167
181
182
185
186
190
Chapters 201202-203
204
235
267
369
392
393
396
397
398
399
410
411
412
438
439
463
474
580
setting fire to dispossessed things, if the fire resulted in the death of
one or more persons.
Cases F- who set fire deliberately, or ordered so to anything owned
by him in cases provided for in chapter 582.
Cases of chapter 583- who set fire to something that may allow the
transmission of the fire.
Who deliberately burned by using firecrackers{as to specifications
580-584}
Disrupt or harass traffic deliberately resulted in the killing.
2- Military Law
Crime
Flee to ranks of the enemy.
Felony of escaping in complicity.
Felony of incitement to desertion.
Felony of using violence with wounded soldier.
Deliberate burning or destruction of buildings, railway, wires,
telegraphic and telephone centers, aircrafts, ships, boats, or
steamers, and all other real estates.
Making soldier's psychology unfit for military service deliberately
if he is in front of the enemy or attempts to.
Making soldier's self unfit deliberately while he was facing the
enemy.
Surrender to the enemy or handing over the site without
implementing all means of defense.
Surrender of a General or Commander.
Arrest a prisoner breaking his vow while holding his weapon.
Participating in a conspiracy intended to obstruct the execution of
the decision of the president or inciting soldiers to flee.
Referring documents for the benefit of the enemy.
Infiltrate in disguise to military centers.
Incitement to join the ranks of the enemy.
581
584
584
585
591
chapter
144
145
151
164
170-171
175
179
181
182
183
184
185
186
187
3- Anti -Terrorism Act:
The anti-terrorism act includes majority of the crimes contained in the Penal Code which
became crimes of terrorism for its combination with certain conditions or circumstances
resulted in new capacity of these crimes (terrorism crimes' capacity) and led to the lifting of
sanctions specified, or life imprisonment to the death penalty. And thus, chapters 1-218
contain ten types of crimes set in procedures of the Penal Code. Acts would become crimes
of terrorism when they are deliberately linked to individual or collective project aiming at
causing serious harm to public order through intimidation, terrifying or violence.
In accordance with chapter 7-218 of the Anti- Terrorism Code, the crimes mentioned in
chapter 1-218 thereof raise the maximum limit of the penalty if the perpetrator forms a
terrorism crime so that the penalty could be execution if the determined penalty in the Penal
Code in life imprisonment…
Crime
Chapter
131
Assault
Vandalism
Aircraft conversion
Robbery
Manufacture or possession of the carrier
if resulted in the death
if resulted in the loss or amputation of an organ
Putting or inserting a substance that would expose the health,
animal or area to danger
Crimes imposed life sentence in the penal code
1/218
1/218
1/218
1/218
2/218
2/218
2/218
3/218
7/218
4- Ordinance relating the suppression of crimes touching the safety of the nation.
Including three chapters, we mention them as they came in the text of the Ordinance:
Chapter I
It shall be imposed the death penalty for persons who were foresight aiming at trafficking in
the manufacture of products or substances intended for human nutrition and dangerous to
public health, or monopolize, distribute or offer them for sale.
Chapter II
It shall be punished for the crimes stated in chapter I, even previously committed before the
date of the issue of our Noble Ordinance.
Investigation made and judgment passed in accordance with the requirements of the Noble
Ordinance of Shawwal 22, 1378 A.H corresponding to (May 23, 1957) and the modified
Noble Ordinance passed in Zoë AlQaeda 12, 1378 A.H corresponding to (June 2, 1959)
regarding the implementation of the death penalties, shall be a subject of publicity through
advertisements within the terms and conditions accurately outlined by the decision of the
Court of Justice for each case.
Chapter III
Sentences issued according to our Noble Ordinance and reports containing the
implementation of the death penalty– executed in accordance with Chapter 6 of the noble
ordinance No. 1.59.023 passed on Zoë AlQaeda 25, 1378 A.H corresponding to June 2, 1959
on the execution of the death penalties - shall be a subject of publicity through advertisements
within the terms and conditions accurately outlined by the decision of the court of justice and
peace for each case.
B- Execution Procedures
==================
Criminal procedure has processed the argumentation of the implementation of the death
penalty after the execution procedures contained in Chapter 19 of the Penal Code, copied of
the later and included in the new procedure code. We mention their contents as follows:
Execution of the Death Penalty
132
With the consumption of all appeal and repeal procedures, the death sentence shall be
executed only to the refuse of the amnesty request spontaneously offered by the Public
Prosecution, according to Chapter 34 of the Moroccan constitution.
Article 601
The Public Prosecution shall inform the Minister of Justice every award of the death sentence
once issued.
Article 602
The death sentence shall be carried out only to the refusal of the amnesty request.
If the convicted is a woman proved to be pregnant, she is sentenced to death only two years
after giving birth.
Death penalty shall be executed by order of the Minister of Justice to shoot dead by the
military authority under a request of the Public Prosecution at the court passed the resolution.
Article 603
Execution shall be carried out on publicity only on determining by the Minister of Justice.
Execution is located within the imprisonment institution where the condemned is under
arrest, or in any other place specified by the Minister of Justice with the presence of the
following persons:
1- Chairman or counselor of the criminal chambers, which passed the resolution,
appointed by the first president of the Court of Appeal;
2- Member of the public Prosecution appointed by general representative of the king of
the Appellate Court passed the resolution;
3- One of the investigation judges or a judge from the court of the place where the
execution will be carried out, appointed by the chairman of the mentioned court;
4- Court clerk of the place where the execution will be carried out;
5- Lawyers of the convicted;
6- Director of prison institution where the execution will be carried out or director of
prison where the convicted is detained when the execution happens in another place;
7- National security men or royal gendarmerie assigned by the Public Prosecutor;
8- Doctor of the prison institution otherwise, if not possible, a doctor appointed by the
General Prosecution;
9- Imam and two justice, and if the sentenced is not Muslim, a representative espoused
the same heavenly religion is appointed.
Article 604
If the sentenced wants to express any statement, magistrate or the judge referred to in item
No. 3 of the preceding article would receive it with the help of court clerk.
Article 605
Implementation record shall be drawn immediately by the court clerk and signed by the
chairman of Champers of crimes or counselor appointed by the first president of the Court of
Appeal, the representative of Public Prosecution and the notary public.
A copy of record shall be directly hanged on the door of the prison institution after the
implementation in which the execution took place and remains outstanding for twenty-four
hours.
If the execution is outside the prison institution, the record will be hanged on the gate of the
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municipality, the place of execution.
Article 606
No statement or document on the execution can be published by the press except the
mentioned record; otherwise the offender may pay a fine ranging between 10.000 and 60.000
dirhams.
It is precluded under the power of the same penalty to publish or broadcast by any meansbefore the execution or reporting the sentenced the ordinance of amnesty- any news or
opinion expressed by the Amnesty Commission, or order issued by the majesty of the king.
Article 607
Corpse of the condemned shall be handed over to his family, following the execution if
requested, who committed to bury it in non-publicity otherwise it shall be buried by the
competent authorities under the Public Prosecution.
The only case stipulating the reprieve of the death penalty sentencing is the status of the
pregnant woman, imposed by legal requirements that the pregnant mother is sentenced to
death and not the living embryo in her abdomen that will be died if his mother is executed,
though he is not guilty…
On the other hand, case of staying the execution did not prevent the judges to pass further
new death sentences, the matter that led to increase the number of the sentenced to death who
come to the prison institution, and put the problem of dealing the institution with them, as it
finds itself confused to identify its relation with the condemned attending the execution
though some of them have been under arrest for more than twenty years. Law No. 23.98 on
arranging and driving the prison institutions, rendered on August 25, 1999 did not tackle the
category sentenced to death, and left the matter for the applied decree No. 2.00.485 passed on
November 3, 2000, under which identified the method of applying the aforementioned law
specified as first part of Chapter 10 of the applicable order to special categories of detainees
sentenced to death, in four articles (out of 161 articles.)
Except for Article 143 which states that: the sentenced to death shall have had special care in
order to be able to study their personalities, pursue their psychological states and maintain
their balance to exclude every possibility of an attempt to escape, suicide or harm others.
Article that is of general form that highlights the enlarged security obsession at the expense
of ensuring and maintaining the rights of prisoners sentenced to death. The remaining three
articles do not exceed the usual administrative procedures, occupied as usual with the security
obsession regardless the guarantees entitled to the prisoner to enjoy the moral and health care
as long as it is in the charge of the imprisonment institution, aligning with the international
covenants ratified by Morocco.
Article 142: the sentenced to death may be departed to an institution where there is a district
prepared for this category of detainees once sentencing.
Article 144: the sentenced to death shall benefit from the visit of their families' members,
relatives and guardians, and can directly contact with them under their responsibility, to get
the supplies accurately inspected by the department of the institution.
The sentenced to death shall not get supplies of food sent to them by packages or outside the
framework allowed in the first paragraph hereinabove.
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The sentenced to death shall benefit, in this position, from contact with their defense within
the provisions stipulated in Article 80 of the law on the arrangement and driving the
imprisonment institutions.
Management of the institution shall take all security procedures to pass the visit in proper
circumstances.
Article 145: prevented in any case to report the sentenced to death the refusal of the amnesty
request.
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Part II
Guarantees and adequacy of the death penalty
Part III
Death penalty in Morocco between recent history and the current reality
Historically, and according to the Ministry of Justice, 198 death sentences have issued at
Morocco in 1994 since the independence, and comprehensive amnesty was made in the same
year exempting 13 individuals from the death penalty. In accordance with official statistics
and the boarders of the last death sentence given at Morocco, about 140 condemned were
sentenced to death.
In terms of executing the death penalty, it can be said that they have rarely been executed,
with reference to that a series of executions carried outside the framework of law which is
known in Morocco as years of bullets.
The most important stations that Morocco has known the execution cases of death sentences
pursuant to the legal verdict were:
1963, four were sentenced to death,
1971, thirteen were sentenced to death,
1972, eleven were sentenced to death,
1973, fifteen were sentenced to death,
1974, seven were sentenced to death,
1982, two were sentenced to death,
1993, one was sentenced to death, the last execution was known as devastated.
The basic remark is that, except for the last three cases relating to the public right crimes (the
case of Mishawka and his companion and the case of commissar Thabet, the last one who has
been executed at Morocco), all cases which number were 51 cases, according to the available
information, remains of political form, i.e. less than two percent.
year
Charge
number
framework
1961
Possessing weapons, disrupting 04
Case known as
public order and premeditated
Alfawakhry file in frame
murder.
of the opposition of
Alhasan II system.
1964
Premeditated murder.
01
Abd AlRahim Enos (14
years old) shot fire on an
officer accused with
liquidating a group of
resistance to colonialism.
July, 1971
Coup attempt
13(including Attacking the royal palace
4 generals,
with tanks in order to
4colonils
make a military coup on
and a
July 9, 1971.
commander)
Jan. 1973
Coup attempt
11(officers
Case of air attack on the
and pilots)
royal plane.
Nov.1973
Possessing weapons and
15
File of Moulay Bouazza
disrupting public order.
incidents.
Aug. 1974
Possessing weapons and
07
File of Moulay Bouazza
136
1982
disrupting public order.
Premeditated murder…
02
December,1993 Raping women with the use of
violence and brutality…
01
(commissar
Thabet)
incidents.
Known as file of
Mitshawik and his
companion.
Executing commissar
Thabet on charge of
raping many women with
the use of violence and
brutality and photo them
on special video tapes.
As noting therefore, the death penalty reprieve does not prevent the Moroccan courts from
continuing to issue death sentences, as the year 2006 alone has witnessed the issuance of five
death sentences, and a new sentence recently in Morocco during June in addition to
confirming two death sentences passed at the beginning of the current year.
Abolitionist Movement experience in Morocco; from the rightful requirement to the political
adoption.
For decades, Moroccan rightful voices advocated for the necessity of the abolition of death
penalty sentencing in Morocco. It is worthy mentioned that the first initiative in Morocco
included in the National Covenant for Human Rights in Morocco, announced by five rightful
and professional associations on December 10, 1990, the covenant that expressly called for
abolition of the death penalty. In spite of boldness and courage of these noble situations, such
requirement has succeeded recently only to be included in the basic laws of some legislative
associations laws and confirmed in a series of statements, reports and conferences.
The importance of displaying stages of such qualitative transformation is to help extract
precious lessons in the field struggle for the imposition of death abolition requirement. The
first stage is embodied in the elaboration of arguments and pillars to assign this requirement
as this work requires great efforts to prepare the literary file before embarking on forming
practical strategies. The following are the most important pillars:
The pillars for advocating the abolition of the death penalty are:
 Death sentence is inhuman penalty because the right to life is a sacred right, and that
neither individual nor State has the authority to pull it out. It is the duty of every one
to pursue to defend his right to life as the basic prop for enhancing the principle of
human dignity.
 Justice can not kill nor can we kill in the name of Justice, whereas punishment is a
state-owned right in the name of the community which defends and requires the
necessity to be maintained and protected because community did not endow
individual the life to judge its confiscation.
 No justice is infallible from mistake and death sentencing can not be corrected. The
possibility of error exists despite claiming the judges that they usually avoid
sentencing the death penalty unless the indictment evidences are decisive. (Since 1973
in 25 American states, 119 sentenced to death were set free after proving their
innocence.)
 The death penalty is not effective in limiting the crimes spread and no evidence
proved that its retention decrease the crimes punishable with death because it is not a
deterrent one. With reference to figures and statistics, we can easily discover that the
rates of crimes in a country like the United States, where death penalty is applied for
137




instance, are too more than the rates of crime in a country like France which does not
apply the death penalty.
The death penalty deprives the sentenced to death form the opportunity to repent and
expiate his mistake.
The International Criminal Court as well the International Courts in Lehai and
Arousha stipulated that the death penalty is unaccredited in trying crimes against
humanity, genocide crimes and war crimes.
When arousing the issue of victims, we may inquire whether the life usurp could
appease their hatred.
Abolition of the death penalty entails necessarily working of forming alternatives of
this penalty within more successful and humanitarian criminal policy and develop
legislation to suit the nature of the justice system in some countries lacking the
materialistic and humanitarian potentialities to interpret programs of combating
crimes by wider involvement of audience within the program of modernizing the
criminal legislation and deepening national debate on the choices and foundations to
be placed in the field of criminal policy.
Following the preparation of this dossier, the supporting step is the culmination of these
efforts by organizing an international symposium, the first of its kind in the history of
Morocco at Casablanca on 10 October, 2003 on the "death penalty in Morocco between
national laws and international covenants, "handling topics of the death penalty as being
tackled on the international and national legislations, in addition to the strategic axis of
international and national human rights movement for abolishing the death penalty, and
enabling to enrich the literature file sustaining the demand for the abolition of this penalty
through acknowledging the experiments of the participating international organizations such
as Arab Penal Reform Organization, Amnesty Association and "Together against the death
penalty" association.
Such general qualitative addition was not the only outcome of this symposium, but it formed
an important milestone in the history of the anti-death penalty movement at Morocco, as they
have achieved two important benefits targeted by the work strategy at that time and
confirmed their importance and the findings resulted:


Effective investment of the national arena capacities and reunifying the national
opponents of the death penalty within coordinative framework on the national level,
Integrating the local action within the global context through intensifying the effective
attendance in the committee supervising the international coalition.
On first level, from the workshop of October symposium 2003, the first core of the
coordinative work emerged and the national coordination committee was formed among the
most important national associations opposing the death penalty in Morocco as a national
mechanism to coordinate their efforts to urge the Moroccan State to engage actively in the
international dynamic aiming at death penalty abolition. And, since then, several many moves
and initiatives affecting mobilization through organizing seminars gatherings lawyers,
representatives of parties and syndicates, and various associations to urge them to contribute
in supporting the activity of the committee morally and literary. It also achieved awareness
activities such as holding meetings with university students, supporting the campaign by
placing petitions for signature by the political community, civil society and all citizens,
organizing stances in front of the parliament on occasion of the world day for opposing the
death penalty on 10 October, making investigation after a field visit to the execution district
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at the Central Prison in Alkunaitra which accommodates over 90% of those convicted to
death on April 19, 2005, issuing a report and sending a copy thereof attached to an appeal
memorandum to the ministry of justice and giving a particular importance to communicate
across the meeting with representatives of the mass media to provide them with reports,
studies and articles on the subject to enable them to support the national campaign launched
on April 28, 2005 under the slogan: "all for abolition of the death penalty" and plead through
the memorandum brought before the Moroccan government in the person of Mr. justice
minister.
The two-year continuous work in mobilization and awareness had important results in
activating the debate on the death penalty in Morocco at first, and its occupation a place
within the interests of the Moroccan public opinion.
