January 29
ISRAEL:
Knesset Considers Changing Law to Apply Death Penalty to Convicted Terrorists
Israel has confronted terrorist attacks for many decades, but in all of those
years, the Knesset and the public have not seriously considered whether the
justice system should sentence convicted terrorists to death. Instead, despite
allowing punishment by death for a narrow range of crimes that might plausibly
be applied to terrorism offenses, Israel has continued to apply a de facto
moratorium on the death penalty.
A recent Knesset bill that would introduce the death sentence for
terror-related murder in Israel has broken the decades of relative silence on
the matter. With the backing of Defense Minister Avigdor Lieberman, members of
the Yisrael Beiteinu party proposed the bill and saw it through preliminary
approval in a plenary session of the Knesset. It is now pending before the
committee on constitutional and legal matters for further debate and
preparation for additional readings. The proposal has 2 elements. The 1st
amends Israel's Penal Law to stipulate that a person convicted of murder while
committing a terrorist act may receive the death penalty. The 2nd part relates
to the West Bank, which Israel has controlled since the 6-Day War and which is
ruled under a separate legal regime based on the international law of
belligerent occupation. Article 209 of the Decree on Security Instructions
(issued by the military commander of the West Bank) already allows the death
penalty for murder, or what the law calls "intentional manslaughter," provided
that the sentence receives unanimous approval from a panel of military judges.
The proposed bill orders the defense minister to direct the commander to change
the decree, so that a decision of a majority of a panel of military judges can
issue a death sentence. Furthermore, the bill proposes that the military
commander of the West Bank will have no power to mitigate a final death
sentence.
This piece will provide an overview of the current legal status and history of
the death penalty in Israel. The death penalty also presents many deep moral,
legal and criminological questions, both in its more general application and in
the specific context of punishment for acts of terror. Though these issues are
important, I will not address them here.
When Israel was established in 1948, the 1st statute that the temporary state
council enacted declared that existing law remain in force, as long as it is
not in contrast to new law (Article 11). Thus, Israel inherited the legal
system from the British Mandate of Palestine. This system included the death
sentence for a variety of crimes, including murder and security-related
offenses. In 1954, Israel abolished the death sentence in civilian cases of
murder. Between the establishment of the state of Israel and the abolition of
the death sentence for murder, courts issued a few death sentences, but the
punishments were never carried out. The 1954 amending law commuted pending
death sentences to life imprisonment. The law includes only 1 exception:
convictions of murder according to the 1950 Nazi and Nazi Collaborators
(Punishment) Law. The only person executed in Israel according to a sentence of
a regular court in almost 70 years was Adolf Eichmann, executed in 1962 after
his conviction for crimes against humanity, war crimes and other crimes he
committed during the Holocaust.
The Defence (Emergency) Regulations of 1945, which the British Mandate enacted
during the period when Jewish struggle for the establishment of an independent
state intensified, includes under Regulation 58 the death sentence for
discharging "any firearm at any person" or throwing or depositing "any bomb,
grenade or incendiary article with intention to cause death or injury to any
person or damage to any property." Furthermore, even carrying a firearm without
a permit or a membership in a group of which another member committed such
offences would be enough to sentence a perpetrator to death before a military
court. During the last years of the British Mandate, nine members of Jewish
underground movements were executed for such offenses. This provision remains
in force in Israel, though the military court established pursuant to the
regulations is no longer active under a 2000 decision by the attorney general.
The death penalty also exists in Israeli penal legislation for treason in times
of war (Articles 96-99 of the Penal Law and Article 43 of the Military Justice
Law). To this day, no one has been executed for these offenses.
The Defence Regulations remain in force in the West Bank as well, though
Palestinian terrorism defendants are usually indicted before military courts in
the West Bank for offenses under the Decree on Security Instruction.
As noted, the decree includes the death penalty as the maximum punishment for
murder, as well as three safeguards against an erroneous death sentence. First,
the death sentence may not be pronounced based solely on an admission of guilt.
The court must conduct a trial and find that the accused is guilty beyond a
reasonable doubt (Article 121). Second, a death sentence requires the unanimous
decision of a panel of three military judges holding the rank of lieutenant
colonel or higher (Article 165(a)). (As mentioned earlier, the bill currently
before the Knesset would lift this requirement and allow the imposition of a
death sentence by a majority decision.) Third, there is an automatic appeal on
a death sentence to the military court of appeals, even if the convicted party
does not seek one (Article 156).
Since 1967, no death penalties have been carried out in the West Bank, mainly
because military prosecutors, with the government's backing, have adopted a
policy to not request the death penalty. Usually, courts do not sentence
defendants to a harsher punishment than the prosecution requests. Still, in a
few cases, military trial courts rendered a death sentence, but in every
instance, execution was replaced with a life sentence on appeal.
