July 7
IRAQ:
The Iraqi judges fighting to reform the system from within----After heavy
criticism of trials of suspected Islamic State members, judges tell MEE about
the difficulties they face and how they are trying to improve the situation
Last month's decision by a Baghdad court to sentence to death 2 more French
nationals for belonging to the Islamic State group (IS), leaving all 11
Frenchmen transferred from Syria facing the gallows, has again brought
international attention to Iraq's judicial system.
Iraq has also tried thousands of its own nationals arrested on home soil for
joining IS, including women, and begun trial proceedings for nearly 900 Iraqis
repatriated from Syria.
The country remains in the top 5 "executioner" nations in the world, according
to an Amnesty International report in April.
The number of death sentences issued by Iraqi courts more than quadrupled
between 2017 and 2018, to at least 271.
But only 52 were actually carried out in 2018, according to Amnesty, compared
with 125 the year before.
Judges in Mosul and Baghdad have repeatedly come under attack over their
rulings, from so-called 10-minute trials to long prison sentences for the wives
of IS members.
While it is undeniable that many flaws persist in a mostly corrupt and
excessively bureaucratic system, improvements and attempts to reform the
process also need to be acknowledged.
Several judges have spoken out against the country's counter-terrorism laws,
especially the use of the death penalty, and some have travelled to the
International Criminal Court in The Hague to gain valuable knowledge.
The Babylonian code of law
On a small shelf beside his desk, Salem Nuri, chief judge of the Appeal Court
in Mosul and one of the judges trying to make a change, keeps a small sculpture
of the Code of Hammurabi, the Babylonian code of law of Ancient Mesopotamia.
"This is the history of Iraq," he told Middle East Eye, taking it from the
shelf and placing it on the stack of papers on his desk.
"The first codes of law in the world were born in this land. We believe in
justice and the rule of law, and this is why judges in Mosul were the first
target of the Islamic State in 2014 and before.
"We are now trying to work to restore our society."
Nuri left the city in 2014, together with his family, and moved to Erbil, the
capital of the Kurdistan Regional Government.
The Iraqi army retook Mosul in 2017, after a nearly 9-month-long offensive
against IS.
Nuri's house was bombed and destroyed, along with it "all its memories," during
the battle for Mosul.
Today, he can work again in his city, but every afternoon after finishing work
he travels Erbil
This is something Chief Investigative Judge Raed al-Maslah, another reforming
judge, cannot do.
Maslah's family is in Baghdad, and every night he sleeps in a small room next
to the office of the Special Court for Terrorism Cases in Tal Kayf, Nineveh's
counter-terrorism court, 12km north of Mosul.
"I have to read all the files of the cases," he said, pointing to piles of
papers.
"I have to see the newly arrested, to check the procedures. I go to visit some
prisoners. But also for some security reasons, I don't move too much. Only
every 40 days I travel to visit my family for a weekend."
'10-minute trials'
Following the battle for Mosul and the "defeat" of IS, Iraq's criminal justice
system had to carry a heavy burden, having to investigate and prosecute the
large numbers of IS detainees.
It quickly became the target of criticism from international human rights
organisations for flaws in the trial of suspected IS members.
Human Rights Watch (HRW) documented and denounced harsh sentences given to
several hundred people, including death sentences handed out under the number
13 counter-terrorism law of 2005.
So-called 10-minute trials by the Central Criminal Court in Rusafa, Baghdad -
where critics said defendants were briskly dealt with without due procedure -
especially drew the ire of the international media last year.
What went largely unnoticed were the investigations behind these hearings.
Recently, a HRW report recorded improvements in the procedures, detailing the
work done in Tal Kayf, mostly under the guidance of Maslah.
"Our investigation work is based on documentary evidence and not only on
confessions: we have witnesses' accounts of victims and survivors, but also
videos, social media and forensic materials, and all the kinds of evidence
supporting the investigation," Maslah told MEE.
"The media sometimes ruins our investigative work. On the contrary, we need
international support because terrorism is a danger for all the countries in
the world."
David Marshall, a former team leader of the accountability and administration
of justice section of the United Nations Assistance Mission for Iraq (UNAMI),
told MEE last November that merely criticising the Iraqi justice system was "a
little bit unfair".
Marshall has assisted many court sessions in Kharkh, Baghdad, where the process
was significantly more professional than in Rusafa, he noted.
"Investigation files are thick. The 10-minute trials are the final hearings
which summarised months of fact-finding and investigation that consists of
numerous sessions," he told MEE.