The committee, on the other hand, contributed in forming the first oral question in May 2005,
in the parliament regarding the subject of the death penalty and the projects of the Moroccan
government for abolition. The result of deliberating the debate in the parliament was drafting
a proposal calling for death penalty abolition from the Moroccan legislation by a
parliamentary party (see copy of project in the annexes), and then organizing the seminar day
arranged by the same parliamentary group on 8/12/2006 with presence of other parliamentary
groups and members of the national committee.
On second level, attending in the first conference workshop of the movement against death
penalty at Strasbourg in France in 2001, that enabled the presence to touch the weak interest
of the Arab region within the scope of the global coalition opposing the death penalty
established at that time. The echo of the International Symposium at Morocco in 2003 had a
major role in winning the representation of the coordination committee among the committee
overseeing the international coalition against the death penalty and contributing in the
preparation for the second international conference against death in Montreal which devoted
seminars to discuss the problem of the death penalty in the Arab world by displaying the
experiences of some Arab countries as Jordan, Tunisia, Lebanon, Morocco, and with the
participation of delegations of Algeria, Egypt and Bahrain. Therefore, the conference
confirmed in its final statement the importance of visualizing local strategies in North Africa
and Arab world.
On the other hand, the local dynamic known by the anti-death penalty movement on the local
level could crown the efforts of the representative of the National committee inside the
supervision committee to persuade members of the international supervision committee to
hold the annual gathering of the international coalition at Casablanca on 19/20 of June 2006,
attended by delegations of 14 countries from America, Europe and Africa and to organize
another day on the margin of public gathering mainly devoted to study the strategies of work
in the Arab world.
Through this public gathering, the resolution of giving an important space to the Arab world
and North Africa was adopted during the third conference, as two basic axes relating the Arab
world; Islam religion and the death penalty were designated in the Conference held in Paris
form 1-3 of March, then ways and work strategies toward the abolition of the death penalty in
the Arab world with regarding the Arabic language as the third official language of the
Conference.
From this quick display, the Moroccan movement opposing the death sentence and the
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significant results already achieved within three years clarifies the effectiveness of strategic
options in merging the local and international dimensions by highlighting distinctive regional
dimension of the Arab world within the international context.
Third- local supervision
Today, it could argue that the interest with the subject of death penalty has penetrated the
public affairs and imposed itself on the Moroccan political arena. After gaining the maturity
element and putting as a political issue related particularly with the future criminal political
options, we find that there are political and semi-official institutions adopt and defend for the
demand of the abolition. We also record the debate penetration into the Moroccan
parliamentary institution.
Citing them through the following examples:
On level of public opinion: comparing with very close period when talking about the death
penalty as of taboos or silenced matters, intensive activities of the coordination committee
managed to organize several enumerated activities which actions and effect revealed in the
concern of the Moroccan media in this respect. In this regard, we are monitoring two
important events helped too much to abbreviate the distances and generalize the concern with
the subject on level of national territory. The second T.V channel (the most following
television channels in Morocco) specialized the successful program "Directly with you" on
April 6, 2005 for this subject in Morocco, attended by advisor of the minister of justice, the
headmaster of Alhuseni religious school (similar to Al-Azhar in Egypt), and a prior death
sentenced in frame of public right who has passed 23 years at prison and got benefit from the
conditional release. The second event is the broadcast of documentary program (60 minutes)
on the death sentenced where many of them were interviewed inside their cells, and views of
some perpetrators, officials, families of the sentenced and victims were presented. These two
events contributed in creating a positive change to the national public opinion of the death
penalty.
Adding to the role of the written media in promoting activities of the coordination committee
and covering their activities which reached their climax with holding the national committee
a press symposium to declare the launch of the national campaign against the death penalty
with hosting the executive director of the Association "Together against the Death Penalty".
It also covered a series of consultative sessions and meetings that took place with
representatives of various political and union bodies, in addition to the television coverage of
the successful stance in front of the parliament denouncing the continuous putting the death
penalty into force and advocating for its abolition on October 10, 2005.
On level of decision-making centers: the Moroccan Ministry of Justice organized a
symposium on penal policy entitled "fact and prospects" at Mecnas city on (9-11 of
December 2004). This symposium, which is regarded an entrance to the projects of revising
penal legislation in Morocco, has been devoted to study many political and rightful topics
occupying the minds of practitioners and officials to combat crimes and targeted looking for
suitable answers to reduce crimes and perceptions about punitive sophisticated system taking
into account the necessary reform and achieving adequate deterrence. Among of axes tackled
is: the death penalty, the concluded recommendation of the debate is reducing the death
penalty and proceeding gradual steps to abolish it.
On the other side, the ministry of justice licensed the members of the national committee
against the death penalty to lengthen the visit to b and c districts at the central prison in
Alkunaitra where over 90% of the total death sentenced in Morocco are staying therein, and
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executed a report on the visit sealed by a set of recommendations sent to the minister of
justice claiming for the improvement of their living conditions and passing a comprehensive
amnesty from the death penalty to transfer it into a specific penalty. The effects of effort to
break the isolation imposed upon them and 25 sentenced got benefit from the amnesty from
the death sentence and transforming it to life imprisonment has demonstrated.
Following these important results achieved by serial of intensifying activities of pleading and
networking, it appeared the importance of investing the political field , especially after
attracting many ministers and senior officials to sustain the demand for the abolition, among
of them was the recent minister of justice who has previously stated more than once and in
many occasions (announcing on the occasion of holding the 61 sessions of Human Rights
Assembly of the United Nations for Morocco's commitment to abolish the death penalty,) in
addition to the presence of officers and officials in the discussions and in various activities in
this regard.
The occasion of holding the third conference on the movement against the death penalty was
a public opportunity for holding direct meetings with the secretaries general and general
writers of the largest political parties to state their positions and invitation to attend the only
international press symposium to declare the conference at headquarter of the consultative
council for human rights in Casablanca on 23 January 2007. Headed by the late Idris Binzaki
who had headed that council and attended by the secretaries general of the largest four
Moroccan parties, that symposium was an announcement demanding the abolition of the
death penalty in Morocco from the juristic constituency to the wider endorsement by the
political elite, as well as by the Foundation of the Advisory Council for Human Rights.
Generally, it could be confirming that there are no hostile attitudes in Morocco today towards
the invitation to open the debate on this subject; as an important profit in the march
advocating for the abolition of the death penalty in Morocco.
Extrapolating the most important situations known at the Moroccan arena recently, we found
situations calling for the partial abolition (i.e. some serious crimes must be still punished by
execution, especially premeditation murder coupled with the stress conditions), and more
mature attitude goes towards the gradual abolition of this penalty considering the necessity of
preparing the public opinion to accept the abolition.
Meanwhile, we are with the field pro-abolition, and insist on the total abolition for there are
not justification for retaining this barbaric penalty as to the political stability factor applied in
Morocco, adding that it is unsuccessful penalty, especially, such penalty have not been
applied in Morocco for 14 years, then why do they sentence the condemned to prisons where
there are prisoners who passed more than 28 years in the district of the execution?
It is mentioned that, the death penalty in Morocco is put in the framework of the penal code
which is the positive law, (the Moroccan legal system based on the positive jurisdiction after
canceling the principle of murder from its reference). Therefore, the abolition may adopt two
forms: the first, on the grounds that Morocco expressed many times its commitment with
engaging in the international legislative system, by endorsing the second optional protocol
which calls the countries to bind with the abolition, consequently providing the time to begin
the stage of amending the national penal legislation to delete all related to the death penalty
and replace the death penalty to other sanctions, the second form is to pass abolition
resolution from the parliament in frame of the draft amendment to the penal code, which the
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government operates on for presenting on the parliament.
These two options require giving the priority to work towards the parliamentary act and the
legislative association discharged from the elections of September 2007, and the trend of the
current government to adopt the endorsement resolution on the second optional protocol
before departure. The hope remains on the possibility of a royal initiative to give guidance in
this regard.
An important illustration imposed itself that is by adding pillars upon which we build our
demands for the abolition. This requirement does not represent an end in itself, but is an
essential access for serious thinking in alternatives of this penalty relying on the involvement
of the civil society and the public in general who have to be aware and accommodate the
criminal policy of his country.
We end this display with reference to the Arab world, a round- table organized during the last
Paris conference about the strategies of abolition of the death sentence in the Arab world,
which formed an occasion to meet with a group of rightful jurists as representatives of the
rightful associations in Egypt, Jordon, Tunisia, Lebanon, Bahrain, and Morocco. It has been
concluded that the varying conditions in the process of this issue impose talking about the
various strategies (in Tunisia, for instance, slogan of stop execution is raised, in Egypt there
is a problem in the establishment of religious proofs and pillars for breaking taboos, and in
some other countries, there are still indications for opening debates inside the legislative
bodies) taking into consideration the varying terms and conditions within the Arab world.
For reminding, we note that the subject of the death penalty is put between the execution and
the abolition in the symposium organized in Marrakech city, on 26-27 of April 2006, on the
subject of the criminal policy in the Arab world. The great need to work on maturing the
requirements on the level of the Arab world politically and culturally is emerged with this
symposium in order to launch on a large-scale, considering two essential matters: firstly to
involve in through collecting the demands for the abolition; secondly to allow the field for a
broad debate on the pillars and props claiming for the abolition with regard to the privacies of
the Arab-Muslim world.
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143
Death Penalty in Palestine
In Regions of Palestine National Authority
Treatment and Rehabilitation Center for Victims of Torture
Palestine-Ram Allah
Wessam Sahweel
Hassan Salem
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Introduction:
International Law does not prohibit absolutely the imposition of the death penalty, yet it lays
down strict conditions for the application and encourages States where death penalty is
applied to take measures for the abolition. In this light, the International Charter on civil and
political rights is bound to determine number of infringements whose sanction are death
penalty, concerning the "very dangerous infringements" (item 6 of the Charter). Moreover,
the death penalty may be imposed in accordance with rules of justice trial as defined in Item
14 of the Charter, provided the possibility of granting the accused to appeal the court's
decision.
Many of human rights organizations in the world are dealing with the death penalty as
violation of human right to life, and as cruel, inhumane and humiliating penalty, and appeal
all States to abolish it entirely. Many countries have signed, at a time, optional protocols that
are attached with number of international covenants on human rights, which prohibits
completely the imposition of the death penalty.
In the Palestine case, according to the applicable laws by the judicial system thereof, the
Palestinian penal code which is in effect in the areas of the West Bank allows the imposition
of the death penalty on those who are guilty of committing an offence out of 17 offenses,
while the parallel law which is in effect in Gaza Strip sets 15 types of offences whose
perpetrators are sentenced to death. Penal Codes in the West Bank as well as in Gaza Strip
are applied by the ordinary civil courts.
Adding that, death penalty is imposed in the Palestinian Authority under the "Revolutionary
Penal Code by the Palestine Liberation Organization" in 1979.
This Law allows the imposition of the death penalty on whoever condemned with committing
a violation out of 24 different offences. This law is applied by special courts activated by the
Palestinian Authority: Military Courts and State-Security Courts.
The death penalty in Palestine
The death penalty is one of the most prominent issues of concern to human rights activists,
and the international institutions working in law and human rights.
In addition to violating one of the most important human rights, and the essential foundation
for any other rights, that is the right to life, the death penalty represents the utmost degree of
torture, and cruel and inhuman treatment.
Accordingly, Article (3) of the "Universal Declaration of Human Rights" restricted the use of
such penalty, and emphasized the right of everyone "... to life, liberty and security of person."
This right includes, as Article (5) of the same Declaration confirmed, not subjecting the
individual to torture, cruel treatment that degrading human dignity, including the nonapplication of the death penalty.
During the second half of the twentieth century, numerous treaties and, international and
regional conventions were enacted stressing what is stated in the Universal Declaration of
Human Rights on the right to life, and calling frankly for the non-application of the death
penalty except in exceptional cases, according to specific conditions and criteria. In this
context, Article (6, Pararaph"1") of the International Covenant on Civil and Political Rights,
affirmed the right to life as "... the inherent right of every human being ... No one shall be
deprived of his life arbitrarily." Paragraph two of the Article itself Set cases, standards and
conditions in which the death penalty is allowed to be applied, where it confirmed that "
countries which have not abolished the death penalty may not govern with this penalty only
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for the most serious crimes in accordance with the legislation in force at the time of
committing crime, and not violating the provisions of the Covenant ... may not apply this
penalty only pursuant to a final judgment rendered by a competent court.” Despite allowing
this paragraph to apply the death penalty according to very specific terms, but paragraph (5)
of the same article prohibited the application of the death penalty on children and pregnant
women, even under those conditions specified. That paragraph has stressed the illegality of
the judgment"... of the death penalty for crimes committed by persons under eighteen or on
pregnant women."
Optional Protocol II of the Covenant on Civil and Political Rights, which aimed at the
abolition of the death penalty, claimed the signed states to take "... all necessary measures to
abolish the death penalty within its jurisdiction," and not to apply the death penalty only "in
time of war ... according to the conviction in a very serious crime of a military nature, and
committed in time of war…"
Not only did the results of the application of the death penalty restrict on the violation of the
right to life, but also extend to the violation of his right to enjoy of human treatment not
degrading his dignity, and thus constitute a flagrant violation of the Convention against
torture and other forms of inhuman treatment of 1984.
As a result of violating the right to life, and the Convention against torture and other forms of
inhuman treatment in 1984, many countries embarked-since the beginning of the second half
of the last century-on stop working with this penalty. According to some sources, the
numbers of countries that have abolished the death penalty on the legal and practical level in
2006 are 88 countries. The number of countries that have abolished the death penalty in
accordance with the conviction in ordinary crimes (not related to national security) are 10
countries, while 37 countries (including one Arab country, that is Tunisia) abolished working
with this penalty on a practical level, and 55 countries kept working with this penalty, among
of which 12 Arab countries (including the Palestinian Authority) legally and practically.
Death Penalty in the Mandate Areas of National Palestinian Authority
In 1994, when the National Palestinian Authority was established, under the Transitional
Agreement, National Palestinian Authority was obliged to identify the bases and the legal
principles that will govern its relation with the Palestinian society. In this regard, the National
Palestinian Authority asserted in its interim constitution of 1997, and the amended version of
2003, its commitment to work-without lag-to accede to the regional and international
covenants and conventions which protect human rights and to respect all international
covenants and documents on human rights. Although this commitment meant endeavoring
the Authority to amend all legislations and the applicable laws in the areas of its mandate to
ensure compatibility of these legislations and laws with the spirit of the international
conventions and treaties for the protection of human rights. However, the National
Palestinian Authority has applied, since its establishment in 1994, the death penalty in an
inconsistent manner with the international standards, according to Article (37) of the Penal
Code No. 74 of 1936, in force in Gaza Strip, and Article (14) of the Jordanian Penal Code
(No. 16) of 1960, in force in the West Bank. In addition to the two mentioned laws, the
National Palestinian Authority relied on the Revolutionary Penal Code issued by the Palestine
Liberation Organization in 1979, and unapproved by Palestinian legislative body (Palestinian
Legislative Council).
Since its establishment in 1994 until the end of the 2005, the National Palestinian Authority
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issued 66 death sentences against citizens in accordance with condemnation in various crimes
(including conviction of crimes related to national security). The vast majority of these
sentences were issued by the State-Security Court established in February 1995, amid strong
opposition by the Palestinian Human Rights Organizations, because such a court is
inconsistent with the international standards for fair trial and sound legal procedures. StateSecurity Court did not usually give the offender sufficient time to prepare to defend himself
as its actions are taken rapidly without informing his lawyer of the trial in a reasonable time
allowed to prepare his defense. Besides, in this type of trial, technical reports of independent
judicial bodies, such as criminal laboratory and the Institute of Forensic Medicine, are absent.
Adding that the sentences of these courts are harsh (like the death penalty and life
imprisonment) is not subject to appeal.
Despite the criticisms against the National Palestinian Authority by the Palestinian Human
Rights Organizations for its decision to establish a state-security court, those criticisms did
not find ears to listen as turned, in the years subsequent, to implement part of the sentences
passed on that Court and issued a decision in November 1999, provides for the introduction
of the post of Attorney General of the State-Security Court, in a way led to devote the work
of this Tribunal in the areas of their jurisdiction.
In 2001, the Palestinian Authority has enacted the so-called Law of Criminal Procedure (No.
