By Professor Kamel FI L AL I
Vice Chairman of the United Nations CRC.
On the 24th of January 2008, the Arab Charter of human rights entered into force in conformity with its article 49(b) which provides that:” the present Charter shall enter into effect two months after the date on which the seventh instrument of ratification is deposited with the secretariat of the League of Arab States”. Algeria ,Bahrein , Jordan Occupied Palestinian Territories ,Syrian Arab Republic , United Arab Emirates are the seven ratifying States.
On 30 January 2008 The United Nations High Commissioner of Human Rights issued a Statement in which reference was made to the incompatibility of some of the provisions of the Arab Charter (there after the Charter ) with international norms and standards .These concerns included among others the approach of death penalty for children.
In the following an attempt will be made in order to understand the issue of death penalty in the Arab States, the specific legal and cultural difficulties which slow the path of harmonisation. In a second part of this statement the author of this note will concentrate on Children’s rights, their protection and the death penalty according to international standards.
I- New trends towards death penalty in the Arab world.
Today, it can be said that few Arab States have abandoned the death penalty opting for a system of sanctions taken from the western world. It is nevertheless true that some others continue to practice and enforce the death penalty as part of Islamic law in serious cases such as adultery, theft, homicide, apostasy, witch crafting etc…
The death penalty is a sanction which still appears in legislations of Arab States in general and is part of their penal system of sanctions. This constitutes the main obstacle to change and explains why very few have ratified or acceded to the second Protocol to the International Covenant on civil and political rights dealing with the abolition of the death penalty.
Attempts have been made in Jordan for example towards a limited enforcement of the death penalty by reducing the number of crimes for which it would apply, a draft for that purpose has been established but met with swift resistance from people, intellectuals and members of the Jordanian Bar Association .The denunciation of such Project was made on the base that the western influence was presiding the action which in turn was declared unacceptable .They added that the death penalty in its very nature belongs to sharia law and as such should remain in the corpus of sanctions as provided for in Islamic law ,the latter being unchangeable.
Sudan is another case which illustrates the difficulties met by Arab States to introduce amendments to the death penalty in their penal law, since this State suspended all executions of these sentences in 1985 , but resumed this old practice after the political changes that occurred in the county. A new criminal law was enacted in 1991.
Algeria seems to be joining the path of abolitionist since it considers today that there is a “de facto abolition” of the death penalty and although some judicial decisions emanating from criminal court continue to apply article 50 of the penal code providing for the death penalty. It has nevertheless suspended all executions since 1993. In 2004 the Algerian Minister of justice declared that the death penalty should be abolished. Algeria progresses in this matter are important since it already abolished the death penalty for economic crimes.
It can be said also that the difficulties met by Arab States are pertaining to the mere existence of intangible rules in some constitutions which impose the application of sharia law or in some other cases the Constitutions provide that Islam is the religion of the State , thus placing the sharia law among the main source of law and consequently imposing a hierarchy of norms and an obligation to enact legislations within the context and principles taken from sharia law.
It can be said that the existing trend generates serious preoccupations since death penalty and executions for example of adults remain a real fact and in a regrettable high number.
II- Children and the death penalty.
Article 7 of the Arab Charter stipulates that:
(a) Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime.
(b) The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration.
Article 7 of the Charter seems to suggest that the general rule is that a child as defined in article 1 of the Convention on the rights of the child, (…every human being below the age of eighteen years) cannot be sentenced to the death. Then article 7 operates by a transfer of the matter related to the death penalty to the discretion of the State who can impose it or not according to its national legislation.
