On World Day Against the Death Penalty, Death Penalty is Not a Solution, Only an Illusion of Deterrence to Avoid Liability

October 10, 2020

10 October 2020

Position Paper

Introduction

On World Day Against Death Penalty, marked on 10 October of every year, the Palestinian Center for Human Rights (PCHR) reiterates its position against the death penalty and emphasizes its ongoing efforts, which started since its establishment, to abolish this inhuman punishment. The occasion comes this year while 134 countries have abolished death penalty in law or in practice.[1] Nonetheless, five countries have exhibited loose use of this penalty where most executions occurred.[2] Meanwhile, the Palestinian Law still allows the application of the death penalty in 3 applicable laws:

1979 Revolutionary Penal Code, which mandates death penalty for 45 crimes; most of them are political crimes stipulated in loosely formulated articles that allow overcriminalization. This law is supposed to be applicable only to militants within their military acts; however, it is de-facto applied to civilians. Moreover, PCHR believes this law is unconstitutional as it was issued by the Palestine Liberation Organization (PLO) that is not a body of legislative power and was even established before the Palestinian Authority (PA.)
1936 Penal Code, issued by the British Mandate and applicable in the Gaza Strip, stipulates death penalty for 15 crimes; mainly political to prevent Palestinians from resisting the British Occupation at the time.
1960 Penal Code, which is the old version of the Jordanian penal code and has become applicable in the West Bank following the Jordanian Rule; it mandates death penalty for 15 crimes; most of them were political such as conspiracy for a coup d’état.

This paper reiterates PCHR’s position against the death penalty in light of ongoing calls for issuing and applying this punishment. This paper also reviews facts and merits for this opposing position in 3 main parts: PCHR’s position on the calls for carrying out death sentences; Palestine’s international obligation relevant to death penalty; and PCHR’s legal and objective

references for its position against death penalty. The paper ends with recommendations to the decision-makers, international community and civil society.

PCHR’s position on the calls for carrying out death sentences

Despite growing global trend towards the abolishment of the death penalty, there are still voices calling from time to time, particularly in the Gaza Strip, for excessive use and application of this punishment. These voices are trying to attribute the reasons of murders, security chaos, and proliferation of weapons to absence of decisive and rapid application of death penalty, promoting it as a solution to all security challenges facing Palestinian citizens.

PCHR has also followed up with concern the recent statements made by some officials in the Gaza Strip calling for execution of death sentences without the ratification of the Palestinian President. PCHR denounces the attempts to arbitrarily link security chaos and proliferation of weapons on the one hand and the non-application of the death penalty on the other hand. The latest statement was by Chancellor Mohammed al-Ghoul, Head of the Legal Committee in the Palestinian Legislative Council (PLC), when he said that “Palestinian President Mahmoud Abbas refuses to ratify death sentences, so it is expected in the upcoming stage that death sentences will be carried out against persons convicted of murder.” Another statement was made on 3 Octobers by the spokesperson of the Palestinian Judiciary in Gaza, Ihab ‘Arafat, saying that “ there are 10 death sentences ready to be applied.”

It should be noted that Since the establishment of the PA, 41 death sentences were executed, 39 in the Gaza Strip and 2 in the West Bank. Among the sentences applied in the Gaza Strip, 28 were executed since 2007 without the ratification of the Palestinian President and in violation of law. Thus, PCHR takes these statements seriously and is concerned that it paves the way for execution of new death sentences in the Gaza Strip without the ratification of the Palestinian President, noting that the last death sentences executed in the Gaza Strip was in 2017 when 6 death sentences were carried out in May and June.

PCHR position
PCHR confirmed that the death penalty is not the solution, and that its use by the authorities is merely an attempt to avoid their real responsibilities to address the phenomena of chaos and crime where it is evident that deterrence represents a small percentage of the solution when compared to other aspects. PCHR stresses that most of the Criminology and Punishment studies confirmed that the death penalty does not have a particular deterrence, and that deterrence is not the only mean to preserve security and peace in society.[3] PCHR also confirmed that crimes have economic, social and cultural causes that need radical solution, starting from correctly identifying the problem and working on treating it scientifically, instead of avoiding the facts and jumping to conclusions and denying the scientific basis. PCHR confirms that any death sentence should not be executed without the Palestinian President’s ratification and the application of any death sentence without said presidential ratification is considered an extra-judicial execution and those executing or issuing the sentence should be held accountable. PCHR also commends Palestinian President’s position not to ratify any death sentence since 2005; the Centre stresses that a complete moratorium should be applied on ratification of death sentences, as a prelude to its abolishment through the Palestinian legislature. PCHR warns against the political use of the death penalty, as a means to deepen the political division, through the implementation of death sentences without the Palestinian President’s approval, and the insistence on using this punishment despite its suspension in the West Bank since 2015, and the suspension of its implementation since 2005.