3) of 2001. This law determines procedures for the implementation of the death sentences
issued by Palestinian courts. According to this law, the accused has the right to appeal the
court's decision at the Court of Appeals within 15 days maximum from the date of passing
sentence, otherwise the judgment is considered enforceable. In case of rejecting the Court of
Appeal the appeal submitted by the accused, the decision shall be transmitted to the President
of the Palestinian Authority, to endorse or pardon, where as the President is entitled, under
the Basic Law, to issue the general amnesty. Nevertheless, this law did not ensure preventing
the implementation of the verdicts issued by the State Security Court. During the year 2002,
two death sentences, for instance, issued by the State Security Court were executed in Rafah
after being found guilty of raping and killing a girl from the city of Rafah.
In July 2003, the Minister of Justice, Abd AlKarim Abu Salah adopted a decision that cancel
the work of those tribunals, and transformed their competences to the regular courts which
work in accordance with the law. Although this resolution was a positive step towards
strengthening the independence of the judiciary and the sovereignty of law, yet it required to
be accompanied by presidential decree so as to abrogate the effect of the decree on the
establishment of this court, and to ensure that those courts are not hold at any time.
Therefore, the non-issuance of this decree kept the State Security Court as a ready sword can
be used at any time.
Not only that, but extended to include the implementation of the Palestinian Authority for
many death sentences issued by the State Security Court in earlier times. During 2005 the
Palestinian Authority implemented, for example, five death sentences issued by Palestinian
courts (including the State-Security Court) in earlier times.
Death Penalty between effective Legislations and International Standards
First: crimes punishable by execution:
International standards and conventions obliged the confinement of the death penalty, in
countries that insist on keeping them, in the most serious crimes so that their scope should not
be beyond intentional crimes with lethal or other extremely grave consequences. Death
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penalty may not be imposed except in the case of a crime stipulated to death penalty by law at
the time of commission. If law was amended at a later time so as the penalty is commuted for
this crime, the accused would benefit from the principle so-called non-retroactivity of law,
which means not to apply the law retroactively only If it is for the interests of the accused.
There is no unified Penal Code in Palestine, but there are several laws; in the West Bank,
courts apply the Jordanian Penal Code No. (16) Of 1960, while in Gaza, Mandatory Penal
Code No. (74) of 1936, amended by the order of the military Egyptian ruler (No. 555) of
1957 if applied. Military Courts and State Security Courts sometimes, apply the
Revolutionary Penal Code of Liberation Organization of 1979. Adding that, a set of
complementary laws to the Penal Laws are applied in the West Bank and Gaza Strip, such as
laws of Dangerous Drugs, the explosives laws, and the laws relating to juveniles.
The Israeli Occupation Authorities introduced some amendments to the Penal Laws; where
they added new crimes and placed additional conditions to criminalize certain acts and issued
some military orders concerning the death penalty. In the following, we will discuss the death
penalty in the laws of the West Bank and Gaza Strip, Revolutionary Penal Code and Israeli
military orders.
The implementation of the death penalty:
International guarantees concerning persons who might face the death penalty stipulated that
in the event of the implementation, the sentence shall be executed so as to inflict the
minimum of suffering.
According to the effective laws in Palestine, the implementation of the death penalty differs
whether the sentenced is civilian or military; the civilian is executed by hanging to death (9),
while the military is shooting by firing squad (10). However, the State Security Court did not
determine, in the most recent death sentence issued in the case of the murder of the
lieutenant, Abu Zina, to execute the accused by shooting although he is a civilian, nor may
the implementation of death sentences on official holiday’s national festivals. According to
Jordanian Criminal Procedural Law, body should be buried without ceremony.
Palestinian Reform and Rehabilitation Centers Law of 1998 provides for the necessity of the
presence of a clergyman whom the sentenced belongs to at the time of implementing the
penalty, but the law did not stipulate the respect of the sentenced religious rites in the process
of burying the corpse.
Having witnessed the practice in the three executions carried out by the Palestinian Authority
in Gaza some inhuman practices. In the case of the execution of the two brothers, Abu Sultan,
the bodies did not be buried according to Islamic religious rites or delivered to their families
to be buried by the usages. The bodies had been buried by the Authority, and later the two
corpses were taken out allowing the family of the convicted make the necessary. As well as
in the case of Colonel Abu Mustafa whose body did not be handed over to his family, but the
authority buried it, and the two Abu Sultan brothers were buried with the presence of persons
who are not necessarily attend such as national activists, some Palestinian factions officials,
and members of the Legislative Council. Among the crimes punishable by execution under
this law:
Carrying arms against the state, bearing a state to assault on the Kingdom, assisting the
enemy, damaging the infrastructure at wartime, changing the constitution illegally, armed
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rebellion against the state, attacking the King, the terrorism that leads to murder, and
intentional murderer.
In terms of the Revolutionary Penal Code of PLO, the said Law has incriminated 33 offences
by execution pursuant to 26 legal articles, some of which dealt with more than a criminal act;
Article 36 set forth two acts, Article 140 set forth three while Article 165 set forth two acts.
Crimes punishable by execution under this law:
Treason crime, destructing and devastating revolutionary facilities, helping the enemy to
defeat the revolutionary forces, assisting the hostile forces, damaging and breaking down
weapons, delivering locations to the enemies, laying down weapon, supplying enemy with
weapons and ammunitions, changing the basic system of revolution, attacking on the life of
the President or on one of the members senior leadership, terrorism leading to murder, and
forming terrorist gangs.
The Palestinian draft penal code has also adopted the death penalty, where it incriminated 23
offenses to execution under 16 legal articles, some of them tackled more than an act in their
clauses; Article 67 laid down six acts and Article 68 three acts. Among of acts punishable by
execution under this draft are murder crimes, treason, damaging public facilities at wartime,
and negotiating in contrary to national interests.
Court-Martial draft law and Code of Military Procedures incriminated also 41 offences to
execution under 14 legal articles and Some of them dealt in more than an act; Article 164 laid
down 12 acts incriminated to death, Article 168 five acts, Article 172 three acts, Article 173
two acts, Article 174 seven acts, Articles 176 and Article 183 two acts and Article 189 two
acts as well.
Among of offences punishable by execution under this draft are; damaging and shutting
down revolution facilities, helping enemies to defeat the Palestinian National Authority and
assisting the enemy forces, destroying and breaking down weapons, delivering locations to
enemies, laying down arms, and facilitating the entry of hostile forces to the territory of the
Palestinian National Authority, supplying enemies with weapons and ammunition and
terrorism that leads to murder and presenting in a state of intoxication, sleeping during
control or guard shift, leaving the service or point guard before his change legally or leaving
center or unit on the pretext of evacuating the wounded at time of field service ...).
Perhaps what strikes supervisor of the development of punitive legislations in Palestine is the
Palestinian legislator’s exaggeration, as is stipulated in the texts of the Palestinian draft Penal
Code, draft Law of Court-Martial and military trial procedure, in adopting and approving the
death penalty. The Palestinian legislature has doubled the number of crimes punishable by
death, which demonstrates how strong the trend advocated for the adoption of this penalty as
well as its impact on the Palestinian level.
1-Death Penalty Laws in the West Bank:
Jordanian Penal Code No. (16), of 1960 specify the death penalty as punishment for 16
crimes, among of them are so-called the most serious crimes like premeditated murder
crimes. However, texts of many crimes are formulated in unclear and broad pattern, such as
Article (138) which punish by execution for the “attack that is intended to prevent the
existing authorities from exercising their functions derived from the Constitution," and
Article (136) for the work on changing the constitution of the State illegally." Most crimes
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punishable by execution in this law are political crimes that are difficult to be described as the
most serious crimes. Article (139), for instance, punished by execution whoever conspire to
commit an offense punishable by death penalty contained in articles (135 -138), yet law did
not define the word conspiracy.
Adding to the sixteen crimes punishable by death in the Jordanian Penal Code, Explosives
Act No. (23) Of 1963 punished by execution whoever "use explosive material for creating
terrorism, or causing harm to life or property, whether resulting in injury or not (Article
12/3). Thus number of crimes punishable by death rise to seventeen crimes (1).
2-Death Penalty Laws in Gaza Strip:
Mandatory Penal Code No. (74) of 1936, as amended by the order of Governor-General of
Egypt (No. 555) issued on April 2, 1957,determined the death penalty as punishment for
fifteen crimes, remarking that most of these crimes are relating to political issues affecting
the security of the State, and some of them were drafted broadly that may be interpreted in
different ways.
For example, Article (77) of the aforementioned Law punishes by execution "whoever
deliberately committed an act leads to affect the independence, unity or territorial integrity of
the State," Article (78 / a) also punishes by death "whoever intervened for the benefit of
enemy to destabilize the sincerity of armed forces or weaken the moral spirit or resistance of
the people." These Articles imply bad faith aiming at expanding the range of acts punishable
by execution if they are against State security. Moreover these acts did not almost distinguish
between the occurrences of the act punishable by execution at wartime or at peace.
3-Death Penalty in Israeli Military Orders:
Israeli occupation intended, upon security and political considerations, to waive the
application of the death penalty and replace it by life imprisonment (2). The so-called leader
of the Defense Intelligence Forces (IDF) in Gaza Strip has passed the Military Order No.
(60), on 2/5/1968, whereby he changed the death penalty mentioned in any legislation from
mandatory penalty into optional (3). That is the said military order has not abrogated or
frozen the death penalty in Gaza Strip, rather it transformed it from mandatory penalty in
some crimes into optional where the judge may govern by, if willing.
In the West Bank, the Military Order No. (268) issued on 7/24/1968. This Order provides that
if the law stipulated the executions mandatory, the court would govern life imprisonment as
mandatory penalty (4), but if it was not mandatory (i.e. optional), the Judge has the option to
govern the accused to life imprisonment or imprisonment for a specified period.
Practical practice did not witness the implementation of death sentences or even the
execution of these decisions by civil courts during the Israeli military government (5).
4-death penalty in the Revolutionary Penal Code:
Palestinian Military Courts apply the Revolutionary Penal Code of the Palestine Liberation
Organization of 1979, a law issued under Legislative Resolution No. 5 on the Chairman of
the Executive Committee of the Palestine Liberation Organization on July 11, 1979. This law
issued among group of other legislations, which are Code of the Revolutionary Tribunals
Procedures, Prisons Act - rehabilitation centers- and the charge system of the revolutionary
courts of the Palestine Liberation Organization.
150
According to Article (8) of the Revolutionary Penal Code, this law is applied on officers and
non-commissioned officers, soldiers, students of revolutionary schools and colleges and
vocational training schools, prisoners of war, and any revolutionary force commander-inchief ordered.
Have been bringing this law with the Palestinian military forces belonging to the nation,
Military Courts, military judges and magistrates of the State Security Courts return to this law
despite the absence of a constitutional or legal basis for its application in the West Bank and
Gaza Strip, where no decree or decision is issued by the President of the Palestinian National
Authority or any law by the Palestinian Legislative Council that states the validity of this law
in the West Bank and Gaza Strip. This law did not publish also in the Palestinian facts.
The Revolutionary Penal Code was promulgated when the Palestinian revolution passed
critical stage, especially the PLO was in exile. This law may suit military forces living the
situation experienced by PLO troops which were deployed on different countries. But it is
difficult to say that this law is apt to modern nation or fit to apply to civilians.
Revolutionary Penal Code punishes to death penalty for a large number of crimes (42
offenses), and does not distinguish between the application of the death penalty in time of
war or in time of peace. Crimes punishable by execution according to this Law may not be
described as the most serious crimes. Article (165), for instance, punishes to death whoever
committed a crimes stipulated in the Penal Code Revolutionary defaming the reputation and
prestige of the Palestinian Revolution through inciting the masses against them.
That is and according to Article (165), if the person committed any felony contained in the
law, a felony that is likely to raise the masses against the Authority, such as criminal theft or
arson or causing permanently infirmity, the perpetrator shall be sentenced to death. State
Security Court has relied on this Article in the case of the execution of Colonel Atiya Abu
Mustafa in Gaza, as well as the Special Court- Martial in the case of the murdering the citizen
Nasser Radwan at the presidential security system in Gaza.
Revolutionary Penal Code contains special text of political crimes, and there nothing is match
in the Jordanian or Mandatory Penal Code. As Article (68) stipulated that if the judge verified
the political nature of the crime, he shall govern life detention instead of death or hard labor
for life, provided that the crime is not against the external security of the revolution. Article
(66) of the said Law has defined the political crimes as "deliberate crimes committed for
political motive, as well as crimes against public and individual political rights, unless the
offender had driven for selfish vile motive.”
Although this text might suggest positive, it is unclear as it excludes from the political
offenses the crimes against the external security of the revolution, as well as crimes
committed under “mean selfish motive.” Determining whether an act was committed out of
selfish, is very difficult as it pertains to defining good faiths of man which are difficult to be
acknowledged by others.
Second: people sentenced to death:
Article 6 of the International Covenant on Civil and Political Rights, and international
guarantees for persons facing the death penalty stipulated the exception of certain persons
151
from the death penalty, they are: pregnant women and juveniles, and the persons who
committed the crime such as juveniles and psychopath.
1. Pregnant women and recent given- birth mothers:
Article (17/2) of the Jordanian Penal Code stipulated that in the event proved that the woman
sentenced to death is pregnant, the death sentence shall be changed to hard labor for life.
There is a similar provision of general application in the Penal Code of 1936 in force in Gaza
Strip, but Article (215) of 1936 of Rehabilitation Centers Act states that "whoever committed
deliberate murder felony shall be punishable by execution, providing that if a convincing
evident is proved to the court that the convicted woman of murder was pregnant, she shall be
sentenced to life imprisonment.” This provision is applied only to the intentional murder and
not all crimes punishable by execution.
Article (60) of Palestinian Reform and Rehabilitation Centers of 1998 (in force in the West
Bank and Gaza Strip) states the arrest of the execution against the pregnant sentenced to
death until after the birth, and even child reaches two years of age. It may seem at first glance
that the text of article (60) is contrary to article (17/2) of the Jordanian Penal Code, while
Article 17 is applied on pronouncing the sentence or before it becomes a final judgment but
article (60) is applied to the final provision. If pregnancy occurred after the judgment, as
supposed to but rare event, the implementation of the sentence would delay but not replace to
hard labor for life. The object of the text of Article (60) is to preserve the character of the
penalty, as the fetus may not be punished for an offence committed by his mother.
We believe that the text of article (60) of Reform and Rehabilitation Centers Code shall be
amended as to adopt the position of the Jordanian Penal Code itself, since the last position is
more humane.
2. Juveniles:
Article (12) of the Jordanian Juvenile Act No. (16), of 1954 in force in the West Bank
stipulate that juvenile shall not be sentenced to death or hard labor.
Article (13) of the Mandatory Juvenile Offenders Act (No. 3) of 1937 in force in the Gaza
Strip stipulates also that death penalty shall not be governed or recorded against a child, a
juvenile or a boy (6), that the court should, rather than judging by this sentence, govern for
his detention for a period decided by the High Representative. The lesson of regarding the
person a minor or juvenile at a moment of the crime that is he would be prosecuted before the
Juvenile Court if he committed the crime at the age of minor even if prosecution or trial
initiated after puberty.
These texts mentioned in the two applicable legal Laws in the West Bank and Gaza Strip are
correspondent to the international criteria which prohibit the execution of the death penalty to
juvenile or to who committed the crime while he was in age of juvenile.
3. Psychopaths:
Jordanian Penal Code and the Mandatory Penal Code exempt whoever committed an act or
offence while being unconscious of his acts or unable to realize that it is prohibited or left due
to his mind disorder from this penalty. However, Laws do not tackle the issue of losing the
sentenced his mind after committing the act or after issuing the sentence. We believe that it is
necessary to amend laws so as to handle this issue keeping up with the international standards
in this regard.
4. Elderly:
152
Nothing in International Law provides for the non-implementation of the death penalty for
the elderly and there is no age maximum of the sentenced. Palestinian laws have come along
with this trend and did not promulgate special provision of the elderly. Nevertheless,
legislations of some countries prohibit the application of the death penalty for those who are
over the age of 65 or 70, a humanitarian trend that we hope to be adopted by the Palestinian
legislations.
Third: procedural guarantees afforded to persons who might face death penalty:
Article V of guarantees on individuals' rights who might face death penalty stipulates the
inadmissibility of the implementation of the death penalty except pursuant to a final judgment
rendered by a competent court after legal procedures providing all possible procedures to
ensure a fair trial. These guarantees should be at least parallel to those contained in Article
(14) of the International Covenant on Civil and Political Rights, including the right of
anyone, suspected of committing and charging with a crime punishable by execution, to
obtain adequate legal assistance at all stages of the trial.
Also, Article (6) of the guarantees stipulates that "whoever sentenced to death has the right to
appeal at a higher court, and steps should be taken to make this appeal oblige."
"Anyone sentenced to death has the right to seek pardon or commutation of the sentence.
Pardon or commutation may be granted in all cases of the capital punishment."