Support from The Hague
Last July, Maslah took part in a pilot training scheme for Iraq at the
International Criminal Court in The Hague, the Netherlands, supported by United
Nations Office on Drugs and Crime (Terrorism Prevention Branch).
The topic of the workshop was: "The Accountability of ISIL/Daesh in Iraq:
Collection of Evidence, Trials and International Cooperation."
Maslah contributed together with the president of the Higher Judicial Council,
Chief Judge Faeq Zeidan, to explain the challenges of the investigations, the
collection of evidence, and the workings of the trials.
"We need an alliance to combat IS: we call on the countries in the world to
share all the information, and if they don't want to judge the foreign fighters
in their countries of origins, we will judge them here. This is necessary to
do," Maslah said.
Gathering Iraqi judges in The Hague with practitioners from the international
criminal tribunals allowed them to share their experiences as well as
highlighting the international dimension of criminal trials taking place in The
Hague.
In May last year, the UN Secretary-General Antonio Guterres appointed Karim
Asad Khan as special adviser and head of an investigative team to support
domestic Iraqi efforts to hold IS accountable for its actions.
The position arose out of a resolution passed in 2017 calling on the creation
of such a team "to support domestic efforts to hold IS accountable by
collecting, preserving and storing evidence in Iraq of acts that may amount to
war crimes, crimes against humanity and genocide committed by the terrorist
group".
Khan, an international criminal and human rights lawyer, is currently working
in collaboration with the Iraqi government and courts with a 2-year mandate.
Counterterrorism law criticised
"But the problem is the [counter-terrorism] law of 2005," defence lawyer Firas
al-Khazali told MEE, referring to law number 13.
"According to this law, every person accused of having a role – either a major
or minor role - in a terrorist organisation is guilty and can be sentenced to a
life sentence [20 years in Iraq] or death sentence.
"Iraqi judges and lawyers feel under pressure and are under threat because if
they defend or forgive an accused, they might be considered IS supporters. We
need first to reform the law."
Another judge in Baghdad, who asked not to be named, also told MEE about his
discomfort with the Iraqi counter-terrorism law.
"I am against the death penalty, but sometimes according to the evidence
collected during the investigations and so following the law, I have to
sentence some accused to death.
"This doesn't belong to my being; it doesn't belong to my culture."
The same judge told MEE that in some cases he understood from the hearings that
some women had nothing to do with IS and so he had ordered their release.
But then the cases were re-appealed, and he had to sentence them just for the
affiliation to their husbands' organisation.
Same old faces
Iraqi judges and prosecutors are well experienced with terrorism-related cases
to the point that they sometimes recognise some accused from previous trials.
"Many of the Camp Speicher massacre's criminals escaped from Abu Ghraib prison
in 2013," Jawwad Hussein, previously an investigation judge, now appointed as
criminal judge in Rusafa, told MEE.
"They found shelter in the desert in Anbar, and then they moved to all the
provinces when IS took power.
"I know them personally, I already condemned some of them in 2010.
"Many others were in the local prison in the Salah al-Din province, I was
dealing with their cases.
"They escaped on 10 June 2014 and in order to prove their loyalty to Daesh,
they were ordered to participate in the mass killing of Speicher cadets two
days later," he revealed, using the Arabic acronym for IS.
On 12 June 2014, IS killed around 1,700 Shia Iraqi air force cadets in an
attack on Camp Speicher in Tikrit.
Mistaken identity
According to the law, the accused have the right to defend themselves, and a
fair trial has to be guaranteed, but the accused often declare to have
confessed their crimes under torture.
Defence lawyer Nour Khaled, who has dealt with terrorism cases for the past
five years, told MEE: "I gained the trust of the families and so they call me.
"I take the cases when I am sure that the accused is innocent and he is
unfairly in jail.
"I have to provide a medical report to prove that my client was tortured to
confess crimes he never committed."
One of her clients, who talked to MEE after a court session and asked not to
mention his name, was a former football player.
"I am accused of having put a hand grenade in an army car, but I am innocent,"
he said.
The lawyer said he is probably a victim of mistaken identity.
"We have many similar names in Iraq, and many innocent men are in jail for this
reason," Firas al-Khazali said.
"Another problem is the secret informants. Some are working for the security
services, some others are simply citizens who can accuse a neighbour for his or
her own interests."
'Better to see a guilty man free than an innocent one in jail'
In investigations, all the information and declarations to find the truth have
to be checked.
The judge should also open investigations on alleged cases of torture, but it
rarely happens.
Khaled al-Mashadani, the chief judge of appeal in Kharkh, Baghdad, still has
trust in the judges' work.
