World Day against Death Penalty,

The Palestinian Center for Human Rights (PCHR)

“On the World Day against Death Penalty, we stress that our struggle will continue on all levels to abolish this penalty… We believe, as everybody else do, the purpose of this punishment is reform and deterrence. However, death penalty does not achieve both sides of this purpose. This was proven with facts and researches made by the countries that apply this penalty the most… Justice is meant to bring safety and serenity not revenge”.

Lawyer Raji Sourani*

Introduction

Death penalty is considered one of the most controversial issues in the Palestinian community for its social, religious and security dimensions in the Palestinian community particularly and Arab countries generally. PCHR has had an obvious position against death penalty since the very first day it was established although PCHR has realized such a position will not be reasonable for a big sector of the community that has been affected by different misinterpretations of the religious text concerning this penalty or the common concept of deterrence gained by this penalty, which has not been proved by facts nor researches. PCHR has worked throughout over 20 years against death penalty, created a social controversy against it and dedicated a big part of its efforts towards stopping this penalty paving the way for its abolishment. PCHR’s position is based on legal, reasonable and moral justifications explained in this paper below.

The split of the Palestinian Authority (PA) in 2007 frustrated the efforts aiming at the abolishment of death penalty. It should be noted that PCHR has practiced huge efforts upholding a penal code without death penalty. PCHR went far on this track through meetings with decision makers, making correspondences, awareness-raising campaigns and debates until a draft of the Palestinian Penal Code was issued excluding death penalty. Nonetheless, the split happened and not only obstructed all these efforts, but increased the application of this penalty also. There has a been a significant rise of this penalty following the Palestinian split, mainly in the Gaza Strip.

Death penalty in the PA is regulated by 3 penal codes. One of them is military and was issued by the Palestinian Liberation Organization (PLO) while the 2 others were civil; one of them is applicable in the West Bank and the other is applicable in the Gaza Strip. These laws are flawed for the over-imposition of death penalty concerning many crimes, some of which are political such as “conspiracy to overthrow the government”. Military courts apply this penalty the most and practice their jurisdiction even on civilians in some cases, especially concerning collaboration with the Israeli occupation. Bringing civilians before military courts is a grave violation of human rights and the Palestinian Basic Law (PBL) that stressed each person’s right to be presented before his/her natural judge.

PCHR has always highlighted its bias for the victims of death penalty. However, PCHR stressed that its position does not mean to be lenient with criminals or abandon the requirements of security. All of this does not distort PCHR’s message of justice and righteousness that demands commitment to the justice requirements. Justice requires that attributing a crime to its doer should be done without any logical doubts and any slight doubt found should be in favor of the accused person. Moreover, the punishment must be commensurate with the crime and must not be degrading or severe, taking in consideration the punishment is imposed for reform not revenge. This interpretation of justice is supported with studies and researches on which PCHR’s position is based, especially concerning the relation between death penalty and security.

PCHR underscores that its vision regarding death penalty relies on legal, impartial and moral justifications that do not in any form contradict with the Islamic Shari’a goals, which glorify life and human dignity. PCHR believes that the insistence on the application of this punishment, which is irreversible, although the conditions and requirements for applying it are not available may put lives of innocents at stake and jeopardize the community’s serenity and security that are the main aims of justice. Therefore, PCHR emphasizes on the World Day against Death Penalty, 10 October, that efforts will go on to abolish this inhumane penalty, taking in consideration the public interest and justice requirements that reject the killing of an innocent person.

This paper briefly displays facts about death penalty in Palestine and PCHR’s position towards it in eight items. Moreover, it includes recommendations for decision makers. The eight items are as follows:

1. Using death penalty before Palestinian courts.
2. Application of death sentences in Palestine.
3. Laws regulating death penalty in Palestine.
4. Number of crimes requiring the application of death penalty in the Palestinian law.
5. International obligations on the PA concerning death penalty.
6. Conditions required for the application of death penalty in Palestinian legislations.
7. To what extent Palestinian legislations related to death penalty fit the international standards.
8. PCHR’s position.