Article (14) of the International Covenant on Civil and Political Rights mentioned set of
procedures that should be provider in any criminal trial, regardless the sentence faced by the
accused. Of these safeguards:
1. Each individual shall be, at the time of settling any criminal charge against him or his
rights and obligations in any civil proceedings, entitled to a fair and express hearing by a
competent, independent and neutral tribunal established by law.
2. Every accused is innocent until he is legally proved guilty.
3. Each accused shall enjoy, during trying his case and in full equality, the following
minimum guarantees:
 To be informed promptly, in detail and an understanding language with the nature
and causes of the charge.
 To be given adequate time and facilities to prepare his defense, and access to a
lawyer of his own choosing.
 To be tried without undue delay.
 To be tried in his presence, and to defend himself in person or by lawyer of his own
choosing. To be notified of his right to have a defense if he does not have a defense,
and to provide the court a lawyer, whenever the interests of justice so require, to
defend him without charging him any the reward if that does not have sufficient
means to pay for it.
 To discuss the prosecution witnesses himself or by others, and obtain the approval to
call defense witnesses of the same applicable conditions in the case of prosecution
witnesses.

To be provided freely with an interpreter if he can not understand or speak the
language used in the court.
153

Not to be compelled to testify against him or to confess guilt.
4. Every person convicted of a crime shall have the right to resort, in accordance with the
law, to a higher court to retry the decision of his conviction and sentence.
5. While there has been a person condemned by a final judgment of the crime of procedures
to be respected before resorting to the imposition of capital punishment on any person.
6. No one shall be subjected again to be tried or punished already convicted or acquitted by a
final award in accordance with the law and penal procedure of each country.
The fact is that the situation, with respect to the procedures and guarantees granted to persons
who might face the death penalty in Palestine, is mixed and complex. There are three
different laws related to the code of proceedings before the courts. Civil Criminal Courts in
Palestine apply the Code of Criminal Procedure No. (3) of 2001. In addition, Military Courts
and State Security Courts apply Code of Revolutionary Trials Procedure of the Palestine
Liberation Organization of 1979.
The following review the respect of these laws the procedures to be awarded to persons who
might face the death penalty:
1. Guarantees in the Jordanian Code of Criminal Procedure:
Noting that the amount paid by the Court to the lawyer, according to the second paragraph of
Article (208), is a very small amount, which would deprive the defendant of the opportunity
to retain competent lawyer, especially the punishment he faces may be up to the death
penalty. Jordanian Code of Criminal Procedure provides also for necessity to appeal the death
penalty or criminal penalty for not less than five years, even if the sentenced not requested
(Article 260 / 3).
Apart from the appeal of court's decision, the decision of the Court of Appeal shall subject, in
death sentences, hard labor and life imprisonment, to appeal at the Court of Cassation without
request of the convicted. President of the Court of Appeal shall render such provisions as
soon issued to the Attorney-General to send to the Court of Cassation for trying by
discrimination (article 275 / 2).
However, the Israeli occupation authorities abolished the Court of Cassation in the West
Bank under the military order no. (39), 1967, and thus deprived the defendants of additional
guarantee of fair trial guarantees.
In addition, Code of Criminal Procedure Law provides for the conduct of the trial in public
unless the court decides to take place in secret reasons of maintaining public order or public
morals, or the case is related to honor. The Court, in any case, may prevent certain groups of
people from attending the trial (article 213 / 2).
Code of Criminal Procedure Law includes other provisions on the right of the accused or a
representative to discuss witnesses, make its defense and provide its defense data and other
guarantees. However, Jordanian Code of Criminal Procedure Law is criticized for not laying
down controls or restrictions on the duration of arrest or trial, which could in many cases be
continued for several years.
Yet, the Civil Courts in the West Bank did not issue a death sentence since the arrival of the
Palestinian National Authority.
2. Guarantees in the Code of Criminal Procedure Laws (abrogated) in Gaza Strip:
154
Civil Courts in Gaza applied set of Criminal, Mandatory and Ottoman Procedure Law, in
addition to some amendments made by the Governor-General of Egypt. Among of these
laws: Law of Criminal Procedure to the Central Court No. (70) Of 1946, Code of Ottoman
Criminal Procedure and the Order of Governor-General No. (473) of 1956 on the
competences of the Public Prosecution. These laws provide for the right of the accused to
defend, to discuss prosecution data and to appeal. But they do not make the resumption of the
death sentences mandatory nor does it provide for necessity of retaining a counsel in cases
which may be punishable by death.
Civil courts in Gaza Strip have issued four death sentences; three of them are in the case of
murdering cashier, Ramadan Abd Allah Shehata, the fourth sentence in the case of criminal
abduction, murder and rape. However, the President of the Palestinian National Authority
decided to commute the punishment to life imprisonment in such cases.
3. Safeguards of the Military Courts:
Palestinian Military Courts are revolutionary courts at different types, and formations that
the Palestinian Revolution has created in the Diaspora; to handle issues arising from the
violation of penal legislations of the PLO. The Palestinian Military Courts are formed in
accordance with the Code of Revolutionary Criminal Procedure of 1979, and applied in terms
of subject group of revolutionary penal legislations enacted by PLO.
These courts are competent in issues which members of the Palestinian security forces are
involved and not civilians. They are working as Disciplinary and Criminal courts for the
military crimes, and governing civilians in situations which they involved or interfere with
the military in the commission of crimes, or when committing civilians crimes against
militaries in the course of performing their employment (7). Military Courts are divided into
Central and Standing Courts and the Special Court. Provisions of Central and Standing
Courts subject to appeal, not to a higher court but to the director of military justice; in case
the director decided to annul the appeal, he should return it to the same issued Court to
reconsider it. In case the court adopted his opinion, the resolution will be fixed otherwise, the
director will refer the resolution of this court to Special Military Court for trying it. If the
penalty did not exceed three years in the Military Courts, decisions of these courts subject to
the endorsement of the Director of Military Justice and by the President of the Palestinian
National Authority as the supreme commander of the Palestinian forces in case the sentence
exceeded three years. While the provisions of Special Military Courts do not subject to
appeal, like the decisions of the State Security Courts.
Special Military Courts have issued seven death sentences, three of which were issued on
3/7/1999 in the case of killing the citizen, Nasser Radwan during his detention in the custody
of the presidential in security system (Force 17) on 30/6/1997 in the case of murdering the
two brothers, Magdi and Mohamed Khaldiand in Nasserite, the last sentence is issued in the
case of Colonel Mustafa Abu Atiya on 26/2/1999, who was accused of raping six-year-old
child. Three of these executions have been ratified by the President that is: the execution of
the two brothers, Raeed and Muhammad Abu Sultan and Colonel Mustafa Abu Atiya, while
the penalty is commuted to life imprisonment in the rest of the other sentences.
The Military Courts, especially Special Military Courts do not provide the minimum
necessary guarantees for the accused, as the trial is run quickly so as the accused or his
representative is unable to adequately prepare a defense. It appeared from the experience of
the Special Military Tribunal in the past years that its sentences are primarily political, came
in response to pressure of popular. It is clear from the decision of the military court in the
case of Colonel Abu Mustafa that it was issued for alleviating the pressures made by the
family of the victim, which could extend and expand in Gaza Strip. Although the crime of
Colonel Abu Mustafa, an indecent assault, does not require the death penalty, but the Court
155
invoked Article (165) of the Penal Code which punishes by execution for any felony
committed and resulted in incite the masses against the Revolution, indicating the previous
intention of the court to pass death sentence.
4. Safeguards of the State Security Courts:
State Security Courts have been formed under decision passed by the President of the
Palestinian National Authority in February 1995.
Presidential Decree is based on several texts, including the Order of the Egyptian Governor
of Gaza Strip (No. 555) of 1964, which in turn is based on other legal grounds, including the
British Emergency Regulations in 1945. This court is competent to adjudicate in the crimes
falling on the internal and external security of the State, especially crimes contained in the
Order of the Governor-General of Egypt (No. 555) of 1957. The State Security Court is a
special court, rather than part of the Disciplinary Court, and it is not part of the existing
system of the Military Justice.
The resolutions of the State Security Court are peremptory decisions not subject to appeal,
but subject to ratification of the President of the Palestinian National Authority. The judges of
this court are working in the Palestinian security systems.
Its presence is a serious encroachment on the principle of separation of powers, attack on
competences of the formal jurisdictions which are supposed to be the general mandate on all
matters within its competence in the first place. Practices and procedures of this Court are
unfair and violate the minimum standards of the International Law, such as the right in a fair
and public trial before a competent, independent and impartial court, the right in sufficient
time to prepare a defense, choose a lawyer appeal to a higher court.
Many of the state security court trials were held in secret at midnight and some lasted only a
few minutes.
Presidents or judges of these courts are officers of security systems who have never work as
judges.
Defendants are usually represented before this court court-appointed lawyers who are
usually officers from the security services.
Conclusion and Recommendations
In spite of our opposition to the death penalty, the fundamental problem lies in the judicial
system which does not provide the minimum standards and guarantees of a fair trial. All
death sentences passed by the Military Courts or State Security Courts do not provide the
minimum right of the accused to defend. The circumstances in which the sentence was
implemented refer to the political motives and considerations behind them.
The death penalty constituted a flagrant and unjustified violation to the right to life. Thus, it
undermines the chances of enjoying the individual other rights; the matter that highlights the
urgent need for action to the abolition all over the world, including Palestine, in order to
upgrade human through respect and maintenance of his civil, political, economic and social
rights. The penalty is one of the forms of torture, and the utmost stages of cruel and inhuman
treatment therefore, it constitutes an infringement on the Convention against torture and other
forms of inhuman treatment of 1984. Accordingly, the application of the death penalty
constitutes a grave prejudice to the dignity of the individual and degrades the value of human
beings have natural rights, notably the right to life and humane treatment.
Nor are such penalty a deterrent to crime, as experiences of different countries, including the
United States, China, and Saudi Arabia demonstrated that working with this penalty does not
ensure the stability of society, and non-recurrence of crime. Hence, the implementation of
death sentences falls within the framework of revenge for murder only.
156
Adding that, the application of the death penalty leads to disastrous consequences represent
in losing the victims of such punishment their lives, as one of the most severe penalties as a
result of the impossibility of return on the outcome of their application.
While affirming that the abolition of the death penalty does not mean tolerance of those
convicted of serious crimes, but should consider the deterrent penalties and maintain our
humanity as well.
Ratification of the Judgments:
President of the Palestinian National Authority did not endorse on (36) sentences, in
addition to the endorsement of (5) sentences, but not implemented, while two sentences
against juveniles were commuted and replaced with imprisonment.
Table (1)
Sentences issued by the Palestinian Courts
President’s
endorsement
and
execution
updates
25/1/1995
Endorsed and
executed on
12/6/2005
At central
Gaza prison
Deliberate killing
of a soldier in Gaza
/5/22/5/1995
Not endorsed
released
Gaza First
degree
Court
murder
31/10/1995
Endorsed and
executed on
12/6/2005
At Central
Gaza prison
Palestinian
CourtMartial
Killing guards of
colonel Mahmoud
Abu Marzouk
10/3/1996
Not endorsed
Replaced by
life
imprisonment
with hard
labor
s
name
age
Town
Court
Charge
1.
Salah
Alden
Khalil
Salah
Muslim
27
Gaza
Criminal
Court
Murder and theft
2.
Thaeer
Mohamed
Mahmoud
Fares
28
Janine
Palestinian
CourtMartial
3.
Awda
Mohamed
Ismail Abu
Azab
33
Gaza
4.
Alaa Abd
Alhamid
Akal
Gaza
157
Date
Town
Court
Charge
Date
President’s
endorsement
and
execution
updates
Attiya Abu
Nokira
Gaza
Palestinian
CourtMartial
Killing a guard of
Mahmoud Abu
Mrzouk
10/3/1996
Not endorsed
Replaced by
life
imprisonment
with hard
labor
6.
Salah Saleh
Matar
Alshobki
Gaza
Criminal
Court
Deliberate killing
and robbery
20/3/1996
Not endorsed
Gaza prison
7.
Matar
Harp Matar
Alshobki
Gaza
Criminal
Court
Deliberate killing
and robbery
20/3/1996
Not endorsed
Gaza prison
8.
Waeel
Shabaan
Salem
Alshobki
34
Gaza
Criminal
Court
Deliberate killing
and robbery
20/3/1996
Endorsed
and executed
on 12/6/2005
Gaza prison
9.
Fahmi Abd
Alfatah
Altawel
24
Alkhalil
State
Security
Court
Killing the sergeant
Hamdi Karajah
14/7/1998
Not endorsed
10.
Rayed Abu
Sultan
Rafah
State
Security
Court
Killing Magdi and
Mohamed alKhaldi
27/8/1998
Endorsed and
executed on
30/8/1998
11.
Farris Abu
Sultan
Rafah
State
Security
Court
Killing Magdi and
Mohamed alKhaldi
27/8/1998
Not endorsed
12.
Mohamed
Abu Sultan
Rafah
State
Security
Court
Killing Magdi and
Mohamed alKhaldi
27/8/1998
Endorsed and
executed on
30/8/1998
13.
Ahmed
Attiya Abu
Mustafa
Khan
Yoness
Special
CourtMartial
Rapping 6-years
child, and incite the
public against the
Authority
s
name
5.
age
158
25/2/1999
endorsed and
executed at
the day itself
on dawn of
26/2/1999
s
name
age
Town
Court
Charge
Date
President’s
endorsement
and
execution
updates
14.
Rayed
Sobhy
Alatar
25
Rafah
State
Security
Court
Murder captain
Refaat Goda
10/3/1999
Not endorsed
released at
the beginning
of the
uprising by
force
15.
Ayman
Mohamed
Abu Saada
27
Gaza
State
Security
Court
Killing colonel
Hani Abu Zina
26/8/1999
Not endorsed
At Central
Gaza prison
16.
Hussein
Hashim
Abu Nahel
22
Alshatee
Camp
Court
Martial
Murder officer
Ayman Abu Nahel
23/11/1999
Not endorsed
At Central
Gaza prison
17.
Kamal Abd
Alrahman
Hamad
Gaza
Court
Martial
Co-operation with
the Israeli
Intelligence,
assassination the
martyr Yahya
Ayash
21/5/2000
Not endorsed
Unknown
whereabouts
18.
Hussam
Hamad
Muhammad
Hamad
Gaza
CourtMartial
Co-operation with
the Israeli
Intelligence,
assassination the
martyr Yahya
Ayash
21/5/2000
Not endorsed
Unknown
whereabouts
19.
Ragi Farris
Saker
29
Alamaree
State
Security
Court
Deliberate murder
of Ahlam Dakmak
2/7/2000
Not executed
released
during the
invasion of
Ram Allah
20.
Mohamed
Dawood
Alkhawaka
29
Gaza
State
Security
Court
Murder the citizen,
Mustafa Barod
11/9/2000
endorsed and
executed at
the day itself
on 21/6/2005
at Gaza
prison
21.
Waeel
Nouf Raga
Draghma
Tubas
State
Security
Court
Murder lieutenant
Abd Alrahim
Basharata
31/10/2000
Not endorsed
At Naples
Rehabilitation
Center
22.
Alan Bani
Awda
TamonJanin
State
Security
Court
Murder the citizen
Ibrahem Bani
Awda
17/2/2000
Endorsed and
executed
on7/12/2002
24
159
s
name
age
Town
Court
Charge
Date
President’s
endorsement
and
execution
updates
23.
Rayed
Khalil
Nagy
Almaghrabi
32
Gaza
Criminal
Court
Murder Khalil
Zamlat in 1998
1/1/2001
Endorsed and
executed on
27/7/2005
At Central
Gaza prison
24.
Magdi
Mohamed
Ahmed
Makawi
27
Rafah
State
Security
Court
Treason and
helping Israeli
authorities to kill
four citizens
11/1/2001
Endorsed and
executed on
31/1/2001
25.
Mohamed
Taef Allah
Alkhateb
Nawarah
28
Beet
Lahem
State
Security
Court
Treason and
helping Israeli
authorities to
eliminate many
citizens
13/1/2001
Not executed
Killed by
armed men
during Israel
invasion of
Beet Lahem
26.
Hussam
Alden
Mussa
Hamed
18
Beet
Lahem
State
Security
Court
Treason and
helping Israeli
authorities to
eliminate many
citizens
13/1/2001
Not executed
Escaped
during the
invasion
27.
Hassan
Mohamed
Hassan
Muslim
59
Alkhalil
State
Security
Court
Treason and
dealing with Israel
Intelligence
11/12/2001
Not endorsed
Unknown
28.