Moreover, the second part of article 7 (a) which stipulates:“….In force of the time of the commission of the crime” seems to be rejecting the full protection given to the child by the United nations Convention . According to this international instrument, it is prohibited to render a sentence using the death penalty on a person under eighteen at the time of the crime, suspend execution and enforce it once the person reaches majority. The Committee on the rights of the child (there after the Committee) has always recommended that a person should not be executed for a crime committed when she was under eighteen years old , for example in one of its Concluding observations it observed that : “”The Committee remains concerned that national legislation appears to allow children between the age of 16 and 18 to be sentenced to death with a two years suspension of execution .It is the opinion of the Committee that the imposition of suspended death on children constitute cruel, inhuman and degrading treatment or punishment .It is the Committee view that the aforementioned provisions of national law are incompatible with the principles and provisions of the Convention ,notably those of its article 37(a)
(CRC/C/15/Add.56para.21) .This directly implies that there is a tangible risk and a possibility that children can face such a grave measure if national laws provide for such sanction. The fact that this penalty can only be pronounced for some serious and grave crimes doesn’t reduce the concern. It is important to stress here on the fact that article 7 is not compatible with the principles put forward by article 37(a) of the Convention. This provision (art.37) prohibits the death penalty for persons below eighteen .The Committee reiterates this in its general comment n°10 on children’s rights in Juvenile justice (CRC/C/GC/10). It is also noted under article 6 of the Covenant on civil and political rights which states that : “sentence of death shall not be imposed for crimes committed by persons under eighteen years of age and shall not be carried on pregnant women” .
The Committee has raised the issue with a number of States party for example: “The Committee takes note of the information that no child is sentenced to death and that capital punishment is not passed to persons who commit a crime before they reach the year of majority (in general 18 years ). Nevertheless it deeply concerned that judges have the discretionary power which is often exercised when presiding over criminal cases involving children to decide that a child has reached majority at an earlier age and as a consequence capital punishment is imposed for offence by persons before they have reached the age of eighteen .The Committee is deeply alarmed that this is a serious violation of the fundamental right under article 37 of the convention” (CRC/C/SAU/CO/para32and33).
Experts from United Nations treaty bodies have expressed their worries as regard to the harmony of the Charter with international norms and standards while contributing to the preparatory work in Cairo ; the wording of article 7 suggest that for the drafters of the Charter “ Specificities “have prevailed over” universalism”.
It is also important to remind that even if in the practice the execution of children do occur in rare cases the concern will continue to be there until the full withdrawal of the controversial legislation from positive law at both level national and international. Again the wording of article 7 of the Charter suggest a situation of no harmony with international conventions related to human rights and it is very legitimate to consider it as a departure from the clear prohibition of the death penalty referred to in Article 37 (a) of the Convention which provides that “…neither capital punishment nor life imprisonment without a possibility of release shall be imposed for offences committed by persons below eighteen years old”.
The interpretation of article 7 should be read in light with article 43 of the same Charter which read: Nothing in this Charter may be construed or interpreted as impairing the rights and freedoms protected by the domestic laws of the States parties or those set forth in the international and regional human rights instruments which the States parties have adopted or ratified, including the rights of women, the rights of the child and the rights of persons belonging to minorities.
The protected rights to which article 43 of the Charter refers are those which are common to the Charter and the Convention and were there are no conflict. The death penalty is a matter were views are not convergent and the understanding is today at least in some Arab States to suspend execution but to keep it in the legislation or even declaring before the Treaty bodies that a national debate has been engaged with all actors of society and that the States are about producing a draft bill prohibiting the death penalty on persons less than eighteen years of age. The Committee on the rights of the child raised the issue with a number of States parties and emphasized that it is not enough that the death penalty is not applied to children. Its prohibition regarding children must be confirmed in legislation. Finally it can be said that article 43 of the Charter does not address the subject of the death penalty.
All the Arab States have ratified the Convention on the rights of the Child with no reservations to article 37 and most of then have ratified the Covenant on civil and political rights. The ratification creates obligation for them not to sentence or enforce the death penalty on children in their territory. If conflict arises between the Charter and the Convention the latter should prevail according to article 30 of the Vienna Convention on the law of treaties of 1969.