May 23
IRAQ:
Iraq Brings the Islamic State to Justice----The country’s trials have been
brutally efficient, but will the U.N. deem them fair?
In the coming weeks, the Kurdish-led Syrian Democratic Forces may hand over up
to 28,000 people suspected of belonging to the Islamic State to the Iraqi
authorities for prosecution. The suspects are likely to include thousands of
foreign fighters from at least 50 different countries. Awaiting them will be a
process that, although fairly efficient, has often ended with the death
penalty—a fact that presents a challenge to the United Nations, which has sent
an investigative team to assist the local judiciary in the investigation and
prosecution of some of these crimes.
The trials of Islamic State defendants in Iraq began well before the official
end of the group’s reign of terror in 2017. In 2015, dozens were charged,
convicted, and later executed as terrorists for their role in a 2014 massacre
of Iraqi Army cadets at Camp Speicher near Tikrit.
The following year, a series of U.N. reports concluded that the Islamic State
may have committed acts of genocide, war crimes, and crimes against humanity
against the Yazidi minority group. Demands from national and international
nongovernmental organizations for a U.N.-backed international tribunal to
prosecute suspects followed. The goal was to focus on crimes against this small
group before perhaps expanding to cover crimes committed by the Islamic State
against all groups in Iraq, including Sunnis, who were the terrorist outfit’s
most frequent victim.
But U.N. member states had little appetite for establishing an international
court, not least because of the cost and because of resistance from the Iraqis,
who were already prosecuting and convicting hundreds of Islamic State
defendants. Taking a cue from the U.N. General Assembly, which established in
2016 a quasi-prosecutorial body for international crimes committed in Syria, in
September 2017 the Security Council established an investigative team to assist
national investigations and prosecutions of Islamic State defendants in Iraq
who had perpetrated atrocity crimes.
Following months of negotiations between the U.N. and the Iraqi government, in
February 2018, the sides agreed on the parameters of the investigations. Most
notably, the international investigative team would only provide its evidence
to the national authorities if it deemed that local judicial proceedings were
fair and independent. Furthermore, though not explicitly stated in the terms of
reference, in accordance with U.N. policies, the team would not hand over
evidence in circumstances where the death penalty was on the table.
Yet these stipulations are at odds with the way Iraq has so far handled many
Islamic State cases. Since 2015, the country has prosecuted suspects through
its counterterrorism law, a short and vague statute that stipulates that, for a
conviction, the state must only prove membership or loosely defined support for
the Islamic State. It does not have to prove any other underlying crime. The
death penalty is mandatory in many of these cases. Under this system, in 2018,
the Mosul court processed 9,000 Islamic State cases. Iraq has also said that it
convicted over 500 foreigners that same year.
Despite the immediate issues raised by the parameters set for the U.N.
investigators, the Iraqi government still welcomed the team, seeing it as a way
to help re-build the capacity of members of a judicial system that, in large
swaths of the country, had been forced to flee by the Islamic State. And so, in
May 2018, the U.N. Mission in Iraq began systematically monitoring trials in
Baghdad, where most cases had been prosecuted. Between that month and February,
the team I led monitored approximately 150 trials and some investigations,
primarily in Baghdad but also in Mosul and, much later, Erbil.
International media has painted a bleak picture of the cases. A common theme is
outrage about the “10-minute trials” that determine suspects’ fate.
And to be sure, the busiest court, the Central Criminal Court in Baghdad, was
chaotic. Hearings were rushed, and sometimes the only evidence against Islamic
State defendants was a confession, often allegedly obtained through torture.
But in other courts, the process was significantly more professional. In the
court in Karkh, a Sunni neighborhood of Baghdad, greater care and attention was
given to some cases. Investigation files contained witness testimony,
documentary evidence, and forensic material. True, the trials themselves still
appeared perfunctory, but the fact-finding and investigation stage could last
months and consist of numerous sessions. The subsequent trial hearings, in
essence, summarized those facts and allowed final comments from the parties.
The trials observed in Mosul, the Islamic State’s former capital in Iraq, were
even more professional. There was greater attention given to gathering and
exploring facts and weighing the evidence. Although representatives of
international NGOs believed that the cases we witnessed may have been staged
for the U.N., this seemed unlikely. It would take an implausible degree of
coordination (including with defense witnesses) to have pulled off such a ruse.