Eiz Alden
Gamel
Alarabed
24
Gaza
State
Security
Court
Murder intelligence
officer, Fawzy
Nasser
29/5/2001
Not endorsed
Released and
died in an
accident
29.
Samer
Magid
Mahmoud
Abu Zina
23
Talkarm
State
Security
Court
Treason and
dealing with Israel
Intelligence
30/7/2001
Not endorsed
escaped
during the
Israel
invasion of
Naples city
30.
Amgad
Gabber
Mohamed
Hanita
28
Talkarm
State
Security
Court
Treason and
dealing with Israel
Intelligence
30/7/2001
Not endorsed
escaped
during the
Israel
invasion of
Naples city
31.
Hussein
Sobhy
Mohamed
Abu
Aleyon
32
Talkarm
State
Security
Court
Treason and
dealing with Israel
Intelligence
30/7/2001
Not endorsed
escaped
during the
Israel
invasion of
Naples city
160
s
name
age
Town
Court
Charge
Date
President’s
endorsement
and
execution
updates
32.
Ahmad
Mohamed
Ahmad
Abu Aisha
50
Naples
State
Security
Court
Treason and
dealing with Israel
Intelligence
2/8/2001
Not endorsed
escaped
during the
Israel
invasion of
Naples city
33.
Monzer
Mohaned
Sobhy
Hefnawi
43
Naples
State
Security
Court
Treason and
dealing with Israel
Intelligence
8/9/2001
Not executed
killed by AlAqsa martyrs
during the
invasion of
Naples
34.
Khalid
Saadi
Alakah
24
Gaza
State
Security
Court
Treason and
murder of Masoud
Ayad from
president security
12/8/2001
Not endorsed
killed at Tal
Alhawa
Center on
pretext of try
to escape
35.
Omar Salah
Folila
21
Gabalia
Military
Court
Deliberate murder
of Essa Alswety
24/9/2001
Not endorsed
killed in
Alkhalil city
36.
Abd
Almoneam
Ahmed
Salah
19
Khan
Yoness
Military
Court
Deliberate murder
of his comrade
Algendi Zakaria
Almesri
Not endorsed
escaped
during the
invasion of
Gaza
prison,2005
37.
Khalid
Mohamed
Nasser
Kamel
17
Janine
State
Security
Court
Deliberate killing
with
predetermination
and laying in wait
5/2/2002
As he was
minor, the
sentence was
commuted
into 15 years
hard labor
imprisonment
Killed at the
courtroom
after
sentencing
38.
Jihad
Mohamed
Salah
Kamel
17
Janine
State
Security
Court
Deliberate killing
with
predetermination
and laying in wait
5/2/2002
As he was
minor, the
sentence was
commuted
into 15 years
hard labor
imprisonment
Killed at the
courtroom
after
sentencing
39.
Sami
Khedre
Ismail Hajji
40
Gaza
State
Security
Court
Treason and
dealing with Israel
Intelligence
Not endorsed
At Gaza
prison
161
4/1/2002
10/4/2002
s
name
age
Town
Court
Charge
40.
Mohamed
Thabet
Khalil
Alraee
47
Gaza
State
Security
Court
Treason and
dealing with Israel
Intelligence
10/4/2002
Mahmoud
Mohamed
Abd
Alsalam
Alsharef
52
State
Security
Court
Treason and
dealing with Israel
Intelligence
10/4/2002
Sohel
Shehata
Zakout
33
State
Security
Court
Treason and
dealing with Israel
Intelligence
10/4/2002
Hosam
Zohdi
Mohamed
Alhosi
22
State
Security
Court
Treason and
dealing with Israel
Intelligence
Nasser
Solomon
Mohamed
Alkarnawi
32
State
Security
Court
Murder the officer
Mohamed Alaidi
Gamal
Ibrahem
Nasser
Hussein
39
Beet
Hanon
State
Security
Court
Deliberate killing
of Ahmad Abd
AlKarim Abu
Awda- for family
dispute
Faisal
Ahmed
Abu Talekh
26
Rafah
State
Security
Court
Murder and rape
child Islam
Alkhateb
Said
Albarawi
Mohamed
Alnagar
29
State
Security
Court
Murder and rape
child Islam
Alkhateb
41.
42.
43.
44.
45.
46.
47.
Gaza
Gaza
Gaza
Almaghazi
Rafah
162
Date
President’s
endorsement
and
execution
updates
Not endorsed
At Gaza
prison
Not endorsed
Killed in
Alshifa
hospital at
Gaza
Not endorsed
At Gaza
Prison
Not endorsed
Killed by a
shot at the
headquarter
of the
preventive
security on
pretext of
trying to
escape
Not endorsed
Still at Gaza
Prison
Not endorsed
Still at Gaza
Prison
10/4/2002
21/4/2001
23/5/2002
5/6/2002
5/6/2002
Endorsed by
the president
and executed
on 7/6/2002
Endorsed by
the president
and executed
on 7/6/2002
s
name
age
Town
Court
Charge
48.
Basher
Sameh
Salem
18
EtaraRam Allah
State
Security
Court
Deliberate killing
of citizens, Halima
Mohamed Abd
Allah and Tamam
Mohamed Abd
Allah, for family
dispute
Walled
Ibrahem
Hamdia
39
Gabalia
State
Security
Court
Co-operation with
Israel Intelligence
and murder
activists of Hamas
Amen
Ahmad
Ibrahem
Khalaf
Allah
31
State
Security
Court
Co-operation with
Israel Intelligence
and murder of
activists of Hamas
Akram
Mohamed
Alzamda
31
State
Security
Court
Co-operation with
Israel Intelligence
52.
Hedar
Mahmoud
Hussein
Ghanem
39
Rafah
State
Security
Court
Co-operation with
Israel Intelligence
and murder of
activists of Fateh
fiction
53.
Awni
Mohamed
Ghanem
Abu Said
29
Almaghazi
Camp
State
Security
Court
Kidnap and murder
of Saleh Safi for
robbery
Basher
Sameh
Mahmoud
Salem
18
Etara-Ram
Allah
State
Security
Court
Deliberate killing
of citizens, Halima
Mohamed Abd
Allah and Tamam
Mohamed Abd
Allah, for family
disputes
Gaza
Gaza First
degree
Court
murder
49.
50.
51.
54.
55.
Kamel
Ibrahem
Alakhras
Gabalia
Rafah
163
Date
1/8/2002
President’s
endorsement
and
execution
updates
Endorsed by
the president
and executed
on 7/8/2002
17/10/2002
Not endorsed
Killed during
his presence
at the hospital
19/10/2002
Still at
Central Gaza
Prison
Not endorsed
Not endorsed
Still at Gaza
prison
Not endorsed
Still at Gaza
prison‫غزة‬
Not endorsed
killed by
Almaghdour's
brother
24/10/2002
28/10/2002
16/11/2002
1/8/2002
13/4/2003
endorsed by
the president
and executed
on7/8/2002
Not
implemented
or endorsed
by the
president
At Central
Gaza Prison
President’s
endorsement
and
execution
updates
Not
implemented
or endorsed
by the
president
At Central
Gaza Prison
13/4/2003
Not
implemented
or endorsed
by the
president
At Central
Gaza Prison
Deliberate murder
of Attiya
Almadhon
17/5/2003
Not endorsed
At Central
Gaza Prison
Gaza First
zrt
murder
24/1/2004
Not
implemented
or endorsed
by the
president
At Central
Gaza Prison
Gaza
Gaza First
degree
Court
murder
24/1/2004
Not
implemented
or endorsed
by the
president
At Central
Gaza Prison
24
Gaza
Gaza First
degree
Court
Murder and rape
13/4/2004
Ramie
Mohamed
Goha
24
Gaza
Gaza First
degree
Court
Murder and rape
2004/4/13
63.
Abd
Alfatah
Sanor
24
Gaza
Gaza First
degree
Court
Murder and rape
13/4/2004
Still in prison
and not
implemented
64.
Yosef Abd
Allah
Alanwar
Gaza First
degree
Court
Co-operation with
Israel Intelligence
and participate in
murder Palestinians
17/10/2004
general
intelligence
prison
s
name
56.
age
Town
Court
Charge
Solomon
Talal
Alakhras
Gaza
Gaza First
degree
court
murder
57.
Naeel
Hussein
Alakhras
Gaza
Gaza First
degree
Court
murder
58.
Rani
Darwesh
Khalil
Shakora
Gabalia
Camp
Court Martial
59.
Rayed
Fathi Aldeb
Gaza
60.
Eyad Samir
Ebbed
61.
Ehab Zeib
Abu
Alamreen
62.
27
164
Date
13/4/2003
Not
implemented
President’s
endorsement
and
execution
s
name
age
Town
Court
Charge
Date
65.
Mohamed
Ahmed
Abu Kanis
51
Gaza
Gaza First
degree
Court
Co-operation with
Israel Intelligence
and participate in
murder Palestinians
29/11/2004
general
intelligence
prison
66.
Ramie
Mahmoud
Abu Kanis
22
Gaza
Gaza First
degree
Court
Co-operation with
Israel Intelligence
and participate in
murder Palestinians
29/11/2004
general
intelligence
prison
Table (2)
Death Sentences according to years
Year
Sentences Executed No.
Death Sentences No.
1995
0
3
1996
0
5
1997
0
0
1998
2
4
1999
1
4
2000
1
6
2001
1
13
2002
4
19
2003
0
4
2004
0
8
165
updates
Year
Sentences Executed No.
Death Sentences No.
2005
5
0
2006
0
0
Total
14
66
Research sources
1- International Declaration for Human Rights.
2- International Charter on Civil and Political Rights.
3- Jordanian Penal Code No. (16), of 1960, in force in the West Bank .
4- Revolutionary Penal Code of PLO of 1979.
5- Optional Protocol II of Covenant on Civil and Political Rights.
6- Convention against torture other forms of inhuman treatment of 1984.
7- Palestinian Basic Law, as amended.
8- Pena Code No. 74 of 1936, in force in Gaza Strip.
9- Palestinian Code of Criminal Procedures No. (3), of 200l
10-Order No. (555) issued by the Governor-General of Egypt of Gaza Strip on April 2, 1957.
11- Palestinian Reformation and Rehabilitation Center Law of 1998
12-Sets of orders, instructions and pamphlets issued by the Israeli Military Ruler of the
occupied Palestinian territories.
13-Jordanian Juvenile Reform Law No. (16), of 1954, in force in the West Bank .
14-Juvenile Law No. (3), of 1937, in force in Gaza Strip.
15-Code of Criminal Procedure Law of County Court No. (70), of 1946.
16-Ottoman Code of Criminal Procedure Law.
17-Egyptian Military Order issued by the Public Ruler No. (473) of 1956 concerning the
competencies of the General Prosecution in Gaza Strip.
18-British Emergency Systems applied in Palestine in 1945.
19-Independent Palestinian Authority, Palestine .
20-Results of a group of meetings and interviews held by the researcher with some interested
in the subject study.
166
Death Penalty in Kingdom of Saudi Arabia
Khalid Al- Ghanamy
Legal Researcher and Journalist
167
Death penalty is applied in the Kingdom of Saudi Arabia, which judges by the Islamic Law
included in penalties of limits and retaliation. These penalties are proven by the Book
(Quran) and the Sunna, and the authenticated text is taken from Quran in sura (I. 178-179) in
the Almighty saying.
“O you who believe! The law of equality is prescribed to you in cases of murder: the free for
the free, the slave for the slave, the woman for the woman. But if any remission is made by
the brother of the slain, then grant any reasonable demand, and compensate him with
handsome gratitude. This is a concession and a mercy from Your Lord. After that whoever
exceeds the limits shall be in grave penalty. In the law of equality there is life to you, O ye
men of understanding; that you may restrain yourselves.” The legislator differentiates
between execution as a penalty and as retaliation: the first is the law of Allah, while the
second is the right to man. In case of execution for retaliation, the murderer may not be
retaliated only when the avenger of blood asked to, and he may assign the retaliation for free
or for compensation. But if it is a limit, execution of a sentence shall not be stayed, replaced
with other, commuted or pardoned.
Definition of the limit: is a penalty legally determined for the right of Allah.
Definition of retaliation: is the murder of deliberate murderer, or the wound of wilful
wounding in the way specified by the Islamic law.
Definition of discretionary disciplinary punishment: is non determined penalty for the right of
Allah or a human in every offence that do not imply a limit or expiation.
Sections of murder in Islamic law:
1- The forbidden murder: is the murder of aggression nature either the kill of a Muslim,
pledged infidel, entrusted or a free non- Muslim.
2- The non- forbidden murder: is the murder of non aggression, that could be restricted
as follow:
a- Mandatory murder, like the murder of the apostate, warlike infidel and
married adulterer
b- Recommended murder, is murdering the warrior his infidel relative if he
insulted Allah and His prophet.
c- Reprehensible murder, is murdering the warrior his infidel relative if he did
not insult Allah and His prophet
d- Permissible murder, like the murder of the criminal by the avenger of blood.
e- Forbidden murder, like the murder of the infallible without right.
f- Murder, neither lawful nor unlawful, that is manslaughter.
Death penalty is applied in the Kingdom in the following cases:
1- Limits, retaliation and discretionary disciplinary punishment.
2- Apostasy from Islam.
3- Spy.
4- Married adulterer.
5- Highway robbery.
6- Sodomy (homosexuality)
7- Abandoned of prayer.
Retaliation:
In order to implement the retaliation penalty, several conditions should be provided:
1- Safety of the non offender in case of execution, accordingly if retaliation is imposed on
a pregnant, she shall not be retaliated until giving birth and suckling her child.
168
2- Issuance of the legal verdict by the Imam (leader of Muslims) or his deputy to retaliate
from the offender. Thus, the sentence shall not be implemented before the award of the
ruler.
3- Being the avenger of blood legally capable- that is mature.
4- Agreement of kinsmen, the avengers of blood, the request of retaliation if they are
legally capable and present, retaliation shall not be implemented unless they agreed to
fulfil it.
5- Presence of the avengers of blood eligible for retaliation on implementation, it shall not
be implemented at the absence of some of them.
6- Presence of the leader or his deputy at the time of execution.
Murder by weight
No disagreement among scholars to who killed by lethal tool, but they disagreed in the
murder by weight, which has no limit of tools such as hammer, stones and large boards,
etc., applicable to this intentionally, and must be retaliated. The Great Court in the city
of Taif applied it in its judgment against M.M.M, who stroke a person by a heavy stick
on the head several heavy blows and falls him with a deadly blow. The legitimate
instrument No. 8 on 28/4/1405 A.H.
sentenced him to death, and the sentence was executed after the ratification of the clear
judgment, and the ratification of the Supreme Judicial Council and the issuance of the
Commissioner Order No. 4-777-A on 20-4-1406 A.H enforced, and the legitimacy
Court in Arar had adopted it in its sentence against M.G.A, implied in the legal
instrument No. 360 on 5-7-1405 A.H.
Way of execution:
Scholars disagreed on how to implement the retaliation, whether it requires a certain tool or
not? However Saudi Arabia still uses the sword in the execution on the ground that the use of
the sword is easier to loss spirit.
Place of execution:
No disagreement among scholars regarding a specific place for the implementation of the
sentence, rather but it can be implemented anywhere except mosques and the holy mosque of
Mecca
Abrogation of the penalty by:
1- Forgiveness of the avengers of blood, or some of them for reimbursement or not.
2- Death of the murderer before the execution.
Apostasy from religion:
If the crime of apostasy is proved against mature and selected Muslim who is acquainted with
the impermissibility and the meaning of a word or deed he preformed and under his avowal
or by testimonies of two Muslim persons with an honourable record who witness that he has
been apostate from Islam and disbelieved, and show the reason of this saying or act. If he did
not retreated of his apostasy after his repentance, he should be executed. Women as men to
public scholars, but neither child nor judicious person nor drunk shall be judged by apostasy.
Reasons of apostasy:
1- Believe in infidelity, like denying the existence of Allah.
169
2- Say infidelity, like insulting the Apostles.
3- Deed of infidelity, like prostrating to an idol.
4- Denial necessarily or doubt the principles of the religion.
Apostasy penalty shall be abrogated by the following reasons:
1- Death of the apostate.
2- Back the witnesses of their testimony.
3- Denial of witnesses the apostasy attributed to him.
4- Repentance by dictating him the testimony and to disclaim all that is contrary to Islam
and recognize what he has rejected.
Spy:
Spy is the person who is familiar with the defectiveness of Muslims, and delivers their news
to the homes of infidel enemies. The applicable that if the spy is warlike infidel he shall be
killed, but if he is free non- Muslim or Muslin he is referred to the leader of Muslims who
may punishes him with discretionary disciplinary punishment, for the interest, of beaten,
imprisonment or killing.