"I worked in Anbar from 2006 on, working on al-Qaeda crimes, I know their
styles and methods, but it's very hard to judge all these cases," said
Mashadani.
"In the difficulties or uncertainty, we will go on every day to condemn or set
free a man, or a woman, in this country,” he told MEE.
"The principle we follow is written in a hadith [the sayings of the Prophet
Mohammad], whose meaning is: 'It is better to see a guilty man free than an
innocent one in jail,'" he said.
(source: middleeasteye.net)
SRI LANKA:
Lost in Translation?
When President Sirisena announced his intention to hang the convicted drug
offenders lingering in the death cells of Welikada prison, he was congratulated
by President Duterte of the Philippines.When he returned from a recent visit to
the Philippines, President Sirisena publicly expressed his admiration for the
manner in which President Duterte was dealing with drug offenders in that
country. The 2 presidents appear to have misunderstood each other. The death
penalty was abolished in the Philippines in 1987, and President Duterte’s
method of dealing with the drug problem has been to order the police to kill
suspected drug dealers and drug users. Thousands are reported to have been
murdered in their homes and on the streets. Duterte once claimed with pride
that he himself had killed 1 or 2. Sirisena does not appear to be aware of the
pariah status that Duterte has earned for himself within the international
community.
President Sirisena has reportedly signed four death warrants requiring the
prison authorities to kill 1 woman and 3 men by hanging them by their necks
until they are dead. It is not known how these four people were singled out,
and by whom. It was earlier reported that the President had identified 19
prisoners from among those convicted and sentenced to death as those who had
been indulging in the drug trade from within the prison premises.That, of
course, cannot be the basis for signing a death warrant. None of them have yet
been indicted or convicted of the offence of drug trafficking from within
prison premises. A prisoner has first to be charged with that offence,
convicted and sentenced to death by a court, had his appeal dismissed, and then
been recommended for execution by the Minister of Justice before the President
can sign his or her death warrant. Any other course of action would constitute
extra-judicial murder.
The legislative history
The death penalty was suspended in 1956 by an Act of Parliament on the
initiative of Senator M.W.H. de Silva, K.C., Minister of Justice in
S.W.R.D.Bandaranaike’s government. In an emotion-driven decision, it was
hurriedly restored through a flawed emergency regulation following the
assassination of Bandaranaike in 1959. In 1976, when I was Permanent Secretary
to the Ministry of Justice, a policy decision was reached to suspend judicial
executions. Consequently, on May 22 1977, the 5th anniversary of the Republic,
President Gopallawacommuted the sentences of everyone on death row: 144 men and
3 women. Thereafter, President Jayewardene and his successors in office,
Presidents Premadasa, Wijetunge, Kumaratunga and Rajapaksa, commuted every
sentence of death.
The constitutional obligation
Then, as now, the Constitution prescribed the procedure to be followed when an
accused person was sentenced to death by a trial court. Article 34 of our
present Constitution states, following the imposition of such sentence, the
President shall cause a report to be made to him by the trial Judge.
He shall forward such report to the Attorney General for his advice.
Thereafter, the President shall send both reports to the Minister of Justice
who will make the final recommendation whether the sentence should be carried
out or whether it should be commuted to life imprisonment. When the President
acts on that advice, and makes the appropriate order, the case is closed. The
death sentence cannot be reinstated.
The procedure followed when Felix Dias Bandaranaike was Minister of Justice was
prescribed in a Ministry standing order. If either the trial Judge or the
Attorney General had recommended that the sentence should not be carried out,
the Minister advised that the sentence be commuted to one of life imprisonment.
If the trial Judge and the Attorney General had both recommended that the
sentence be carried out, a senior assistant secretary examined the case record
and the investigation notes for 1 of 3 elements: (i) evidence of premeditation
(ii) excessive cruelty in the commission of the murder (iii) any other material
that “shocks the conscience”. If one of these elements was present, the
Minister advised the President to let the law take its course.
The Prime Minister has declared that his political party is opposed to the
death penalty. Therefore, if the Minister of Justice had, in performing her
constitutional duty, followed the policy adopted by her predecessors for 43
years, and advised that every death sentence be commuted to life imprisonment,
there would be no prisoners today under sentence of death. They would be
serving life sentences. A prisoner serving a life sentence cannot now be
hanged. On the other hand, if there are prisoners still lingering in death row,
it means that the reporting procedure in respect of them, as required by the
Constitution, has not yet been performed, and they cannot therefore be hanged.
It is, of course, possible that the Minister of Justice had, in defiance of her
party policy, and in order to accommodate the President’s publicly declared
wish to have at least a few human beings hanged before his term of office ends
this year, recommended execution.