Despite these improvements in process, the U.N. investigative team still has
profound challenges to grapple with. Iraq’s criminal laws have a vague and
uncertain standard for what degree of evidence is sufficient to convict as well
as how to address the issue of duress (many Islamic State defendants allege
they were forced to support the terror group). In the cases the U.N. team
agrees to support, it will have to be careful about how it addresses the issue
of confessions and other evidence allegedly obtained by torture. Many Iraqi
judges and lawyers argued that torture is an unfortunate but widespread
practice during interrogations in Iraq. Indeed the local law seems to suggest
that torture may not necessarily disqualify a case. This is despite the fact
Iraq is a state party to the U.N. Convention Against Torture and has made a
series of commitments to the U.N. Human Rights Council to prevent and punish
acts of torture.
Another conundrum is that to be satisfied that an investigation or trial meets
the “fairness” standard, the United Nations team will have to determine whether
the courts ensured the right to an effective defense. Certainly, in almost all
of the 150 cases we monitored, the defense was remarkably passive. It was quite
common for counsel to have neither met the defendant nor read the court file
prior to arriving in the court room. Their role at trial was generally to
assert their client’s innocence without reference to any facts, followed by a
plea for the court to show mercy. In one case, defense counsel was assigned to
4 men literally one minute before their trial. He produced a blank piece of
paper, wrote down the allegations and, in due course, asked for mercy. The
defendants were all convicted and sentenced to death.
Almost all defense lawyers we met said that they were afraid to defend their
clients because they didn’t want to be seen as Islamic State sympathizers. (A
number of defense lawyers have indeed been detained and some beaten by state
authorities.) To this end, the Security Council could consider encouraging the
Iraqi government to allow for the introduction of international defense
counsel, as in tribunals in Cambodia, Lebanon, and Sierra Leone. There would be
cost implications, particularly when it comes to security, but if feasible,
these lawyers could act as co-counsel to local Iraqi teams without having to
reconfigure the U.N. engagement in Iraq.
One quirk of the Iraqi justice system (and likely to be a major headache for
the U.N. team) is the fact that there appears to be no lawfully constituted
federal supreme court that can address constitutional questions, including
appeals from Islamic State cases on the grounds that the trial violated a
defendant’s constitutional rights. The 2005 constitution, which has robust due
process protections for defendants, required a two-thirds vote in the national
assembly for a constitutional court to be established, but the effort never
garnered that level of support. There is a court that does, occasionally, issue
opinions, but so far not on criminal appeals. So if there is no venue to remedy
trial errors amounting to constitutional violations, it goes without saying
that the Islamic State trials cannot be deemed fair under the terms of the
agreement between the UN and Iraq.
Then there is perhaps the most difficult issue facing the U.N. investigative
team: the application of the death penalty. Those suspects who fall within the
purview of the U.N. team will not be eligible for the death penalty. Everyone
else is out of luck, from the vegetable seller accused of supporting the
Islamic State because he sold them food to the mid-level Islamic State fighter
not accused of having killed anyone. This situation raises serious due process
and constitutional questions by creating a two-track system of justice that
surely the Security Council had not intended.
In short, the challenges facing the U.N. investigative team are daunting.
Some of the problems could have been addressed in the lead-up to the Security
Council debate about the team’s mandate in September 2017 and certainly before
the terms of reference were finalized, but they were not. For now, the
investigative team remains in its infancy, and the pool of Islamic State
defendants appears to be large and growing. In other words, there will be time
to get it right if there is political will do so
If not, perhaps the U.N. investigative team will limit its focus to select
cases, for example those relating to the killing of Yazidis or select massacres
that occurred in Ninewa province. It will also presumably lend support to
member state investigations of their foreign nationals detained in Iraq who
could be prosecuted in their home countries. And it will provide
capacity-building and hopefully support the idea of international defense
counsel. Looming in the background remain calls for the establishment of an
international tribunal, most recently advocated by Sweden. Though it still
seems highly improbable, it may be the only viable fix to the headaches
emerging from Iraq.
(source: David Marshall is a research fellow at the Schell Center for
International Human Rights at Yale Law School and a former team leader for the
United Nations Assistance Mission for Iraq accountability and administration of
justice section----foreignpolicy.com)
SAUDI ARABIA:
2019 geared to be the worst year for executions in Saudi Arabia this decade
Rights groups put the number of those killed by Riyadh this year at 107 with
Amnesty International calling the surge a 'bloody execution spree'.
Saudi Arabia is on course to execute more people this year than any other year
this decade, according to rights groups.