Married adulterer:
The Companion of the prophets and imams of territories decided unanimously that if the
married commit adultery deliberately, consciously and optionally; he has to be stoning to
death. However we would like not to apply this provision to its hideous significance and the
humanitarian refusal accompanied diligences of contemporary scholars rejecting this
provision, and suggest doubt to the legal basis.
How to implement the stoning to death:
The sentenced goes out to space land with the attendance of a group of Muslims, and
repentance proffers to him to be the conclusion of his life. When it is time to prayer, he is
commanded to perform prayer, or if he requests to volunteer, he is enabled to perform two
prostrations. And he is drinking if he asked water, and then he stands up without bind, grab or
tie, while the men stoning stand in rows like the rows of prayer, a row after another. Then
advances a group, whenever they stone him they take a side in order to go ahead another
group till he is died. If they stoned him individually, one by one, they should not be far him in
order not to mistake him or closer in order not to be spoiled by his blood and to avoid
standing in a way that may lead people to throw each other. If adultery is proven by evidence,
witnesses began firing and then followed by the imam and the people. But if adultery is
proven by confession, the ruler begins to throw not required to throw stone, but may be
stoned by bones, horn and pottery. The origin is that he should be stoned by medium stones,
estimated to palm filling. Thus he shall not be thrown by small stones then his torture is
longer, or by large stoned punish him severely.
Respite of stoning to death penalty:
The implementation of the stoning to death penalty is reprieved after being proved in one
case, whether the sentenced to stoning is pregnant. The penalty is respite until she gives birth
and suckles her baby. If there is another to nurse and bring up the child, she is stoning to
death otherwise, she is granted a respite till weaning.
Highway Robbery:
The text in the Quran "the punishment of those who wage war against Allah and His apostle,
and strive with might and main for mischief through the land is: execution, crucifixion, or the
170
cutting off of hands and feet from opposite sides, or exile from land: that is their disgrace in
this world, and a heavy punishment is theirs in the hereafter; except for those who repent
before they fall into your power; in that case know that Allah is oft- forgiven, most merciful."
(V- 33-34) the warrior is the one who draw weapon against Muslims intents on taking money
or indecent assault unjustly. They disagreed in the indecent assault and whether it is of
highway robbery or not? The applicable that it is included therein; the Great Court in Abha
decided in the provision issued on 5/5/1405 A.H. No. 109-1 to sentence to death whoever
abducted a girl under thread of weapon and commit adultery, he is considered a combatant of
Allah and His prophet, striving for mischief through the land, and executed after the prayer of
Friday on 2-11-1405 A. H. at the city of Abha in Asir region-Saudi Arabia.
Conditions of proving highway robbery:
Add to the terms of legal capacity, he shall take the money publicly, if he acts secretly, it is
not regarded highway robbery; rather it is just a theft. As well as if he snatched it then fled
and the victim Muslim or free non- Muslim, and be committed to the provisions of religion or
convened, but He is not applied to this provision if he is warlike, but executed only.
Way of crucifixion:
Warrior is killed first, then crucified but disagreed on the duration of the crucifixion. It is told
three days, and more.
Sodomy:
Whoever committed homosexuality, his penalty is killing whether married or not.
Magician:
Muslim magician is executed while free non- Muslim is not executed, relying on the texts of
the Book.
Abandoned of prayer:
In effect, the abandoned of prayer is infidel apostate and should be killed, and not washed,
shrouded, prayed for, or buried in Muslims' cemeteries, and no one inherit him. He should be
killed for leaving one prayer, by sword beaten in the neck, because sword is the best and
fastest tool for the loss of soul.
Results and recommendations:
Since the eighteenth century, the world wonders about the death penalty; the necessity and
legitimacy of humanitarian, ethical and legal aspects. Studies have tackled its deterrent effect,
and doubted in its utility despite the fact that the death penalty has existed since the dawn of
humanity, and in primitive societies and to this day. Although it has- in fact- begun by
individual revenge motivated by emotional situation adopted by the family of the victim
against the offender, but that the rule of retaliation stabilized in the conscience or primitive
groups as a mean of avoiding the risks of retaliation threatening their integrity and the evil of
renouncing from the humanitarian conscience, hence it is danger to the community and a
justification for ending his life in order to preserve life and public safety. Death penalty is not
just a social status, but it is also related to religious texts, which became a historic unanimity
of our societies on the other hand. The two cases are linked in fact; Religious texts are in the
depths of the people, their habits, customs and traditions. However, we must strive for the
idea of (change of provisions by pass of time) in order to commute what can be mitigated
with the maintenance of the principle. Although death penalty is of exceptional and serious
penalties, which is not implemented only after a long trial and discuss to ward it off and
171
enable the accused to prove his innocence, yet I agree with those who advocate for its
maintenance because its abolition will lead to the weakness of the prestige of power,
widespread of murder and the return of a culture of revenge, especially, we live in tribal Bedouin community which still believe in the values of the tribe and revenge. The continuity
of the penalty is likely to preserve the lives of innocent people, reduce and denounce the
crime rate rejected by the public because such case would not only put opinion or spread
personal satisfaction, as we must approach the social vision on the ground attempt to
humanize the Penal Code and go away from the spirit of revenge with its continuity as a
necessity for the reservation of people's safety and security. With the exclusion of extremist
ideas, such as the stoning of adulterous, the abandoned of prayer, recurrence of drinking
alcohol, or apostasy from religion, and choose the least painful methods like the sword to
execute the sentence. I think that the new judiciary system in the Kingdom of Saudi Arabia
would reduce the occurrence of an excessive of this penalty.
Notwithstanding, there was the Court of Cassation in the past as the only reference of the
sentence, while in the new system there are First Degree Courts, then the Courts of Appeal
which is trying the sentences applicable to appeal, issued by resumption of the provisions are
issued by First Degree Courts, then by the High Court which revise judgments and decisions
issued or supported by the appellate courts of murder and other important issues, and this
would achieve a higher degree of accuracy investigate, and review of provisions in a larger
space.
172
Death Penalty in Syria
Prepared by:
Abdel Rahim Ghamaza
Secretary of the National Organization for Human Rights in Syria
Dr. Ammar Qurabi
Chairman of the National Organization for Human Rights in Syria
The National Organization for Human Rights
Syria-Damascus
Fax: 00963115327066
Phone: 0096393348666
Email: [email protected]
[email protected]
www.nohr-s.org
173
First: Introduction
Concept of the penalty – commutation and tenseness – means of implementation – attempts
of definition
1. Conception of death penalty
That penalty was not specific in a principle, as it was an individual revenge, which is
different from being instinctive reaction. But with the evolution and the establishment of
groups, principle of retribution entrenched, which the religion was of a significant impact in
its recognition.
Then the idea of the distinction between serious crimes and trivial crimes has appeared and
then the legislations frivolous tensed punishment for the former crimes and commuted them
for the latter. Later, societies developed the most important principle which is that no penalty
without a criminal statement leading that death penalty would not be applied unless stipulated
in advance at a branch of the legal system.
2. Commutation and Tenseness
In its initial stages, the penalty tended to tenseness represented in the killing or expulsion
from the group leading itself to killing, and then penalties restricting freedom has emerged.
3. The Evolution of the means of implementation:
With the evolution of humankind also means the implementation of the death penalty
evolved, as it was implemented in old legislation by stoning, dismembering the offender,
burning, drowning or cutting his head. The penalty was implemented collectively and then
evolved into hanging then guillotine then the electric seat and injection by a substance or
suffocation by gas, which the majority of thinkers and scholars of criminal law considered
that those ways and means and the collective implementation as the evidence of brutality and
underdevelopment.
Through what has been mentioned we can conclude to the following definition:
death penalty is recognized by society applied on whoever commit a serious crime stated in
the penal code under a ruling issued by the judiciary.
4. Controversy on death penalty and views of legal experts:
death penalty had been criticized by many prominent criminal law legislators working in the
field of combating crime. The controversy at the beginning of the 20th century showed a basic
issue for scientists and philosophers of crimes and penalties.
Additionally, other experts replied to the arguments put forward by opponents to this penalty.
A. the arguments of the inclination against the penalty:
1. the supporters of this inclination regard that this penalty expresses revenge and the
modern penal science exceeded the idea of revenge opposing civilization and human
development in addition this penalty goes up against the objectives of the modern
punishment represented in the reform and rehabilitation of the criminal.
2. the penalty goes up against the principles of justice as it does not take into
consideration differences between criminals
3. it can not be corrected after implementation in case that evidences appeared proving
the innocence of that person or to renege the mistake of courts in estimating
evidences.
4. that penalty is not based on a legal basis and no one has the right to take a person's
life.
174
5. it lacks a positive effect.
B. the arguments of the inclination supporting the penalty:
1. the penalty can not be described as a revenge, it achieves equality and justice by
retribution in particular in cases of murders
2. it is a legal punishment because it is the same kind of the offender's crime
3. achieve the target of society concerning deterrence
4. the possibility of error in this penalty is the same possibility in other crimes. In
addition the recognition of this penalty by the legislator is different than the error of
judges in the estimation of evidences
5. that penalty has a good effect on the reduction of crimes because of the deterrence
Second: crimes deserving by death penalty
1. The development of civilization and the reduction of crimes deserving death penalty.
Because the body of the research includes the Arab World, it is important to shed a historical
light on the development effect on the reduction of crimes deserving death penalty
A. Islamic Legislation
Killing punishment or death penalty is applied on some crimes in the Islamic legislation
represented in adultery of a spouse, apostasy and conversion from Islam, prostitution,
retribution and some crimes of abandonment by some legislators such as killing a spy and
dangerous criminals.
- Ordinary and exceptional laws
Due to human progress and the spread of human rights principles the criminal law has
developed in different Arab countries as crimes deserving death penalty were excluded to
crimes relating to the national security and premeditated murders. The exceptional laws also
stated that penalty in case of martial law
1. Crimes against national security
Most Arab penal legislations derived from the Egyptian laws that derived its statements from
the French law taking into consideration the Egyptian and Arab reality.
The Egyptian penal code stated in an article that death penalty is for crimes relating to the
external national security in articles (77-78-79-81) and those relating to the internal national
security in articles (88-89-91-92-93).
In addition, the Syrian penal code stated crimes against the external national security
deserving death penalty in articles (263-264-265-266) and crimes relating to the internal
national security in articles (298-305).
In the Lebanese legislation, death penalty is stated for crimes against the external national
security according to articles "273, 274, 275, 276". It states also the penalty for murders
accompanied by a stressed circumstance by articles 549.
In addition to what has been stated by exceptional laws issued during imposing martial law
and emergency law that last in the Arab countries for a long time.
2. Murders
175
All Arab penal codes stated the murders with premeditation as it has been mentioned in
article 230 of the Egyptian penal code and article 235 of the Syrian penal code, these articles
have equals in all Arab penal codes.
The competent judicial body:
The judicial body entitled to consider crimes against the external and internal national
security in the majority of the Arab world are exceptional courts differs from their names
according to the country. They are state security courts and exceptional courts and field
courts.
The normal judiciary "criminal courts" may consider some cases out of internal and external
pressures especially in the late decade with the emergence of some human rights
organizations active in human rights field. Even these courts are subjected to in most cases
the influence of the ruler and the security system. As to murders, the competent judicial
authority entitled to consider these cases are the criminal courts.
176
Third: Guarantees and their Efficiency
1. Guarantees
The legislator tried in most Arab countries to surround death penalty by guarantees ensuring
the good application for this penalty. The most prominent of these guarantees are:
A. clemency and compassion
The court considering a case has the right to use clemency and compassion and other reasons
of commutation whether they are legal or exceptional to commute the judgment or replace the
death penalty with hard labor for life or temporarily.
B. ruling contest:
The law allowed the convicted felon "without a trial" to contest the ruling for reasons of
opposing law or wrong explanation or definition or application or not justifying the reasons
of the court conviction and its estimation.
C. the ratification of the ruler on the ruling whether he is a president or king and giving
him the right to pardon or commutation "that includes the rulings of the exceptional
courts".
D. taking the Mufti opinion, in Egypt
2. The adequacy of the guarantees
a. one of the most important guarantees that should be available for the criminal is the fair
trail before an independent judiciary
Unfortunately, the measures of the fair trial in the third world's countries in general and the
Arab countries in particular are not available in procedure nor the application of legal
examples for crimes stated in penal codes in particular crimes attributed to the convicted
felons relating to the internal and external national security.
The exceptional or normal courts do not enjoy independency or neutrality. The executive
authority and the security systems control the independency of judiciary and judges. Most
judges in these countries are subject to the control and violation of the executive authority
and they follow their orders. So, even if the fair trial and judiciary independence is not
available, it is questionable.
b. Trials Observation
Most Arab countries do not allow the internal and external civil society organizations to
monitor trials. The absence of monitoring trials allows courts that do not enjoy independency
and allow the executive authority to use the procedures and rulings arbitrarily overthrowing
the rule of law and justice.
c. securing the freedom of defense lawyers in crime of national security or in normal crimes
and not harassing defense and helping it to get information. That is not available also in most
Arab countries. These are some guarantees that should be available.
Fourth: Sentences
177
The diagram of death sentences declines continuously. This diagram is affected by some ups
in some security cases in some countries however in general it declines affected by:
1. the spread of principles and culture of human rights
2. the emergence of activists in human rights
3. openness to civilization
4. the enormous progress in the field of communication and media
No statistics is available on death sentences. The number of announced sentences before state
security courts and criminal courts declines continuously in the last decade that was rarely in
Syria, for example, they are so few in Syria do not exceed one yearly and the application
follows hardly the minimum standard or even without them in some years.
The position of the National Organization for Human Rights in Syria to death penalty:
Death penalty does not fit with the ongoing attempts to consolidate the influence and change
desired in the area of human rights in our region. Death penalty takes the right to life, which
is irremediable, and it can not be corrected after being implemented. Death penalty means
crushing the basic human instincts- the will to survive. As to the view that there is a "humane
way" in the execution of the penalty, it is nonsense; People sentenced to death suffer from the
horrible predetermined moment of death. Additionally, the way of killings is not always
practically clinical or free of pain; in addition we add torture to the penalty.
Some people consider that the importance of death penalty stems from being a deterrent
penalty for each violator of laws or terrorists, but should we deter terrorism by terrorism?
Surely we must fight against terrorism and criminality, but this must be done with respect for
human rights, not violations of the civil and political rights of any person. We did not note in
any country that the proportion of crimes had declined because of the application of the death
penalty for criminals, and there is no scientific evidence clearly demonstrating that the death
penalty is a deterrent, otherwise the penalty would have been shrunk in the United States, or
in China, Saudi Arabia or South Korean where these countries applies the penalty most and
we find that numbers of the victims of that penalty increase over the years rather than
decreasing because of deterrence.
We have now a question as to why the marginalized groups in society is subjected to the risk
of death penalty more than other categories? Undoubtedly, the large gap in scientific analysis
of the root causes of crime in Syria has an impact on the development of radical solutions
other than "death penalty" for the criminal phenomena.
The National Organization for Human Rights in Syria and its rules of procedure confirmed
that the only reference for the international Bill of Human Rights. The Organization confirms
its complete independence from other any political or partisan reference, and work towards
achieving the goals set forth in the International Bill of Human Rights with all charters.
Because the International Bill represented by the Universal Declaration of Human Rights and
both the International Covenants in addition to the optional protocols of combating death
penalty as the organization combats also against the death penalty.
The National Organization considers human rights indivisible and a universal system in the
purposes and machinery. So, it approves what is stated in chapter III of the Universal
Declaration of Human Rights, Chapter VI of the International Covenant on Civil and Political
178
Rights, the Second Optional Protocol to the Covenant and for the abolition of the death
penalty.
The International Covenant on Civil and Political Rights states in chapter III under Article
VI:
1. the right to life is an inherent for every human being, and law must protect that right. No
one shall be deprived of his life arbitrarily
4. Any person sentenced to death has the right to seek pardon or replacement of the sentence.
Amnesty, pardon or replacement of the death penalty may be granted in all cases.
5. Death penalty may not be sentenced for crimes committed by persons below eighteen years
of age, and for pregnant women also.
6. Nothing in this article shall be invoked to delay or prevent the abolition of capital
punishment by any State Party to the present Covenant.
The Universal Declaration of Human Rights adopted and published in December 10, 1948:
Article 1: All human beings are born free and equal in dignity and rights. They are endowed
with mind and conscience and should treate each other in a spirit of brotherhood.
Article 5: No one shall be subjected to torture or, cruel, inhuman or degrading treatment.