Note that international humanitarian law does not preclude sentencing to death
protected persons in occupied territory. Article 68 of the fourth Geneva
Convention allows the death penalty for espionage, serious acts of sabotage
against military installations, or intentional offenses that cause death. Three
other conditions apply: The offense must have been punishable with death under
the law of the territory before the occupation; the court must be made aware
that the defendant is not a national of the occupying power and therefore not
bound by a duty of allegiance to it; and the sentenced person must have been at
least eighteen years of age at the time of the offence.
In securing the right to life, international human rights law, allows courts to
impose a death sentence "only for the most serious crimes" (Article 6(2) of the
1966 International Covenant on Civil and Political Rights [ICCPR]). Additional
limitations on capital punishment in the ICCPR include that it may not be
carried out on pregnant women and may not be imposed for crimes committed by
persons below 18 years of age (Article 6(5)), echoing the 4th Geneva
Convention. The U.N. Human Rights Committee, the expert body entrusted with
monitoring the implementation of the ICCPR, has clearly indicated that once
abolished, the death sentence cannot be reintroduced, nor can new capital
offenses that did not exist at the time of the ICCPR's ratification be added
(Draft of General Comment No. 36 on Article 6 of the International Covenant on
Civil and Political Rights). According to this position, the proposition in the
bill to reintroduce the death penalty in Israeli penal law for murder, though
only in terror-related cases, may be considered a violation of the ICCPR.
The proposed language in the bill designed to prevent the ability to mitigate a
death sentence is directly contrary to the ICCPR (Article 6(4)). Lastly, the
proposition in the bill to allow imposition of the death sentence by a majority
of the judges instead of the requirement for a unanimous decision, may be
contrary to the position of the Human Rights Committee that states parties may
not remove legal conditions from an existing offence with the result of
permitting the imposition of the death penalty in circumstances in which it was
not possible to impose it before. This is the case if this position applies not
only to substantive legal conditions but also to procedural guarantees.
A change in established policy against the death sentence will have to overcome
another legal hurdle: Israeli constitutional law. Specifically, Basic Law:
Human Dignity and Liberty declares in Articles 2 and 4 that all persons are
entitled to protection of their right to life. It allows a restriction of
rights that may only be superseded by a law befitting the values of the state
of Israel, enacted for a proper purpose, and to an extent no greater than is
required (Article 8). It is quite possible that the Israeli Supreme Court would
accept a petition against a law promoting the death penalty and declare such a
law unconstitutional.
Finally, a change in government policy towards the imposition of the death
penalty may raise tensions between prosecutors, both military and civilian, and
politicians. The attorney general, heading the state prosecution and the
military advocate general heading the military prosecution must make their law
enforcement decisions independently. They are not subject in this capacity to
the directions or policy of the justice minister, the defense minister, or the
government, and in case of disagreement between the attorney general and the
government, the final call belongs to the former.
Whether the Knesset changes the law to expand the possibility to use of the
death penalty in terrorism cases or the government decides to adopt a policy to
encourage imposition of the death sentence when possible under existing law,
the attorney general and military advocate general should consider the policy
change. However, they would remain free to decide not to request the death
penalty. Such a decision will not be surprising considering the reports about
the attorney general's objection to the bill, as well as the objection raised
by the head of Israel Security Agency to the bill. Interestingly enough, the
head of the agency, in an appearance last month before a Knesset Committee,
opined that the death penalty will encourage new terrorist kidnapping attacks
and is not an effective counterterrorism measure.
Against the backdrop of the professional position of both the legal and the
security establishment, a survey by the Israel Democracy Institute in July 2017
found that 70 % of the Jewish public supports the death penalty for
Palestinians found guilty of murdering Israeli civilians for nationalist
reasons. Though probably affected by severe terrorist attacks just before the
survey, it seems the government will have to navigate carefully between public
sentiment and rational decision making, between short term and long term
considerations. It is hard to predict the outcome.
(source: Liron Libman, lawfareblog.com)
EQUATORIAL GUINEA:
Equatorial Guinea denies human rights violation claims
Equatorial Guinea authorities have denied human rights violations and having
political prisoners as suggested by the Portuguese parliament, DW Radio
reported.
In a statement, the Equatorial Guinea embassy in Lisbon, expressed its surprise
at the move.
"The Portuguese MPs, with some exceptions, allow themselves to be manipulated
by appearance and see human rights violations in responses to criminal acts,"
DW Radio quoted the statement as saying.
"There are no political prisoners in Equatorial Guinea," it stated.
Holding protests
The Portuguese parliament on Friday approved a condemnation vote on the
"Equatorial Guinea limitations of political liberties and human rights
violations".
According to the Portuguese parliament, President Teodoro Obiang' Nguema's
regime had jailed 135 opposition activists for holding protests during the
November 12 vote.
The ruling Equatorial Guinea Democratic Party (PDGE) won the legislative and
municipal polls.