The European Saudi Organisation for Human Rights (ESOHR) says that Riyadh has
carried out 107 death sentences already in 2019, putting it on course to
surpass its decade high of 158 confirmed executions in 2015.
This year’s figure is set to rise amid reports that the country is preparing to
execute several Islamic scholars, including Salman al Odah, Awad al Qarni, and
Ali al Omari.
The numbers for this year, like years before, include opposition figures, as
well as people convicted of crimes, such as drug trafficking, murder, and armed
robbery.
Rights groups, such as Amnesty International, have repeatedly condemned Riyadh
over its use of capital punishment, and the method of executions used, which
can include beheading followed by crucifixion.
However, the number of executions has risen in the latter half of the present
decade, with figures regularly hitting 3 digits.
2019----ESOHR says 107 people have been executed in Saudi Arabia so far in 2019
with Amnesty putting the number at 104.
Most notably, 37 people - mostly from the country’s Shia minority - were
executed in one go in April. They included at least 1 person who was under the
age of 18 at the time of the alleged offense.
Abdulkareem al Hawaj was arrested over his alleged involvement in
anti-government protests at the age of just 16.
Under international law, it is illegal to execute anybody who was under the age
of 18 when an offense is alleged to have taken place.
Amnesty called the killings a “bloody execution spree”.
2018----Riyadh executed 149 people in 2018. They included Indonesian national
Tuti Tursilawati, who was convicted of killing her employer in 2011 in what she
said was self defence after experiencing sexual abuse.
The Indonesian government was not informed of her execution beforehand.
2017----In 2017, Saudi Arabia executed 146 people, according to Amnesty. Rights
groups claimed that the corpses of a Yemeni gang executed for murder and
robbery were dangled from a helicopter as a warning to other criminals.
2016----Saudi authorities executed at least 154 people in 2016, including 47
people in one day, the largest mass execution in the country since the 1980s.
Among the 47 killed was Shia Muslim scholar, Nimr al Nimr, on terrorism
offences, a charge rejected by his family.
Nimr’s nephew, Ali al Nimr, who was just 17 at the time of his arrest, is also
facing the death penalty.
2015----In 2015, Saudi Arabia executed at least 158 people, making it the
highest number of executions so far this decade.
The number was a dramatic increase on the 90 confirmed executions the country
carried out the previous year.
To keep up with the increased rate of executions, Riyadh advertised for 8 new
executioner positions in its civil service.
2014----The number of people executed in 2014 was at least 90. Among those
killed were Hajras al Qurey and his son Muhammad, who were arrested and charged
with drug trafficking in 2012 after crossing the border into Saudi Arabia from
Yemen.
Both men claimed to have been tortured during their custody and refused legal
reprentation.
2013----At least 79 people were executed in Saudi Arabia in 2013, including 5
Yemeni men who were beheaded and crucified in the city of Jizan.
2012----At least 79 were also executed by Saudi Arabia in 2012. They included a
man who sentenced to death for ‘witchcraft’.
Musa al Asiri was killed in Najran after being found with books and amulets.
2011----There were also executions for witchcraft and sorcery in 2011. A Saudi
woman and a Sudanese man were executed in separate cases.
A total of 82 executions took place that year.
2010----Riyadh executed 27 people in 2010. (source: trtworld.com)
IRAN:
Criminal Sentences of Execution and Prison for PMOI/MEK Supporters----Call for
urgent international action to save the lives of political prisoners
On Sunday, May 19, 2019, a court in Tehran headed by notorious henchman
Mohammad Moghiseh, sentenced a political prisoner, Abdullah Ghassempour, on
mullahs-made charges of "aggression", "assembly and collusion against the
regime," and "membership, propaganda and cooperation with the People’s
Mojahedin Organization (PMOI/MEK)" to death.
The same court sentenced 3 other prisoners, Mohammad Hossein Ghassempour
(brother of Abdullah Ghassempour), Alireza Habibian (a relative of Ghassempour)
and Akbar Dalir, to 5 1/2 years in prison for similar charges. The 4 prisoners
were arrested in May of 2018 by repressive forces and taken to Evin Prison.
The criminal mullah Mohammad Moghiseh (Naserian) is a henchman who has been
interrogating and torturing political prisoners since the 1980’s, and during
the massacre of 1988, he sent scores of prisoners to death squads in Gohardasht
Prison. The Iranian Resistance in the book "Crime Against Humanity" in 2001 and
in the book "Fallen for Freedom, A List of 20,000 PMOI Martyrs" in 2006, while
mentioning some of the Moghiseh’s crimes, listed him as someone who must be
tried for crimes against humanity.