If that be the case, the Minister’s recommendation will surely be challenged in
court as having been influenced by irrelevant considerations. The Minister
would not have brought to bear her own independent judgment as required by the
Constitution but would instead have been influenced by the President’s publicly
declared desire.”
Empirical evidence
There is now an international commitment to abolish the death penalty. This is
not only because of the desire to respect the dignity of the human being and
the sanctity of human life, but also because the global empirical evidence
demonstrates beyond any shadow of doubt that the death penalty does not serve
as a deterrent. The most effective deterrent to crime is the certainty of
detection. Competent policing, efficient prosecution, and expeditious trial–
none of which are evident in Sri Lanka today – should be the primary objective
of the Government. If, in the absence of such deterrent, an individual proceeds
to a life of crime, the progress that humanity has made through the centuries
now demands that that individual be afforded an opportunity for rehabilitation,
for reform, for repentance, for hope, for spiritualty, so that one day he or
she may be able to enjoy those fundamental rights and freedoms which others
outside the prison walls enjoy, but which are only possible if his or her right
to life is not extinguished.
The international consensus
The Second Optional Protocol to the International Covenant on Civil and
Political Rights requires that no one shall be executed and that each State
shall take all necessary measures to abolish the death penalty within its
jurisdiction. In 1983, the Council of Europe abolished the death penalty in
peacetime, and in 2002 abolished the death penalty in all circumstances,
including wartime.
Similar instruments have been adopted by the states parties to the American
Convention on Human Rights. In 2014, the African Commission on Human and
People’s Rights developed a protocol on the abolition of the death penalty.
More than 160 of the 193 member-states of the United Nations have abolished the
death penalty or introduced a moratorium, either in law or in practice.They
include all the countries of Europe including Russia, nearly all the countries
of Africa, and all the countries of South and Central America and Canada, as
well as Australia, New Zealand and much of the Pacific and the Caribbean.
Violation of a fundamental right
Article 11 of the Constitution states that “No person shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”. There is
now a considerable body of international jurisprudence on the interpretation of
this Article. For example, the Constitutional Court of South Africa has held
that the death penalty is a “cruel punishment”.
The Court of Appeal of Tanzania has held the death sentence to be both “cruel
and degrading punishment”. In Canada, 3 Judges of the Supreme Court expressed
the view that capital punishment per se constituted “cruel and unusual
punishment”:“The death penalty not only deprives the prisoner of all vestiges
of human dignity. It is the ultimate desecration of the individual as a human
being”. The Judicial Committee of the Privy Council is among several courts
which have held that the mandatory sentence of death, based solely upon the
category of crime (e.g. drug related offences in Sri Lanka), without regard to
the o?ender’s personal circumstances or the circumstances of the particular
o?ence, constitutes “cruel, inhuman or degrading treatment or punishment”.
Breaking the 43-year moratorium
If Sri Lanka now breaks its 43-year moratorium on executions, it is inevitable
that economic concessions granted by the European Union including GSP+ will be
withdrawn. Assistance from abroad in the investigation of crime will not be
forthcoming.
Requests by Sri Lanka for the extradition of persons awaiting trial or already
tried and convicted will probably be refused by other States because of the
unpredictability of the sentencing policy of the Government.
It was only a few months ago that President Sirisena, in elaborate island-wide
ceremonies, proclaimed the Tripitaka as a national heritage, and called upon
the international community to inscribe it on the UNESCO Memory of the World
Register. Many beyond our shores who truly and faithfully adhere to the
philosophy of life based upon tolerance and compassion as expounded by the
Buddha will now stand aghast as the only country in the world whose
Constitution requires the State “to protect and foster the Buddha Sasana”
addresses four human beings confined in a prison cell and tells each of them:
“You are beyond the pale of humanity.You are not fit to live among humankind.
You are not entitled to life. You are not entitled to dignity. You are not
human. I will therefore annihilate your life”.
A concluding vision
Despite his desire to exercise his power in this respect, it is unlikely that
President Sirisena will be present to witness each of the chosen four being
hanged by his or her neck until he or she is dead.
Therefore, for his benefit, I would entreat him, at sunrise on each of the four
mornings, to read to himself the execution of the death penalty as described by
Professor Chris Barnard:
“The man’s spinal cord will rupture at the point where it enters the skull,
electro-chemical discharges will send his limbs flailing in a grotesque dance,
eyes and tongue will start from the facial apertures under the assault of the
rope and his bowels and bladder may simultaneously void themselves to soil the
legs and drip on the floor”.