The Syrian Constitution and the cancellation of death penalty:
The Syrian Constitution did not focus on the right to life. On the contrary, Syrian law
punishes many crimes by death penalty. Reality refers to the fact that there are no measures
towards the abolition of this penalty. The expansion of the use of the death penalty under the
special penal decrees as the law of affiliating with the Muslim Brotherhood organization (No.
49), and in several cases in laws of combating targets of the revolution and the socialist
system and the security of the Socialist Arab Baath Party. But at the same time, the law gave
the convicted sentenced to death penalty the right to seek pardon or replacement. The
president can limit the use of the death penalty, because the constitution gave him the right
under Article 105 issuing special pardons and rehabilitation. It is possible to abolish of the
death penalty from the lexicon of Syrian penalties and the Syrian society will accept this step
on condition to work seriously to that target, and this can be attained only by cooperation
between the Syrian government and human rights organizations and activists of public affairs
in addition to the intellectuals and writers amid absence of a real hindrance in the cultural
reference to Arab civilization that can prevent the development of legislation to limit the use
of death penalty and abolishing it. What is said about promoting the death penalty in
monotheistic religions goes back to not understanding the characteristics of these religions
including Islam and the reference texts and the possibility of a more humane readings differ
from the traditional narrow readings giving different views for many legislative aspects,
which represents an important tool in the reconstruction of the human mind and firming up
the human right to life. But we must adopt the method of gradual progress on the road to
abolish the death penalty, for example in Azerbaijan which is a very good example where the
death penalty abolished in 1998 gradually as follows:
October 1993
Heydar Aliyev was elected president, and a moratorium on executions de
facto was imposed. However, it continued sentencing to death at least to
144 people, between 1993 and 1998
October 1994
Death penalty was abolished for women
179
November 1995 A new Constitution was adopted that retained the death penalty as an
exceptional punitive measure until it has been fully canceled, for crimes
against the state, against any individual's life and health.
May 1996
The death penalty was abolished for men aged over 65 years, and the
number of crimes punishable by death was reduced from 33 to 12 crime
crime
August 1997
The President of the Supreme Court, publicly expressed support for the
abolition of the death penalty
January 1998
President Aliyev had stated "I think that the strengthening of the fight
against crime reduces, in itself, the number of criminal acts. At the same
time, "humanizing" our policy, will create, for people a sound attitude
toward violations and crimes.
February 1998
Parliament approved by majority of 104 votes, against three votes, to
adopt the proposal of the President of the Republic to abolish the death
penalty. Consequently, the death penalty was abolished
The difficulties facing us, such as the growing phenomenon of extremism and infidelinzation
which threatens the intellectual and political life in most of Arab community and cause loss
of life and terrorizing thinkers by the name of religion, must not prevent us from
understanding the inevitability to work towards higher levels of self-esteem in order to enrich
the Universal Declaration of Human new rights is a fundamental principle that the state can
not do as it wants in the lives of its citizens. Humanity had already realized such achievement
by the prohibition of torture and slavery.
The number of States that have abolished the death penalty had reached 124. so Syria has to
take the decision of the abolition of that penalty of the national criminal system and ratifies
the Second Optional Protocol to the Covenant on Civil and Political Rights concerning the
abolition of the death penalty, as well as the ratification of the Statute of the International
Criminal Court, and the conformation of Syrian legislation with all covenants, and relevant
international treaties and the adoption of a fair criminal policy based on ensuring the rights of
prisoners to life and human dignity, rehabilitation and reintegration, in a fair and independent
judiciary.
Recommendations:
The National Organization demands Syrian authorities to follow the following steps on the
road to gradual abolition:
- Strengthening guarantees of fair trials; for example, the unanimity of all members of the
court when sentencing death penalty.
- Adoption of the degree of Appeals routinely, without the request of the convicted
person,
to
review
cases
in
which
death
penalty
were
issued.
- Cancellation of all legal chapters which state a death sentence in political issues and
issues of opinion and issues associated with freedom of belief.
- to Promote access to the amnesty.
- to Support the independence of the judiciary.
180
- to stimulate thinking in religious issues related to human rights, and support the
orientation of rereading cultural and heritage references in the direction of serving the
issues of humanity and confirm human rights.
- Working on the creation and development of democratic climates as a condition of the
protection of human rights and public awareness in all fateful issues and foremost the
right to life.
- Stressing on the distinct role of education in the fields of gaining awareness in the area
of fundamental rights and the maintenance of the human spirit.
- Ratification of international covenants in general and the Second Optional Protocol in
particular.
- Calling on the intelligentsia to launch operations of awareness for the abolition of the
death penalty during meetings and special discussions at the level of universities and
cultural associations and public forums.
*****
181
Fifth: Conclusion
Research Findings
Since over a century the civilized world began moving towards the abolition of the death
penalty, whatever the consensus supporting, which is marked by suspected revenge and on
the other hand it is inconsistent with the philosophy of punishment as a reform for the
offender
and
the
possibility
of
reforming
fault.
Michigan State abolished the death penalty in 1874 and Portugal in 1866 and Netherlands in
1870 and some provinces in Norway and Switzerland in 1902, Sweden in 1921, Denmark in
1930 and Spain in 1932 and France in 1981. Then, countries of the European Union
abolished the death penalty and made it a condition for accession to the European Union.
Such punishment including the tendency of revenge and not to repair the fault with the
possibility of perpetrating it again despite the physical pain as it takes the spirit that
represents life.
Also it goes inconsistent with the philosophy of reform and rehabilitation of the offender
which is the object and purpose of punishment. It also did not realize deterrence and it is be
incompatible with human rights. The cancellation is considered the measure of the state
civilization.
As to countries still apply this penalty, they must provide all guarantees of the local civil
institutions observation internationally and locally to ensure fair trials and the application of
international bases and determining the legal texts and precision in its wording so as not to
allow wide areas or large tracts in explaining and interpreting texts.
- To Cancel all exceptional laws in the States of the Arab countries and lifting the
martial law and the abolition of emergency law. Independence of the judiciary and the
application of this principle actually.
- To ensure the complete freedom of Defense in the crimes punishable by death.
- The availability of provisions to be under appeal and review.
- The cancellation of the domination of the executive authority over judiciary and the
legal profession.
- Cancel all exceptional courts, in any form whatsoever.
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Death Penalty in Yemen
183
Definition:
Yemeni legislator had not set a specific definition of the death penalty either in the Penal
Code or Criminal Procedure Codes which are the adopted laws in Yemen. While the Code of
Criminal Procedure attributed the provisions with no legal text to Islamic law by the
definition of the death penalty in Article (564), "the loss of the convicted person's life is
prohibited and punishable by killing or death.
Or it is the "loss of the victim's life as an implementation of the judgment issued by the
competent criminal court. It is a penal punishment leading to the eradication of the convicted
person from life as well as the consequences to strip him of his civil rights and deprivation of
rights and privileges which he was enjoying prior to the loss of his life according to his
humane nature and law ".
The Criminal Procedure Code V Part II referred to the way of implementing the death
sentences.
In the text of the article "485" law showed that there are three types for the implementation of
the death penalty, saying that " the death penalty is implemented by cutting the convict's neck
by a sword or to be shot to death without torture and within the rules of highway robbery the
implementation is done as stipulated in the sentence."
Death penalty in highway robbery "is the implementation of the crucifixion penalty by tying
the sentenced person after his execution in a visible place to the people for a period
determined by the sentence and not more than three days. Article (486 c.p) A.
The execution by stoning: it is implemented by throwing stones to death and people are
called to witness the execution and start stoning and witness the implementation a variety of
believers "It is clear that stoning and crucifixion in the circumstances prescribed by law
include the concept of death to the Yemeni legislature to update its meaning.
The importance of the study: the importance of this subject comes from faith in the protection
and promotion of the right to life and to make these principles of priority to Muslim beliefs
and who believe in any of the heavenly messages because self-preservation is one of the most
important purposes of the five purposes of Islam aimed to it. The importance of this issue is
clear in view of many cases that have been found not guilty after the execution.
In addition to, the unfair trials those are not consistent with the principles of fair trials in all
forms as a result of many reasons, including lack of independence of the judiciary and the
judge to face heavy pressure by some of his superiors and the domination of the executive
power. Additionally, the importance of this study is clear in more reading on death cases and
how to apply safeguards, and the application of these safeguards and its adequacy.
Moreover, this study makes us consider deeply the death penalty and what is its purpose, if it
is deterrence, is that penalty deterrent for the commission of crimes punishable by death
through a comparative study on States which have abolished the death penalty and the States
in which the penalty is still in place.
There is a study raised about this subject worth mentioned at this point, as the Medical
Association in New York City in 1903 has demanded to develop legislation allows killing
patients affected by cancer or (TB) in the final stage of the disease and also allows killing the
crippled person with no hope of recovery. The outcome of the survey on doctors responded
by New York City (3703) was 80% of them support this kind of murder.
In France in 1912, the Court acquitted one of the members of the prosecution for killing his
wife paralyzed. In 1925, the Court acquitted the girls that killed her fiancé affected by cancer
after his urgency and in 1948 an Austrian woman killed her husband who is afflicted with
cancer and she was acquitted also. In 1975 a famous doctor in Switzerland killed a number of
people over the age of eighty as they were suffering from a coma for months. The doctor has
been suspended because of this, but the people of the city of Zurich have signed a petition
184
calling for the enactment of a legislation that allows this type of killing and the doctor has
already returned to his work without incurring any liability upon him. This study has been
cited in crimes called mercy-motivated killings. This study has raised big significant positive
and negative reactions, but after this study that there is some States' legislation has gone to
alleviate the killer at the request of the victim, including Lebanese law Article (552) Syria
(538) and Italian Article (579).
The death penalty has expanded and become affecting many crimes of war and politics,
opinion, expression, publication and belief. This expansion may be circumvented to be
implemented either according to an article that left a power to the judge to assess the
implementation of the death penalty and that is what is called illegalized circumvention and
the assessment of bigger age than the real age of some juveniles accused of crimes punishable
by death. There are more than twenty juveniles in Yemen awaiting execution in addition to
many cases have been found not guilty after being sentenced to death and it was too late and
most of them are from the poor and the needy.
Justice in the world is relative, and it is impossible to apply an absolute penalty by a relative
justice. All the Arab countries entered in the system of justice reform so how it has the right
to take the life of persons; it is not valid for this.
The history of death penalty and its conditions:
When we discuss the penalty in general, we will know the history of death penalty, in
particular. The motive behind the penalty is retaliation from the perpetrator of this crime.
This revenge was in the form of self-defense of community or defense of the group or to
reduce crimes of revenge. At the same time, the penalty becomes an authority in the hand of
the President of the group. The philosophy of the penalty has gone through different stages
each stage shows development occurred to the community. It was at first an instinctive
reaction to avenge the perpetrator and then the penalty became a form of penance for the
crime. After the emergence of divine religions and sanctities of human life, the penalty
acquired a religious feature and then when the political power has emerged, the penalty
acquired a political nature since the crime is an aggression against political power, so the
penalty at this stage took the nature of revenge led by the political power against the
perpetrator aiming at achieving the idea of prevention is which is known as general
deterrence year, which seeks to the intimidation of every member of the community not to
commit the crime, through the allocated penalty.
Death penalty is considered one of the oldest legislations adopted by the laws of Yemen. As
mentioned, the Islamic Sharia is the main source of Yemeni laws consequently it contained
many crimes punishable by death. Many of the doctrines and jurisprudence adopted the
penalty in the cases of multiple crimes and the possibility to reform the perpetrator is low.
That is what has been stated by Yemeni law and people in favor of this refer to talk to the
Messenger of Allah (the killing of wine drinker in the fourth time) or by what has been
narrated about him (the penalty of the magician to be killed by sword).
We believe that the history of mankind and in various stations, history has witnessed many of
the stations in which lives have been lost for many justifications including justification in
favor of the authority and the execution of opponents, and this is the case since the
emergence of power and all stages of power. That is what the Yemeni people has witnessed
in particular during the front governance and executions that affected many Yemeni militants
through the internal fighting to take the wealth of the rulers or the expansion of hegemony
and who survived from killing in wars does not survive from the legal issue and execution
after the war with a charge of conspiracy.
This is the condition in the modern era, whether in the bottom of society or the courts, which
are subject to many laws that sentence death penalties and lavished on its use and that is what
would be considered in the overall study. So, it is clear in this study that the death penalty in
185
some Yemeni laws increase than the number of legal articles allocated to them to be clearly.
The Yemeni law may have been directly affected by some of Yemeni laws and particularly in
Jordan and Egypt which are laws of live under emergency laws for decades in addition that
these laws were issued at the time of war with Israel.
However that does not prevent the stress on the privacy of Yemen as it is not just blindly
follow to the laws of those countries but it reflects a significant similarity between these and
this similarity is clear in the lives of people and citizenship in those countries.
The origin of death penalty:
Although death penalty is one of the oldest penalties but it did not apply the Islamic Sharia
rules accurately and clearly. It has mentioned in Islamic Sharia three sections for death
penalty as follows:
1. Retribution: it has other two types:
a. crimes against the life directly leading to killing
b. crimes against not against the life that affects the body but does perish it
2. Rule: This is stated by Allah in Koran such as "adultery – prostitution –adultery –
drinking wine – apostasy - theft - libel). Death penalty in the Yemeni law is stated for
four of them (prostitution – highway robbery- adultery - apostasy) Article (12) c. P
3. Penalty of extradition: it is taken by the Yemeni legislature and by the discretion of
the judge in terms of reality and the way of the commission of the act and the person
who actually perpetrated the crime.
This study will focus on:
Chapter I
First: crimes punishable under the Penal Code
Part I
Death for retribution
Death for retribution even if exempted (cases of extradition in retribution rules)
Part II
Death penalty for civilians
Death penalty for militants
Part III
Death penalty as an Islamic rule
- Adultery
- Apostasy
- Prostitution (highway robbery)
Chapter II
Crimes punishable in other laws
Part I:
Crimes punishable in the Military Penal Code in 1998
Part II:
Crimes punishable in the law of trafficking and illicit use of narcotic drugs and psychotropic
substances in 1993
Part III
Crimes punishable in the law of the fight against crimes of kidnapping and armed
interception in 1998, and its amendments
186
Chapter III
Part I
Guarantees of the death penalty in the Yemeni law
Part II
Guarantees of the death penalty in international law ratified by Yemen
Part III
Adequacy
Chapter IV
Part I
Death sentences (implemented and not implemented)
Chapter V
Part I
The vision of the death penalty in Yemen and the extravagance of the legislature in its
application
Part II
The application and the pronunciation of the death penalty
Part III
Vision of the safeguards surrounding the death penalty and its adequacy
Part IV
A special vision on the retention or the abolition of the death penalty
Part V
Proposals for new safeguards to ensure the non-abuse of the death penalty
187
Chapter I
First: crimes punishable under the Penal Code
Part I
Death for retribution
The legislator stated the death penalty as retribution in article (234 penalties)
1. Who killed an immaculate Muslim shall be punished to death unless exempted absolutely
or for compensation or the offender has died before judging with no regard to the victim's
consent prior to the occurrence of the crime. By this article, the death penalty for retribution
can be discussed.
Article (141) penalties state the death penalty for four cases if the act resulted in the death of
a human being:
1. Fire and explosion
2. Exposing means of transport and communications in jeopardy
3. Drowning
4. polluting by toxic substances
B. Crimes punishable by death for retribution
The Yemeni Penal Code included two categories included by death penalty for retribution:
First category: crimes committed by ordinary people
Second category: crimes committed by militants involving military affairs
The first category is covered in articles (234), (249) and (280); death penalty shall be applied
in the following:
1. Who is famous for evil and exempted from retribution by amnesty or other reasons.
2. who used a brutal means in the murder and exempted from retribution
3. Who killed two or more persons and exempted from retribution.
4. Who had killed deliberately and exempted from retribution.
5. who colluded with others to commit a crime other than murder
6. who concealed a deliberate murder
7. Who killed a pregnant woman.
8. who killed a civil servant during his work
9. who killed a civil servant because of his work
10. who killed a person on the occasion of his work
11. Who killed a person assigned to a public service during the performance of his work.
12. Who killed a person assigned to a public service because of the performance of his
work.
13. Who killed a person assigned to a public service on the occasion of the performance
of his work.