While the clerical regime has been unable to cope with the rising social and
growing activities of resistance units and resistance councils, it tries in
vain to control the situation and to prevent increasing popular uprising by
widespread arrests, criminal death sentences and long-term imprisonment.
On April 19, Mahmoud Alavi, the clerical regime’s Minister of Intelligence,
reported the arrests of 116 teams associated with the MEK in the past year.
Subsequently, the Director General of the intelligence ministry in East
Azerbaijan Province on April 24, 2019, announced that there had been 110
arrests and encounters with the Mojahedin in the province in 2018. The People’s
Mojahedin Organization of Iran (PMOI/MEK) announced the names of 31 arrestees
on April 23 and May 17, 2019.
The Iranian Resistance calls on the Secretary-General, the High Commissioner
and the Human Rights Council of the United Nations and international human
rights organizations to take urgent action to save the lives of Abdullah
Ghassempour and other political prisoners facing torture and executions and
long term imprisonment, and calls for the appointment of delegations to visit
the regime's prisons and to meet with political prisoners.
(source: Secretariat of the National Council of Resistance of Iran)
BRUNEI:
Brunei’s Pernicious New Penal Code
Brunei’s Syariah Penal Code (2013) went into effect on April 3, 2019.[1] The
new code poses grave threats to fundamental human rights and discriminates
against the country’s most vulnerable groups, including children, women, and
religious and sexual minorities.
Many of the code’s provisions violate Brunei’s obligations under international
human rights conventions to which Brunei is a party and customary international
law. Brunei is a state party to the Convention on the Rights of the Child (CRC)
and the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW).[2] Brunei has signed, but not yet ratified, the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.[3] As a member state of the United Nations, Brunei has pledged to
respect the Universal Declaration of Human Rights, whose provisions are
considered reflective of customary international law.
In light of the fundamental rights implicated by the penal code, discussed
below, and Brunei’s international human rights obligations, we therefore
strongly urge the Brunei government to:
Immediately repeal the Syariah Penal Code (2013);
Ensure all penal law provisions are consistent with international human rights
law; and
Take necessary steps to ratify the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment; the International Covenant on
Civil and Political Rights; and other core UN human rights treaties.
This document highlights the penal code’s most egregious violations of
international human rights law.
Right to Life
The Brunei penal code imposes the death penalty (by stoning) for the so-called
crimes of zina, or sex between unmarried couples (articles 68 and 69), and
liwat, or anal sex (article 82). Zina is prohibited between Muslims or couples
in which one partner is a Muslim, while the criminalization and the punishment
of liwat applies to all persons regardless of their religious beliefs.
The right to life is enshrined in article 3 of the Universal Declaration of
Human Rights. Arbitrary deprivation of life is absolutely prohibited under
international law.[4] In interpreting the right to life, the UN Human Rights
Committee, in its General Comment No. 36, states that “under no circumstances
can the death penalty ever be applied as a sanction against conduct whose very
criminalization violates the Covenant” – including adultery and
homosexuality.[5] Under international law, retaining the death penalty for such
“offenses” is considered a form of arbitrary deprivation of life.
In apparent response to the huge global outcry against the new penal code, on
May 5, 2019, the sultan of Brunei said that Brunei had adopted a “a de facto
moratorium on the execution of death penalty for cases” and this would also
apply to the cases under its 2013 Brunei Sharia Penal Code, including anal
intercourse and sex between unmarried couples, among others.[6] Beyond not
addressing the broader human rights concerns of the penal code, discussed
below, the de facto moratorium on capital punishment would still allow for the
sultan to restore the death penalty at any time.
During Brunei’s Universal Periodic Review at the UN Human Rights Council on May
10, 2019, the Foreign Minister of Brunei asserted that the prohibition on
consensual same-sex conduct “is to ensure such acts are refrained and are
limited to the private space.”[7] This is a patently false claim, because the
letter of the law clearly criminalizes same-sex sexual acts in private. The
text of the penal code does not make any distinction between consensual
same-sex acts in private and in public – the claim made by the Foreign Minister
is inconsistent with the provisions of the penal code.
By retaining the abusive provisions in the law, Brunei is bluntly violating its
international legal obligations, under human rights treaties and customary
international law, to respect the right to life.