 First: Using Death Penalty by Palestinian Courts

Death penalty is defined as putting a person to death by a sentence issued by a competent court in due process. The Palestinian laws stipulate death penalty before Palestinian courts, whereas 10-15 death sentences are issued annually. The majority of these sentences are issued in the Gaza Strip on grounds of collaboration with Israeli forces. Following are statistics relevant to using death penalty before Palestinian courts:

1. Facts on death sentences issued in 2016

• Death sentences that has been issued in 2016 so far are 16. All of them were issued in the Gaza Strip. Four of the sentences were issued by high courts upholding previous sentences.
• In 2016, 12 death sentences have been issued by military courts so far.
• In 2016 also, 4 death sentences have been issued by civil courts so far.

2. Facts on death sentences issued since the establishment of the PA in 1994 until now:

• Death sentences issued by different courts (civil and military) are 180.
• Number of death sentences issued in the Gaza Strip: 150.
• Number of death sentence issued in the West Bank: 30.
• Number of death sentences issued in the Gaza Strip following the Palestinian spit in 2007: 91.
• Number of death sentences issued by military courts since the split in Gaza: 67.

Second: Application of Death Sentences in Palestine

The number of death sentences applied in the PA so far are 35. Eighty-seven convicted persons are waiting in the Palestinian prisons for the application of death sentences. Following are facts relevant to the application of death penalty in the PA:

The Gaza Strip:

• The majority of death sentences in the Gaza Strip were applied following the internal split. All of them were applied without the ratification of the Palestinian President, as the previous government’s Council of Ministers in Gaza approved all the sentences in a clear violation of the law, especially the 2003 PBL. There are 3 sentences that were applied following the formation of the unity government in 2014.
• Number of sentences applied upon the ratification of the President: 11.
• Number of sentences applied without the ratification of the Palestinian President in violation of the law, mainly article 109 of the PBL, and all of them were in the Gaza Strip: 22. Three of them were applied after the unity government was formed.

The West Bank:

No death sentences have been applied in the West Bank since 2002 and the Palestinian President has not ratified any death sentence since 2005. In the West Bank, 2 death sentences have been applied since the establishment of the PA.

Third: Laws Regulating Death Penalty in Palestine

Six laws regulate death penalty in the PA; 3 of which are penal codes that identify criminalized acts and punishments imposed on them. The 3 other laws are procedural, as they include certain texts relevant to the issuance or application of death sentences. Some of these laws are applicable in the Gaza Strip only while the others are applicable in the West Bank only. However, there are laws applied in both areas. Following are these laws and in what areas they are applicable:

• Penal Code no. 74 issued by the British Mandate authorities for 1936. (Applicable in the Gaza Strip)
• Penal Code no. 16/1960. (Applicable in the West Bank)
• 1979 Revolutionary Penal Code. (It was issued by the PLO and is applicable in the West Bank and Gaza Strip)
• 2001 Penal Procedure Law. (Applicable in the West Bank and Gaza Strip)
• 1979 Revolutionary Tribunal Law. (Applicable in the West Bank and Gaza Strip).
• 2008 Military Justice Code. (Applicable in the Gaza Strip)

Fourth: Number of Crimes Requiring the Application of Death Penalty in the Palestinian law

The Palestinian penal codes identified the crimes the require the application of death penalty. These crimes were many; the majority of which were political. Following are a demonstration of a number of crimes punishable by death in the Palestinian law:

• The civil law (1939 Penal Code applicable in the Gaza Strip and Penal Code no.16/1960 applicable in the West Bank) provides that 15 crimes are punishable by death.
• The military law (1979 Revolutionary Penal Code) provides that 45 crimes are punishable by death.

Fifth: PA’s International Obligations relevant to Death Penalty:

In 2014, the State of Palestine acceded to the 1966 International Covenant on Civil and Political Rights (ICCPR) without any reservations. Thus, Palestine became bound by all the ICCPR’s terms, including Article 6 which imposed guarantees and obligations on countries to apply this penalty until it is cancelled.  Article 6 stipulates that:

“2- In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court…. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”

Despite PCHR’s persistent calls, the State of Palestine has not acceded yet to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.