II. Palestine’s international commitments regarding the death penalty

Palestine’s commitments under the death penalty have developed gradually. It started with its accession to the International Covenant on Civil and Political Rights of 1966 in April 2014, which imposed strict conditions for using the death penalty. On June 2018, Palestine acceded the International Covenant on Civil and Political Rights’ Second Optional Protocol, aiming at the abolition of the death penalty. Since then, Palestine was obliged to abolish the death penalty from its legislation.

Article (6) of the International Covenant on Civil and Political Rights, imposed (8) conditions for implementing death penalty, which are:

The country must be one of the countries which is not abolished the death penalty.
Only the most serious crimes should be judged.
To be implemented according to the legislation at the time of committing the crime.
The death penalty laws must not contradict with the Covenant.
The death penalty shall not be executed, but only after exhausting all appeal methods and adherence to all relevant procedures.
The accused has the right to seek pardon or commutation of punishment.
Not apply on those under the age of 18.
Not using previous sentences to justify failure to abolish this penalty.

ICESCR’S Second Optional Protocol, Article (1) provides that: “1. No one within the jurisdiction of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.” The Protocol allowed States to include a reservation allowing it to apply the death penalty on 3 conditions: to be a

military crime; to be committed in wartime; and to be a serious crime, but Palestine did put forward any reservations upon signing the Protocol. Therefore, the death penalty may not be applied in Palestine, regardless of the crime or the justification.

Despite Palestine’s accession to the abovementioned protocol, during 2020, 15 death sentences were issued (10 new sentences, and 5 upholding previous sentences). It should be noted that since Palestine acceded the protocol, 19 death sentences where issued, all of them were in the Gaza Strip (13 new sentences, 5 upholding previous verdicts, and 1 sentence after retrial). Out of the 19 death sentences issued in Gaza, 6 were issued by military courts, including two upholding two previous sentences.

The total number of death sentences issued in the Palestinian Authority (PA) controlled areas has risen to 229 since 1994; 30 in the West Bank and 198 in the Gaza Strip. Among those issued in the Gaza Strip, 141 sentences were issued since 2007.

PCHR Position
PCHR reiterates its absolute rejection of the death penalty and condemns its use in the Gaza Strip despite Palestine’s accession to the Second Protocol. PCHR also stresses that Palestine must respect its international duties and abolish the death penalty immediately from Palestinian legislations and replace it with other penalties that aim at rehabilitating criminals, achieve deterrence and maintain human dignity simultaneously. PCHR also stresses the need for the judiciary in Gaza to adopt a science-based approach if it truly wishes to address the crime phenomena effectively, instead of jumping into conclusions without examination of the causes in order to address them. PCHR emphasizes that the application of the death penalty is, fore and foremost, a waste of the justice system’s humanity before being an attack on the human dignity of the person it is executed upon.

II. PCHR’s legal and objective references for its position in opposition to the death penalty

PCHR bases its refusal of the death penalty on objective and legal arguments. Aside from being an inhuman penalty that contradicts with the notion of reform and rehabilitation upon which modern punitive thought is built, the Gaza Strip lacks the necessary capabilities to rule with such a serious punishment as it lacks proficiencies of forensic evidence necessary to prove crimes, and the guarantees of a fair trial before the judicial authorities are absent. Hereinafter, an overview of PCHR’s position: PCHR’s position of the death penalty in general; and PCHR’s position of the death penalty in Palestinian Authority territories in particular.

PCHR has documented several cases where the death penalty was used in an abusive manner in speedy and cut-short trials, the latest of which was on 08 October 2020, where a death sentence was issued by the Court of First Instance in Khan Yunis on the first trial session, only two weeks after the crime he was charged for. This was not the first case of its kind, in 2017 3 persons were previously sentenced with the death penalty by the military court, and the verdict was executed within one week. These sentences were also executed without the ratification of the Palestinian President, despite that this practice is clearly banned in the Palestinian Basic Law.[4] These practices are usually attributed to political response to popular pressure, and because of the executive branch’s ability to easily influence the decisions of the judiciary; which further proves the incompetence of the Palestinian judiciary in Gaza to use such irreversible penalty.