The Rights of the Child
The new penal code imposes criminal liability and corresponding punishment –
including stoning, whipping, and imprisonment – upon children who have obtained
puberty, referred to as “baligh.” Children who are over the age of 15 and are
considered to be of sound mind (referred to as “mulkallaf”) are subject to
death by stoning for adultery or rape. Children deemed old enough to know the
difference between right or wrong, referred to as “mumaiyiz” and traditionally
interpreted under Sharia to be around age 7, may be punished with whipping.
Article 40 of the Convention on the Rights of the Child requires states to
“recognize the right of every child alleged as, accused of, or recognized as
having infringed the penal law to be treated in a manner consistent with the
promotion of the child's sense of dignity and worth.” Further, article 37
explicitly prohibits imposing any form of torture or other cruel, inhuman, or
degrading treatment or punishment on children, and article 19 obligates states
to “protect the child from all forms of physical or mental violence.” In
particular, the CRC absolutely prohibits imposing the death penalty for actions
committed by anyone under age 18.[8] The Committee on the Rights of the Child,
which provides authoritative guidance on the CRC, has also concluded that any
form of corporal punishment violate the principles of juvenile justice set out
in article 40 of the convention and the right of the child to freedom from all
forms of violence. [9]
These penal code’s provisions that retain the death penalty for acts committed
under age 18 are prohibited under the CRC and customary international law. Also
prohibited are provisions permitting stoning, whipping, or flogging of
children, as well as adults.
Prohibition of Torture and Other Ill-Treatment
Under the penal code, sex outside marriage and engaging in anal sex are both
punishable by stoning to death (articles 69 and 82). The penal code also
stipulates that robbery (“hirabah”) is subject to multiple amputations,
including the right hand and the left foot (articles 62-63) and theft
(“sariqah”) is subject to amputation of the right hand for first offense and
the left foot for second offense (articles 52 and 55). These punishments amount
to torture under international law.
Other provisions include forms of corporal punishment that violate the
prohibition against cruel, inhuman, and degrading treatment or punishment, and
may amount to torture. Relevant provisions include:
sex outside marriage – 100 strokes by whipping, in addition to possible death
by stoning (articles 68 and 69)
alcohol consumption – 40 strokes by whipping (only applicable to Muslims)
(article 74)
rape – 100 strokes by whipping, in addition to possible death by stoning
(articles 75 and 76)
lesbian sex – 40 strokes by whipping (article 92)
false accusation – 80 strokes by whipping (articles 95 and 98)
The prohibition under international law of torture and other cruel, inhuman, or
degrading treatment or punishment is absolute. Enshrined in article 5 of the
Universal Declaration of Human Rights and multiple international and regional
human rights treaties, the prohibition of torture reflects customary
international law and is considered a jus cogen norm, meaning no treaty can
supersede the prohibition. The use of stoning or amputation as a punishment
constitutes a form of torture and amounts to cruel, inhuman, or degrading
treatment or punishment.[10]
Freedom of Expression
In the Brunei penal code, several provisions impose criminal punishment for
acts that violate the right to freedom of expression. The code imposes the
death penalty for insulting or defaming the Prophet Mohammad (articles 63, 76
and 220) by both Muslims and non-Muslims.
The law also punishes and imposes criminal liability for “indecent” dressing
and cross-dressing (articles 197 and 198), which arbitrarily restricts freedom
of expression and freedom of association, as well as privacy rights, and
constitutes a form of discrimination on the basis of gender expression.
The penal code also criminalizes apostasy (referred to as “irtidad”) –
including acts such as declaring oneself to be god or a prophet; showing
contempt towards the prophet; deriding (through mocks, mimicking, ridicules,
and insults) the Quran, the hadith (narrative record of the sayings and customs
of Muhammad), and obligatory matters in relations to ijma (usually referring to
consensus and agreement in relation to Islamic laws); and renouncing Islam
(articles 108, 109, 110, 111 and 112). The penal code criminalizes the act of
issuing any publications contrary to hukum syara (laws of any sect that the
court considers valid) (article 213); punishes any acts of “delivering or
giving publications relating to religion other than Islam” – even if a person
only requests it, that person is subject to a penalty (article 214); and
punishes the use of words reserved for Islam to express any “fact, belief,
idea, concept, act, activity, [or] matter” related to other religions (article
217).
Under international law, the right to freedom of expression guarantees
everyone’s right to “hold opinions without interference to seek, receive, and
impart information and ideas through any media and regardless of frontier.”