PDGE, in power for 40 years and its allies, secured all the 75 senate seats and
99 of the 100 positions in the Chamber of Deputies, the Lower House of
parliament.
PDGE has dominated parliament of the tiny oil-rich country since single-party
rule was scrapped in 1991.
Death penalty
President Nguema is Africa's longest-serving leader, who has ruled the former
Spanish colony for 38 years and been repeatedly accused of abuses by human
rights groups.
Equatorial Guinea, though originally a Spanish-speaking country, applied to
join the Portuguese-speaking lusophone bloc in 2006 and was admitted.
The country on the west coast of Africa, has a population of 740,000 people
occupying a mainland territory called Rio Muni and 5 small islands, including
Bioko, where the capital Malabo is located.
In 2015, before the country formalised joining the Portuguese-speaking bloc,
Amnesty International said the Equatorial Guinea authorities had killed 9
opposition members.
In 2016, the country's government said it had abolished the death penalty.
Earlier this month, the Equatorial Guinea government said it had thwarted "a
coup" in late December mounted by mercenaries who sought to attack President
Nguema.
In a statement read on public radio, Security minister Nicolas Obama Nchama
said: "Mercenaries ... were recruited by Equatorial Guinean militants from
certain radical opposition parties with the support of certain powers."
(source: today.ng)
MALAYSIA:
Malaysia couple spared death for starving Cambodian maid
A Malaysian couple who were on death row for starving their Cambodian maid to
death saw their sentences reduced to 10 years in prison last week, according to
Malaysian rights organisations.
Chin Chui Ling and her husband, Soh Chew Tong, were initially convicted of
homicide in 2013, but the appeal court handed them the death sentence for
murder in 2015. On Thursday the Federal Court of Malaysia again reduced the
charge to homicide.
Cambodian maid Mey Sichan went to Malaysia in 2011, and was found dead in 2012
weighing just 26.1 kilograms with marks of physical abuse.
Glorene Das, executive director of Malaysian human rights organisation
Tenaganita, told reporters that, while her organisation did not support the
death penalty, the 10-year sentence was unacceptable.
"There needs to be a stronger sentence for ending a human life," she said.
Glorene added that memorandums of understanding to send workers to Malaysia
weren't sufficient protection as they did not hold perpetrators accountable.
Sally Alexander, also from Tenaganita, said in a message that she had visited
the Cambodian Embassy a few weeks ago and found it had only a small room for
temporary shelter for victims, and suggested it increase its capacity.
Cambodian Labour Minister Ith Samheng announced last week that the Kingdom
would start sending maids to Malaysia again in June after a 2011 ban prompted
by widespread abuses.
Naly Pilorge, of Cambodian human rights organisation Licadho, said that she was
"confused and sickened" to hear about the reduction of the sentence given "the
long suffering and terrible circumstances of the death of Mey Sichan".
(source: The Phnom Penh Post)
PAKISTAN:
Public hanging?
Ever since Zainab's killer has been caught by the police, many people are
asking for the public hanging of the culprit. There is no denying the fact that
criminals involved in a heinous crime like the sexual exploitation of children
should be given an exemplary punishment - one whose effects resonate for the
years to come. However the demand for public hanging is superfluous and, if
carried out, will hardly prevent the crime in the future. There is no data
which can demonstrate a connection between the death penalty and the reduction
in rape crimes. These violent punishments will definitely not prevent such
crimes in the future. Demands for public hanging would not have posed serious
threats, had the calls for public execution not led to a resolution in the
Senate. When such violent ideas become a part of the national thinking, it
becomes a rule and results in serious consequences.
What happened to Zainab was tragic and requires our special attention. However
a public hanging will not make our country a safer place for our children. We
need to have an open debate and try to find out fool proof measures to counter
this crime. Unless we see the bigger picture and identify the real driving
force behind such crimes, the situation will likely to remain the same.
Kashif Hakro
Karachi
(source: Letter to the Editor, The News)
FRANCE:
France would intervene if French jihadist faced death penalty in Iraq or Syria
- minister
France would intervene if a French jihadist were condemned to death in Iraq or
Syria, the country's justice minister Nicole Belloubet said on Sunday.
The possibility of such an event has arisen after an Iraqi court this month
sentenced to death a German woman of Moroccan origin for membership of Islamic
State.
The European Union has a long-standing policy against capital punishment and
all member nations have abandoned the practice.
Asked in a television interview on Sunday about how France would react if a
French jihadist were condemned to death, Belloubet said: "The French state
would intervene, by negotiating with the other state in question."
Any such negotiations could involve requests for extradition, though Belloubet
emphasised that these situations would be considered case by case.
French public prosecutor Francois Molins said this month that an estimated 676
French nationals, including 295 women, were in the Iraq-Syria region.
France remains on high alert after suffering a wave of attacks commissioned or
inspired by Islamic State militants in 2015 and 2016, which killed more than
200 people.
(source: Reuters)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