Sixth: Conditions Required for the Application of Death Penalty in Palestinian Legislations

The Palestinian laws stipulate a number of procedural and impartial guarantees to issue or apply a death sentence.  These guarantees are proper and meet the conditions required by the international standards, which impose such conditions on countries that have not so far abolished death penalty. These guarantees are flawed for the absence of the rule of law in the Palestinian society and poor Penal Code.

• The death sentence should be unanimously issued by a competent court.
• The convicted person’s crime should be among the crimes punishable by death penalty according to the Palestinian Penal Code.
• The sentence should be based on certainty not doubts.
• The sentence should be issued after providing the convicted with all the guarantees of the right to defense as ensured in the law.
• The sentence should be definitive and exhausting all steps of appeal.
• The sentence requires the PA President’s ratification to be applied.
• The perpetrator should not be a pregnant woman (if the sentenced woman was proved to be pregnant, the punishment should be changed into hard labor for life according to 2001 Penal Procedure Law)
• The convicted should be 18 when committing the criminal act.
• The perpetrator should not be mentally ill.
• Death penalty should not be executed on public holidays.
• The sentenced should be allowed to see his relatives and a clergy man adopting his religion.
• Neither a public pardon (by the Palestinian Legislative Council) nor a private one (by the PA President) is issued for the convicted person.

Seventh: To What Extent Palestinian Legislations Related to Death Penalty Fit the International Standards

The legislations regulating the death penalty in the PA violate the human rights standards and rule of law as explained below:

• Penal Code no. 74/1936 applicable in the Gaza Strip stipulates death penalty for 15 crimes; most of which are political. The Code’s criminalization items are open to interpretations so that any act against the Mandate’s policies in Palestine would be liquidated. Moreover, some crimes that are punishable by death penalty do not fall within the most serious crimes.  Thus, the terms of this Code constitute a clear violation of the intentional standards.
• Penal Code no. 16/1960 applicable in the West Bank violate the international standards as it stipulates that 15 crimes are punished with death penalty; most of which are political crimes related to national security and incitement. The Code’s terms are also open to interpretations due to which they can be easily employed in the liquidation of political opponents.
• The 1979 Revolutionary Penal Code stipulates 45 crimes punishable by death; most of which are political crimes. The law does not differentiate between the times of war and peace, particularly treason crimes.  Moreover, some crimes punishable by death are not categorized within the most serious crimes such as “Offending and inciting against the revolution.”
• The 2008 Palestinian Military Justice Code regulates sentences related to the application of death penalty in Articles (91, 96, 102 and 104), emphasizing death penalty. It should be mentioned that this law was enacted by the Change and Reform Bloc, which holds its sessions on behalf of the PLC in the Gaza Strip.

Eighth: PCHR’s Position

PCHR is basically rejecting death penalty for human reasons par excellence. However, PCHR’s hard work in this field is not only motivated by this position, it is rather based on the justice requirements. As mentioned above, there are a number of constitutional and legal guarantees for the application of death penalty included in the Palestinian laws. The PA, especially in the Gaza Strip, cannot be committed to these guarantees, which violates the PA obligations according to article 6 of the ICCPR. Following is an explanation of PCHR’s position towards death penalty and the basis on which death penalty should be abolished in the PA.

PCHR’s Position against Death Penalty in General:

PCHR’s position against death penalty relies on humane and moral grounds. PCHR believes that its position does not conflict with the spirit and teachings of Islam that aims at maintaining the human life. Grounds on which PCHR’s position is based are:

• Death penalty is inhuman and considered as an unjustifiable murder in the name of justice.
• PCHR believes that death penalty is a form of degrading torture, so it must be stopped.
• Death penalty is irreversible. Thus, if the sentenced person was later found out innocent, the remedy is impossible. The judicial history reveals many cases where convicted persons were later proved innocent after applying death sentence against them.
• Death penalty has not proved any special deterrent capability. However, studies related to death penalty application in the USA proved that crime rate in some states, which use death penalty, has not decreased compared to those not using death penalty.
• The rule and enforcement of law not death penalty is a real deterrence to the crime.
• Death Penalty dishonors the human dignity for the sake of which human rights organizations were established, as it is considered the most serious form of cruel and inhuman treatment.
• Around 141 countries legally or effectively abolished death penalty. Thus, the world is moving towards the abolition of this inhuman punishment.