This fundamental human rights norm, reflective of customary international law,
finds its expression in article 19 of the Universal Declaration of Human Rights
and many other human rights instruments.
International law prohibits any law from discriminating against certain
religions or beliefs, or their adherents over another, or religious believers
over non-believers.[11] It is also impermissible for prohibitions in domestic
laws to be used to “prevent or punish criticism of religious leaders or
commentary on religious doctrine and tenets of faith.”[12]
The above provisions in the penal code constitute arbitrary interference with
the right to freedom of expression and discrimination against non-Muslims in
violation of Brunei’s international legal obligations.
Freedom of Religion
The Brunei penal code now imposes criminal punishment upon acts of propagating
any religion other than Islam to Muslims or persons with no religion (article
209), exposing Muslim children to other religions (article 212), persuading
Muslims to change religion (article 210), persuading a non-believer to follow a
religion other than Islam or to dislike Islam (article 211), and neglecting or
opposing Islamic religious authorities (article 230), among others. The penal
code also punishes any attempts to, or assistance offered, to the conduct
mentioned above. All these provisions place non-Muslim religious believers and
non-believers in general in a disfavored status, and severely limits their
freedom of religion in violation of international human rights law.
International human rights law obligates governments to afford the right to
freedom of religion to all. This right, enshrined in article 18 of the
Universal Declaration of Human Rights, includes the freedom to change one’s
religion or belief and to manifest one’s religion or belief in teaching,
practice, worship, and observance. This right also includes the right to be a
religious believer or non-believer.
In 2010, during Brunei’s appearance at the Universal Periodic Review (UPR) at
the UN Human Rights Council, the government pledged to fully respect the
freedom of religion and that “the importation of religious materials or
scriptures regardless of any faiths is not banned in the country.”[13]
The UN Human Rights Committee has stated in a general comment that “all forms
of opinion are protected under the right to freedoms of opinion and expression,
including opinions of a ‘political, scientific, historic, moral, or religious
nature.’”[14] Therefore, in addition to infringing upon freedom of religion,
these restrictive provisions also violate the rights to freedom of opinion and
expression.
Women’s Rights
The new penal code has a wide range of provisions that discriminate against
women and girls. It punishes extramarital sex and imposes death by stoning as
punishment (articles 61-81). The CEDAW Committee has noted its concern that
women in Brunei “are disproportionately affected by punishment for ‘crimes’
involving sex, and are at a higher risk of being convicted of adultery and
extramarital relations, owing to discriminatory investigative policies and
provisions on the weighing of evidence.”[15] Furthermore, the narrow
evidentiary standards required to prove rape may dissuade rape survivors from
approaching authorities since they could risk being accused of zina.[16] Hence,
in addition to violating the prohibition against torture and other cruel,
inhuman, and degrading treatment or punishment, imposing death by stoning for
extramarital sexual relations also violates Brunei’s legal obligations to
ensure equality before the law under CEDAW and customary international law.
The penal code further criminalizes having an abortion or intentional
miscarriage, or performing or “abetting” an abortion or intentional
miscarriage, punishable by fines and prison time of up to 10 years (articles
158-163). Committing “close proximity” (referred to as “khalwat”) – cohabiting
or living together in an extramarital context – is also criminalized and
punishable by prison terms (article 196).
Many other provisions in the penal code infringe on women’s rights. Relevant
provisions include:
instigating a Muslim man or woman to divorce or to neglect marital duties
(article 199)
preventing a legally married Muslim couple from cohabiting (article 200)
enticing a Muslim woman to leave the matrimonial home (article 201)
enticing a Muslim woman to leave her parents or guardian (article 202)
enticing an unmarried Muslim woman to leave custody of her parents or guardian
(article 203)
The Attorney General’s December 2018 notice currently excluded from
implementation article 94, which punishes pregnancy or giving birth out of
wedlock with a prison term.
These provisions discriminate against women and violate a wide range of their
rights under international human rights law. As a party to the Convention on
the Elimination of All Forms of Discrimination against Women, Brunei has an
international legal obligation to take all necessary measures to eliminate all
forms of discrimination against women and to take “all appropriate measures,
including legislation, to ensure the full development and advancement of women,
for the purpose of guaranteeing them the exercise and enjoyment of human rights
and fundamental freedoms on a basis of equality with men.”[17] CEDAW mandates
governments to take all necessary measures to eliminate “prejudices and
customary and all other practices” that contravene equality between men and
women.[18] Furthermore, CEDAW obligates governments to guarantee equality
between men and women before the law and in the context of marriage and family
life.[19]
Rights of Sexual and Gender Minorities
The Brunei penal code discriminates against and poses grave threats to lesbian,
gay, bisexual, and transgender (LGBT) people.