PCHR Position
PCHR’s rejection of the death penalty is based on humanitarian and moral justifications. Following are the points upon which PCHR bases its position:Death penalty is inhuman, and it is murder that cannot be justified in the name of justice.PCHR considers that death penalty is a form of torture that humiliates human dignity; therefore, it must be abandoned.Death penalty is irreversible, therefore, if the convicted person is later deemed innocent, reparation is impossible. Judicial history around the world reveals many cases in which some of the convicts were found innocent after their execution. Death penalty did not create deterrence, rather, studies relevant to implementation of death penalty in the U.S.A have shown that the states that apply the death penalty have no lower crime rate than other states that do not apply the death penalty.Rule of law and its enforcement is the true deterrent to crime, not the death penalty.Death penalty undermines the human dignity, the protection of which was the essence for the establishment of the rights system, and it is considered the most dangerous form of cruel and inhuman treatment. PCHR conflicts with using death penalty in the PA controlled area for the lack of sufficient guarantees for the application of this grave and irreversible punishment. Following are the most important points for PCHR’s position: Lack of capabilities and the necessary competencies in the PA to conduct an accurate investigation into crimes, and the lack of impartiality of the forensic medical authority and lack of capacities in the criminal laboratory that was destroyed in the 2008 Israeli offensive. All of these make it rather impossible to produce accurate investigation results that are essential for reaching conviction based on certainty. The philosophy of criminal justice requires that convictions be based on certainty, not suspicion. It should be noted that confession or flagrante delicto are not enough for conviction based on certainty. Judicial history around the world confirms that many of those who confessed of committing crimes or caught in flagrante delicto were later proven to be innocent.The serious effects of the Palestinian division on the judiciary, particularly with regard to the unity and constitutionality of the judiciary, impose the need to issue a moratorium on the use of an irreversible punishment such as the death penalty.Fear of using this punishment for political motives, especially in light of the Palestinian political division that may lead to the absence of tranquility and safety in society, which are the two main objectives for the existence of judicial justice.Legislations applied in the PA controlled areas are not suitable to be a punitive reference in Palestine, especially when speaking about a serious punishment such as the death penalty. One of the laws applied in PA controlled areas which approves the use of the death penalty dates back to the British mandate-era, i.e. the Penal Code 74 of 1936 applied in Gaza, which is considered an immoral law established at that time to deter any attempt to claim Palestinian rights. This was evident and echoed in legal texts that criminalized any acts against the government. As to the 1974 Revolutionary Penal Code, it is unconstitutional; it was issued by an unauthorized body in the PA as many of its provisions violate the simplest rules of justice, in addition to the 1960 Revolutionary Penal Code implemented in the West Bank, in which most of the death provisions came to deter the movements of the political opposition.

Recommendations

PCHR commends the Palestinian President for not ratifying death sentences, and the judiciary system in the West Bank for not refrain from its use since 2015, and calls for immediately issuing a law by decree that prohibits using death penalty in the oPt;
Calls upon the Gaza Strip authorities to stop using death penalty or threatening to implement it without the ratification of the Palestinian President, as carrying out death sentences without the president’s approval is a crime that deserves punishment and is not subjected to statute of limitations;

PCHR calls upon the international community to exert effort to urge the PA to issue a law that abolishes the death penalty; and
PCHR calls upon the Palestinian civil society organizations to intensify the work to oblige the PA to abolish this punishment.

[1] World Coalition Against The Death Penalty, 18th World Day Against the Death Penalty: Access to counsel – A matter of life or death, http://www.worldcoalition.org/worldday.html

[2] World Coalition Against The Death Penalty, 18th World Day Against the Death Penalty: Access to counsel – A matter of life or death, http://www.worldcoalition.org/worldday.html

[3] National Research Council 2012. Deterrence and the Death Penalty. Washington, DC: The National Academies Press. https://doi.org/10.17226/13363; Amnesty International, THE DEATH PENALTY AND DETERRENCE, published in 18 May 2017 <https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/the-death-penalty-and-deterrence/>

[4] Palestinian Basic Law of Article 109