14. the crimes was followed or included kidnapping, killing, adultery or sodomy (At the
same law, death penalty is stated against the perpetrator as a retribution if the offender
repeated the crimes more than once or if he committed one of the following acts:
1. husband's consent on adultery to his wife
2. the consent of adultery to a first degree female relative
3. the satisfaction of adultery to those who have authority over them
4. the satisfaction of adultery for those who have the responsibility of bringing
up
Category II: articles (226), (227), (228) these articles apply death to anyone who committed
any of the following acts:
1. refused to carry a weapon against the enemy
2. The non-use of arms against the enemy.
3. Hiding when confronting the enemy.
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4. escape from the enemy
5. leaving the militant site without permission
6. surrender to captivity
7. inciting others to refuse bearing arms
8. inciting others not to use weapons
9. inciting others to hide
10. the incitement of others to flee
11. inciting others to leave the site
12. inciting others to surrender to captivity
13. who resisted his leader and the resistance resulted in the death of the leader or any
person in the line of his military
14. every commander in military, naval or air affairs, gave the enemy before the use of all
available means of defense or order to stop fighting or got the flag down or delivered
to the enemy a ship or an aircraft, weapons or, a bastion or port or an airport or other
prepared for defense
A. Crimes punishable by death as an Islamic rule:
a. Crimes of adultery:
The Yemeni legislator stated in the Penal Code the execution in articles (263, 264), as the
penalty shall be stoning to death
1. adultery of a married man
2. adultery of a married woman
3. sodomy with a married man
4. sodomy with a homosexual person
B. Crimes punishable by death in the case of apostasy:
Stated in Article (259), which decides punishment for the following acts:
1. apostasy from Islam (without defining the meaning of apostasy, following examples
of it)
2. pronouncing words on contrary to the rules of Islam and its bases
3. doing acts publicly on contrary to the rules of Islam and its bases
The Article did not specify words and acts on contrary to the rules of Islam
C. Crimes punishable by death in the case of discretionary:
Stated in Article (306) penalties in the following cases:
Who stopped people by force in a public street and horrified them for life, money or honor
who stopped people by force in the desert
Who stopped people by force in a building
Who stopped people by force in sea
who stopped people by force in a plane
Who stopped one of the people in any of the above-mentioned places and occurred what has
been mentioned in the preceding paragraphs
The punishment shall be amputation of the hand from wrist and the left leg from heel if he
took the money belongs to others and is crucified in the case that the act has been
accompanied by murder
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D. Crimes punishable by death for prostitution that threaten state security; it is defined by
Article (124) as "a dissension from the State for stubbornness" that can be committed by
militants and non-militants.
Article (121 with paragraph 3 of Article 128) death penalty for the following acts:
1. the delivery of defensive confidential information to a foreign state
2. the delivery of political confidential information to those who work for the interests of
a foreign state
3. the delivery of diplomatic confidential information to a foreign state
4. the delivery of diplomatic confidential information to those who work for the interests
of a foreign state
5. the delivery of economic confidential information to a foreign state
6. the delivery of economic confidential information to those who work for the interests
of a foreign state
7. the delivery of industrial confidential information to a foreign state
8. the delivery of industrial confidential information to those who work for the interests
of a foreign state
9. the delivery of confidential writings to a foreign state
10. the delivery of confidential writings to those who work for the interests of a foreign
state
11. the delivery of confidential reports to a foreign state
12. the delivery of confidential reports to those who work for the interests of a foreign
state
13. the delivery of confidential documents to a foreign state
14. the delivery of confidential documents to those who work for the interests of a foreign
state
15. the delivery of confidential drawings to a foreign state
16. the delivery of confidential drawings to those who work for the interests of a foreign
state
17. the delivery of confidential maps to a foreign state
18. the delivery of confidential maps to those who work for the interests of a foreign state
19. the delivery of confidential designs to a foreign state
20. the delivery of confidential designs to those who work for the interests of a foreign
state
21. the delivery of confidential photos to a foreign state
22. the delivery of confidential photos to those who work for the interests of a foreign
state
23. the delivery of anything of confidential nature to a foreign state
24. the delivery of anything of confidential nature to those who work for the interests of a
foreign state
25. the delivery of information regarding formations of the armed forces to a foreign state
26. delivery of information regarding formations of the armed forces to those who work
for a foreign state
27. the delivery of information relating to the armed forces to a foreign state
28. the delivery of information relating to the armed forces to those who work for a
foreign state
29. the delivery information on the movements of the armed forces to a foreign state
30. the delivery information on the movements of the armed forces to those who work for
a foreign state
190
31. the delivery of information relating to the equipments of the armed forces to a foreign
state
32. the delivery of information relating to the equipment of the armed forces to those who
work for a foreign state
33. the delivery of information on stocking the armed forces to a foreign state
34. the delivery of information on stocking the armed forces to those who work for a
foreign state
35. the delivery of information relating to members of the armed forces to a foreign state
36. the delivery of information regarding the strategic plans of the armed forces to a
foreign state
37. the delivery of information regarding the strategic plans of the armed forces to those
who work for a foreign state
38. the delivery of information to a foreign state about actions and measures taken for the
detection of crimes or those who work in their favor
39. to obtain information relating to the aforementioned to be delivered to a foreign state
or those who work for its benefit
Article (128) and penalize by death to the following intentional acts:
1. contacting a foreign state that results in the damage of the military status of the
Republic
2. contacting a foreign state that results in the damage of the political status of the
Republic
3. seek with a foreign state that could damage the diplomatic status of the Republic
4. contacting a foreign state that results in the damage of the economic status of the
Republic
5. contacting a worker on behave of a foreign state that results in the damage of the
military status of the Republic
6. contacting a foreign state that results in the damage of the political status of the
Republic
7. contacting a foreign state that results in the damage of the diplomatic status of the
Republic
8. contacting a foreign state that results in the damage of the economic status of the
Republic
9. spying with a foreign state that results in the damage of the military status of the
Republic
10. spying with a foreign state that results in the damage of the political status of the
Republic
11. spying with a foreign state that results in the damage of the diplomatic status of the
Republic
12. spying with a foreign state that results in the damage of the economic status of the
Republic
13. spying with who works for a foreign state that results in the damage of the military
status of the Republic
14. spying with who works for a foreign state that results in the damage of the political
status of the Republic
15. spying with who works for a foreign state that results in the damage of the diplomatic
status of the Republic
16. spying with who works for a foreign state that results in the damage of the economic
status of the Republic
17. the delivery of news not to be disclosed to a foreign state
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18. the delivery of news not to be disclosed to a worker on behalf of a foreign state
19. the delivery of information not to be disclosed to a foreign state
20. the delivery of information not to be disclosed to a worker on behalf of a foreign state
21. the delivery of forbidden objects to a foreign state
22. the delivery of forbidden objects to those who work for a foreign state
23. the delivery of machines not to be disclosed to a foreign state
24. the delivery of machines not to be disclosed to those who work for to a foreign state
25. the delivery of forbidden documents to a foreign state
26. the delivery of forbidden documents to those who work with a foreign state
27. the delivery of forbidden maps to a foreign state
28. the delivery of forbidden maps to those who work with a foreign state
29. the delivery of forbidden drawings to a foreign state
30. the delivery of forbidden drawings to those who work with a foreign state
31. the delivery of forbidden photos to a foreign state
32. the delivery of forbidden photos to those who work with a foreign state
33. the delivery of anything other than what was stated to a foreign state or a worker for
its interest
Article (125) of the Penal Code, its text opens the multiple death penalty application, as it
decided death penalty to the following acts:
1. who commits an act threatening the independence of the Republic
2. who commits an act threatening the Yemeni unity
3. who commits an act threatening the integrity of the territory of the Republic
Article (126) stipulates the death penalty for anyone who commits one of the following acts:
1. who damages or destroys or defect or malfunction a military site
2. who damages or destroys or defect or malfunction military bases
3. who damages or destroys or defect or malfunction a military building
4. who damages or destroys or defect or malfunction of military factories
5. who damages or destroys or defect or malfunction a military site ships
6. who damages or destroys or defect or malfunction road links
7. who damages or destroys or defect or malfunction means of transport
8. who damages or destroys or defect or malfunction public utilities
9. who damages or destroys or defect or malfunction ammunition and supplies,
medicines or other of what has been prepared to defend the state or what is used for
that purpose
10. who misused or ill whatever used to defend the state
Article (127), which punishes by death to the following acts:
Joining the armed forces of a State in a state of war with Yemen
1. the extradition of a member of the armed forces of the State in a state of war with
Yemen
2. returning one of the prisoners of the enemy to their ranks
3. providing enemy with soldiers
4. providing enemy with individuals other than soldiers
5. providing enemy with money
6. guiding enemy (it is not determined to which thing to be guided)
And Article (129), which decides the death penalty to the following acts:
1. the engagement with others in the commission of any of the past crimes
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2. inciting others to commit an offense of what has been mentioned (these are
unspecified duplication for death penalty as instigation to spy with the enemy
deserves death and the incitement to destroy a military aircraft as well as in other
previous crimes)
Chapter II
Second: the Military Penal Code:
Part I:
a. (m 14) death penalty shall be applied if the offender is a military enemy and tried to
enter disguised aiming at the sabotage or espionage to:
1. military or security base
2. War site
3. military center
4. military institution
5. military workshop
6. a camp
7. military camp
8. any site of the Armed Forces
9. any site of the police
10. any site of security
Taking into consideration that the punishment 8, 9 and 10 made the door open for a countless
number of death sentences, as they multiply by the military or security sites because the text
used the phrase (and any site.) It is understood that the military, security and police sites are
countless including the bathrooms and cemeteries, kitchens, warehouses, etc. These things
fall under the word (a military site) as long as it is under the authority or the use of a military
organization.
Article (15) death penalty shall be applied in the following cases on militants:
1. the surrender of a garrison to the enemy
2. The surrender of a military site.
3. To hand over a military site.
4. To hand over weapons to the enemy.
5. To hand over ammunition to the enemy.
6. To hand over tasks to the enemy.
7. to hand over equipments to the enemy, or to facilitate the entry of the enemy to:
1. the territory of the Republic
2. to a city or more
3. to fortifications (or bastion)
4. to facility (or installations)
5. to a site (or sites)
6. to a port (or ports)
7. to an island (or islands)
8. to a store (or stores)
9. to plant (or plants)
10. to a ship (or ships)
11. to a plane (or planes)
12. to equipments
13. to the means of transportation
14. munitions
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15. to military missions
16. to rations
17. to food
18. to medicines
19. or others (this is open to a number of death sentences unspecified)
20. the delivery of a secret of defense to a foreign country
21. the delivery of defensive secret to enemy
22. the delivery of one of the secrets of defense to those who work for the interests of
the enemy
23. The damage of one of the secrets of defense.
24. Making one of the secrets of defense not fit for the benefit.
25. to get an access to a secret of defense to be delivered to the enemy
26. to get an access to a secret of defense to be delivered to a persons works for the
enemy
27. to provide enemy with weapons
28. to provide enemy with ammunition
29. To provide enemy with stores.
30. the surrender of soldiers under his command to enemy
31. To report news to a foreign state for treason.
32. to inform enemy any news for treason
33. to inform enemy any data for treason
34. to inform a foreign state any data for treason
35. to contact a foreign state himself
36. to contact a foreign state through a medium
37. to contact a foreign state through a medium or himself
38. To contact enemy without medium.
39. to offer surrender to the enemy
40. To offer truce to the enemy.
41. to lift the white flag to the enemy
42. To accept a truce offer to the enemy without being authorized to do so.
43. to publicize data in the battlefield rousing terror
44. to publicize data rousing terror
45. to spread rumors rousing terror among troops
46. to spread rumors rousing terror
47. to spread rumors rousing panic
48. to spread rumors rousing failure among forces
49. not performing assigned missions deliberately
50. not preparing assigned missions deliberately
51. the non-implementation of assigned missions
52. the non-performance of assigned missions
53. The non-insurance of assigned mission intentionally.
54. Impeding the progress of the armed forces.
55. Impeding the progress of a division of the armed forces.
56. Impeding the progress of a section of the armed forces.
57. Impeding the progress of the victory of the armed forces.
58. Impeding the progress of the victory of a section of the armed forces.
59. Impeding the progress of the victory of a division of the armed forces.
60. Seeking to impede the progress of the armed forces.
61. Seeking to impede the progress of the victory of a division of the armed forces.
62. Seeking to impede the progress of the victory of a group of the armed forces.
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63. Seeking to impede the progress of the victory of department of the armed forces.
64. Seeking to impede the progress of the victory of the armed forces.
65. to damage fighting operations
66. the intention to damage fighting operations
Article (24), which applies death penalty to the following acts:
1. to cause dissention between members of the armed forces resulting in the loss of a life
2. to contribute to creating a dissention between members of the armed forces, resulting
in loss of lives
3. the agreement with others to create sedition and resulted in loss of a life
Article (27), which approved the penalty on the following acts if deliberately:
1. the destruction of weapons
2. defecting weapons
3. damaging weapons
4. the abuse of manufacturing weapons
5. the abuse of repairing weapons
6. the commission of any act making weapons belonging to the armed forces unfit
7. damaging naval vessels
8. defecting naval vessels
9. breaking down naval vessels
10. the abuse of manufacturing naval vessels
11. the abuse of repairing naval vessels
12. the commission of any act making naval vessels belonging to the armed forces unfit
13. the destruction of planes
14. defecting planes
15. damaging planes
16. the abuse of manufacturing planes
17. the abuse of repairing planes
18. the commission of any act making planes belonging to the armed forces unfit
temporarily
19. the commission of any act making planes belonging to the armed forces unfit
permanently
20. the destruction of equipments
21. defecting equipments
22. damaging equipments
23. the abuse of manufacturing equipments
24. the abuse of repairing equipments
25. the commission of any act making equipments belonging to the armed forces unfit
permanently
26. the commission of any act making equipments belonging to the armed forces unfit
temporarily
27. the destruction of missions
28. defecting missions
29. damaging missions
30. the abuse of manufacturing missions
31. the abuse of repairing missions
32. the commission of any act making missions belonging to the armed forces unfit
permanently
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33. the commission of any act making missions belonging to the armed forces unfit
temporarily
34. the destruction of buildings
35. defecting buildings
36. damaging buildings
37. the abuse of manufacturing buildings
38. the abuse of repairing buildings
39. the commission of any act making buildings belonging to the armed forces unfit
permanently
40. the commission of any act making buildings belonging to the armed forces unfit
temporarily
41. the destruction of means of transpiration
42. defecting means of transpiration
43. damaging means of transpiration
44. the abuse of manufacturing means of transpiration
45. the abuse of repairing means of transpiration
46. the commission of any act making means of transpiration belonging to the armed
forces unfit permanently
47. the commission of any act making means of transpiration belonging to the armed
forces unfit temporarily
48. the destruction of public utilities
49. defecting public utilities
50. damaging public utilities
51. the abuse of manufacturing public utilities
52. the abuse of repairing public utilities
53. the commission of any act making public utilities belonging to the armed forces unfit
permanently
54. the commission of any act making public utilities belonging to the armed forces unfit
temporarily
55. the destruction of ammunitions
56. defecting ammunitions
57. damaging ammunitions
58. the abuse of manufacturing ammunitions
59. the abuse of repairing ammunitions
60. the commission of any act making ammunitions belonging to the armed forces unfit
permanently
61. the commission of any act making ammunitions belonging to the armed forces unfit
temporarily
Part II
Third: the Anti-trafficking and illicit use of narcotic drugs and psychotropic substances
law No. 3 of 1993
Section I
Article (33) included a number of death sentences on the following acts:
The export of narcotic substances with the purpose of trafficking
The import narcotic substances with purpose of trafficking
The production of narcotic substances for commercial purposes
The separation of narcotic substances for commercial purposes
Making narcotic substances with the purpose of trafficking
Extraction of narcotic substances with the purpose of trafficking
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B. Article (34) provides the death penalty on the following acts:
1. The ownership of narcotic substances with the purpose of trafficking
2. the possession of the purpose of trafficking in narcotic substances
3. having narcotic substances for commercial purposes
4. to buy a narcotic substances with the purpose of trafficking
5. delivered to others narcotic substances with the purpose of trafficking
6. sold narcotic substances with the purpose of trafficking
7. transferred narcotic substances for commercial purposes
8. to cultivate prohibited plants in accordance with table V of the law supplements
9. exported a plant of the plants mentioned in the law
10. imported or owned or possessed or received or transferred any of the prohibited plants
11. to handle narcotic substances for non-narcotic authorized purposes
12. the administration of a place for drug abuse
13. the preparation of a place for drug abuse
14. to create a place for drug abuse.
Article (35) punished to death on the following acts:
1. providing narcotic substances to others without a license
2. facilitating drug abuse
Article (41) endorsed the death penalty for the following acts:
1. beating one of the citizens assigned to the implementation of the law as resulted to
death
2. wounding one of the officers in the implementation of the law on drugs that led to his
death
Article (42) punished to death two acts:
The willful killing of one of the citizens responsible for the implementation of the said law
The willful killing of an officer in the implementation of the law
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