Any form of anal intercourse is punishable by stoning to death (articles 82, 85
and 86). This provision is applicable to both Muslims and non-Muslims. Any form
of sexual conduct between women (lesbianism, referred to as “musahaqah”) is
punishable with up to 40 strokes with whips and prison terms up to 10 years
(article 92). The article applies to lesbian acts between Muslims or between a
non-Muslim and her Muslim partner.
These provisions violate the rights to privacy and equality before the law, and
the punishments violate the rights to life, and to be protected from torture
and other ill-treatment.[20]
The penal code also criminalizes nonconforming gender expression, punishing
“any man who dresses and poses as a woman or any woman who dresses and poses as
a man in any public place” (article 198) with prison time and a fine. “Indecent
behaviour” in public, which includes any act that could “bring bad influence”
(article 197), is also prohibited. Both articles are applicable to both Muslims
and non-Muslims. These provisions, in addition to infringing on freedoms of
expressions and association, threaten the rights to privacy of transgender and
gender non-conforming people.
At a time when many countries are decriminalizing consensual same-sex conduct,
Brunei has joined seven countries that punish consensual homosexual acts with
the death penalty. These provisions not only violate the prohibition on torture
and other cruel, inhuman, or degrading treatment or punishment, but also
violate the fundamental rights of sexual and gender minorities.
Application of the Penal Code to Non-Muslims and Non-Brunei Nationals, and
Extraterritorial Application
In some legal systems derived from the Quran, Sharia law applies only to
Muslims. In contrast, most of the articles in Brunei’s Syariah Penal Code are
applicable to both Muslims and non-Muslims.
For example, articles 82 and 84, punishing anal sex between two men or a woman
and a man, applies to both Muslims and non-Muslims. Punishments for
extramarital sex (article 69), and sexual relations between women (article 92),
apply in instances in which the accused persons are two Muslims or a Muslim and
a non-Muslim. Non-Muslims who commit “khalwat” – living together, cohabiting,
or being in close proximity to another in private –is punished with
imprisonment and a fine (article 196). Anyone, regardless of whether they are
Muslim or not, who publicly consumes food, drink, or tobacco before sundown
during the Islamic holy month of Ramadan faces imprisonment and a fine (article
195).
These criminal offenses also apply to foreign nationals in Brunei, subjecting
them to the death penalty, torture, and other ill-treatment, as well as
discrimination on the basis of their age, gender, religious belief, or sexual
orientation. Article 184 of the penal code also sets out that offenses
committed abroad by a citizen or permanent resident of Brunei may be prosecuted
in Brunei.
[1] See the full text of the Brunei Penal Code, available at:
http://www.agc.gov.bn/AGC%20Images/LAWS/Gazette_PDF/2013/EN/S069.pdf.
[2] See UN Treaties Depository Records on CRC, available at:
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&ch... see
UN Treaties Depository Records on CEDAW, available at:
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&;....
[3] Brunei became a signatory to the Convention against Torture on September
22, 2015, but it has yet to take any steps to ratify the treaty. See UN
Treaties Depository Records available at:
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&cha....
Under article 18 to the Vienna Convention on the Law of Treaties, a signatory
state is “obliged to refrain from acts which would defeat the object and
purpose of a treaty.”
[4] UN Human Rights Committee, General Comment No. 36 on article 6 of the
International Covenant on Civil and Political Rights, on the right to life,
October 30, 2018, U.N. Doc. CCPR/C/GC/36, at para. 2. See also Communication
No. R 11/45, Suarez de Guerrero v. Colombia, Views adopted on 31 March 1982, at
para. 13.1; Communication No. 146/1983, Baboeram Adhin v. Suriname, Views
adopted on 4 April 1985, at para. 14.3.
[5] UN Human Rights Committee, General Comment No. 36 on article 6 of the
International Covenant on Civil and Political Rights, on the right to life, at
para. 36.
[6] The statement is available at:
http://www.pmo.gov.bn/Lists/TITAH/NewDispform.aspx?ID=332&Source=http%3A...
[7] The recording of the said UPR session is available at:
http://webtv.un.org/watch/brunei-darussalam-review-33rd-session-of-unive...