(source: Opinion, Dr Nihal Jayawickrama----Sunday Observer)
********************
Bill to kill death penalty; petitions galore amid mounting calls to shut the
gallows
United National Party Galle district Parliamentarian Bandula Lal Bandarigoda
has submitted a Private Member’s Bill seeking to abolish the death penalty.
The Bill, if approved by Parliament, will abolish the death penalty and replace
the death sentence an offence carries under any Act with a maximum of life
imprisonment.
The Bill will cover not just sentences imposed after its passage but will also
apply to prisoners who have already been convicted and sentenced to death.
Accordingly, their punishment will be converted to life imprisonment.
On Friday, Mr Bandarigoda told journalists that the UNP’s Gampaha District MP,
Kavinda Jayawardena, and he were cosponsoring the Bill on moral grounds.
“I am a Buddhist and my colleague Mr Jayawardena is a Catholic. As a Buddhist,
I have a moral obligation to live by the Buddha’s philosophy, according to
which killing is abhorred. Buddhism’ first precept teaches us not to kill. The
death penalty allows killing of someone legally. We cannot agree to such a
thing, as Buddhism does not allow it,” he said.
Meanwhile the Prisons Commissioner General T.M.J.W. Thennakoon told the Court
of Appeal on Friday that he was yet to receive any communication from the
President on the date, time and location to execute any condemned prisoner.
The Prisons Commissioner General made this statement when Court of Appeal
President Yasantha Kodagoda inquired from him whether he had received any such
communication from the President.
The court asked this question when it took up the writ petition filed by
journalist Malinda Seneviratne against President Maithripala Sirisena’s
decision to implement the death penalty on those sentenced to death for drug
offences.
A five-judge Court of Appeal bench comprising its President Justice Yasantha
Kodagoda and Justices Deepali Wijesundara, Janak De Silva, Achala Wengappuli
and Arjuna Obeysekera is hearing the petition. On Friday, the court said that
it would decide on July 17 whether to accept preliminary objections raised by
the Attorney General regarding Mr Seneviratne’s petition.
In a related development, the Supreme Court on Friday granted interim relief
after considering a fundamental rights petition filed by a death row prisoner.
The court issued an order, staying the execution of any condemned prisoners
until October 30 this year.
The order was issued by a 3-judge bench comprising Justices Buwaneka Aluwihare,
Prasanna Jayawardena and Gamini Amarasekara.
The petition was first of the 13 FR cases filed against the decision to
implement the death penalty. The petition had been filed by death row prisoner
Mohammad Haniffa Praeem Nawas.
His lawyer Kavindu Hewa Geeganage filed the petition through Attorney-at-Law
Gowry Sangary Thavarasha and cited the Attorney General, Justice and Prison
Reforms Minister Thalatha Atukorale, Prisons Commissioner General T.M.J.W.
Thennakoon, Welikada Prison Superintendent T.G. Uduwara, Presidential Secretary
Udaya R. Seneviratne, the Human Rights Commission of Sri Lanka and Bar
Association President Kalinga Indatissa as respondents.
Making submissions on behalf of the petitioner, M.A. Sumanthiran, PC pointed
out that the country’s last execution occurred in 1976 and the death penalty
had not been carried out in the country since the enactment of the 1978
Constitution. He argued that the death penalty contravened the Constitution’s
Article 11, which prohibits a person being subjected to “torture or to cruel,
inhuman or degrading treatment or punishment.”
Deputy Solicitor General Nerin Pulle, who appeared for the Attorney General,
contended that the Constitution’s Article 13(4) provides for the implementation
of the death penalty as it asserts that “No person shall be punished with death
or imprisonment except by order of a competent court, made in accordance with
procedure established by law.” He further drew the Court’s attention to Article
16(2), which notes that “the subjection of any person on the order of a
competent court to any form of punishment recognised by any existing written
law shall not be a contravention of the provisions of this chapter.”
He argued that the imposition of the death sentence was vested with the
judiciary and that the President’s role was limited to deciding on the date and
place where executions would take place, thus giving effect to a judicial
decree.
He said the petition was requesting Court to engage in a post-enactment
judicial review, which was not provided for under the Constitution.
Mr Pulle argued that the petitioners had not satisfied the threshold
requirement to enable the Court to grant interim relief.
After considering the submissions, Court granted interim relief, issuing a stay
order preventing the execution of any condemned prisoner until October 30 this
year.
The next hearing date will be on October 29, when the Court will hear all
petitions to decide on whether to grant leave to proceed.
(source: sundaytimes.lk)
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