PCHR’s Position against Death Penalty Particularly in the PA-Controlled Areas:

PCHR opposes the use of death penalty in the PA controlled areas due to lack of adequate guarantees for the application of such serious and irreversible punishment.  PCHR’s position justifications are as follows:

• Lack of necessary potentials in the PA to conduct a thorough investigation into crimes. Moreover, the absence of an independent forensic department and lack of a forensic laboratory defeat the possibility of having accurate results, which is indispensable to reach a conviction based on certainty. Criminal justice requires that conviction is based on certainty and not doubts. It is worth noting that confession or in flagrante in itself is not sufficient for conviction based on certainty. The judicial history around the world has unveiled that many of those who confessed themselves committing crimes or were caught in flagrante were later found innocent.
• The serious impacts of the Palestinian split on the judiciary, particularly the unity of the judiciary and constitutionality of its formation, requires stopping an irreversible punishment like death.
• Concerns relevant to using this penalty on political grounds, especially in view of the internal split, which will lead to the absence of serenity and security.
• The abolishment of death penalty in Palestine does not contradict with the Palestinian people’s beliefs, as the abolishment goes in harmony with the spirit of the Islamic Shari’a, which imposed tough restrictions on its application and allowed suspending punishments during hard economic or social times. Moreover, the Shari’a confirmed that punishments must not be applied in case of any doubts. Prophet Mohammed (peace be upon him) said, “Prevent punishment in case of doubt”, and said also, “Avoid legal punishments upon the Muslims as much as you are able”. In light of the presence of the Israeli occupation in Palestine and the poor economic, social and cultural conditions left behind, the negative psychological and social impact on the Palestinian civilians and the Palestinian split and its negative impact on the judiciary, stopping the application of death penalty is not only permissible in Islam but obligatory also.
• The legislations applicable in the PA-controlled areas cannot be a penal reference in Palestine, especially when talking about a punishment that is as serious as death penalty. One of the laws applicable in the PA-controlled areas that stipulates death penalty was issued during the British Mandate; it is the Penal Code 74/1936 applied in Gaza, which is considered an immoral law because it was issued then to deter any attempts to claim the Palestinian rights. This negatively affected the provisions of the law that criminalize any act against the government. On the other hand, the 1974 Revolutionary Penal Code is unconstitutional because it was issued by a body that is ineligible in the PA. Moreover, many of its provisions violate the minimum standards of justice. A number of the 1960 Penal Code provisions applicable in the West Bank were mainly set to deter any political opposition.

 Ninth: PCHR’s Recommendation

1. PCHR calls upon the Palestinian President to sign the Second Optional Protocol to the ICCPR and to issue a Presidential decision to halt the application of this penalty until it is abolished by the PLC when convened;
2. Calls upon the PLC, when convened, to consider the Palestinian legislations and laws relevant to this punishment, mainly the Penal Code no. 74/1936 applied in the Gaza Strip and the Jordanian Penal Code no. 16/1960 applied in the West Bank, and to enact a unified penal code that goes in harmony with the international human rights conventions, including those relevant to death penalty.
3. Stresses the Palestinian President’s position to not ratify any death sentence and highlights that ratifying death sentences is an exclusive power of the President according to the constitution and relevant laws. Moreover, no death sentence can be applied without the President’s ratification.

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*Raji Sourani is the Director of the Palestinian Center for Human Rights (PCHR) and winner of the Right Livelihood Award known as Alternative Nobel Prize in 2014.