[8] Article 37(a) of the CRC provides, in relevant part, “Neither capital
punishment nor life imprisonment without possibility of release shall be
imposed for offences committed by persons below 18 years of age.”
[9] See UN Committee on the Rights of the Child, General Comment No. 10:
Children’s Rights in Juvenile Justice, U.N. Doc. CRC/C/GC/10 (2007), paras. 71,
89; see also Committee on the Rights of the Child, General Comment No. 8: The
Right of the Child to Protection from Corporal Punishment and Other Cruel or
Degrading Forms of Punishment, U.N. Doc. CRC/C/GC/8 (2007), para. 32 (noting
that the CRC requires repeal of provisions that allow children to be sentenced
to corporal punishment using canes or whips). As the committee has observed:
“There is no ambiguity: ‘all forms of physical or mental violence’ does not
leave room for any level of legalized violence against children.” Ibid., para.
18.
[10] UN General Assembly, Report of the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, 9 August 2012, U.N. Doc.
A/67/279, paras. 31, 77; UN General Assembly, Report of the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, 30
August 2005, U.N. Doc. A/60/316; see also Consideration of Reports Submitted by
States Parties under Article 19 of the Convention, Conclusions and
Recommendations of the Committee against Torture – Yemen, 5 February 2004, U.N.
Doc. CAT/C/CR/31/4; see also UN Commission on Human Rights, Commission on Human
Rights Resolution 2003/67: The Question of the Death Penalty, 24 April 2003,
E/CN.4/RES/2003/67, para. 4(i); UN Commission on Human Rights, Commission on
Human Rights Resolutions 2004/67: Question of the Death Penalty, 21 April 2004,
E/CN.4/RES/2004/67, para. 4(i); and UN Commission on Human Rights, Human Rights
Resolution 2005/59: The Question of the Death Penalty, 20 April 2005,
E/CN.4/RES/2005/59, para. 7(i).
[11] UN Human Rights Committee, General Comment No. 34 on article 19 of the
International Covenant on Civil and Political Rights, on the right to freedoms
of opinion and expression, 12 September 2011, U.N. Doc. CCPR/C/GC/34, para. 48.
[12] UN Human Rights Committee, General Comment No. 34 on article 19 of the
International Covenant on Civil and Political Rights, on the right to freedoms
of opinion and expression, 12 September 2011, U.N. Doc. CCPR/C/GC/34, para. 48.
[13] UN Human Rights Council, Report of the Working Group on the Universal
Periodic Review - Brunei Darussalam - Addendum - Views on conclusions and/or
recommendations, voluntary commitments and replies presented by the State under
review, 18 March 2010, U.N. Doc. A/HRC/13/14/Add.1.
[14] UN Human Rights Committee, General Comment No. 34 on article 19 of the
International Covenant on Civil and Political Rights, on the right to freedoms
of opinion and expression, 12 September 2011, U.N. Doc. CCPR/C/GC/34, para. 9.
[15] See UN Committee on the Elimination of Discrimination against Women,
Concluding observations on the combined initial and second periodic reports of
Brunei Darussalam, 14 November 2014, U.N. Doc. CEDAW/C/BRN/CO/1-2.
[16] See UN Committee on the Elimination of Discrimination against Women,
Concluding observations on the combined initial and second periodic reports of
Brunei Darussalam, 14 November 2014, U.N. Doc. CEDAW/C/BRN/CO/1-2.
[17] United Nations General Assembly, Convention on the Elimination of All
Forms of Discrimination against Women, 18 December 1979, United Nations Treaty
Series, vol. 1249, p. 13, articles 2 and 3.
[18] Ibid., article 5.
[19] Ibid., articles 15 and 16.
[20] See UN Human Rights Committee, Concluding observations of the Human Rights
Committee – Libyan Arab Jamahiriya, 6 November 1998, U.N. Doc.
CCPT/C/79/Add.101; see also Consideration of Reports Submitted by States
Parties under Article 19 of the Convention, Conclusions and Recommendations of
the Committee against Torture – Yemen, 5 February 2004, U.N. Doc.
CAT/C/CR/31/4; see also UN General Assembly, Report of the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, 30
August 2005, U.N. Doc. A/60/316; see also Winston Caesar v. Trinidad and
Tobago, Inter-American Court of Human Rights, Series C, No. 123, judgment of 11
March 2005.
(source: Human Rights Watch)
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