Sept. 18
INDIA:
Odisha: Death penalty for Salipur rape & murder accused
A POCSO court today awarded death penalty to accused youth convicted in 2018
Salipur minor girl rape and murder case.
Yesterday, the special POCSO Court, Cuttack, had convicted accused Mohammed
Mustaque under sections 302, 363, 376 a-b of IPC and section 6 of Protection of
Children from Sexual Offences (POCSO) Act.
The accused had raped a 6-year-old girl near a school under Salipur police
limits on April 21, 2018. He had crushed her head with a stone following rape.
The girl was rushed to the SCB Medical College & Hospital in critical
condition, where she succumbed to injuries while undergoing treatment on April
29 last year.
This is the 5th case in Odisha where the accused persons were sentenced to
death for the heinous crime.
(source: Odisha Sun Times)
MALAYSIA:
Nov 27 death penalty appeal for Banting man who sold medicinal cannabis
The Court of Appeal has set November 27 to hear the appeal by a 30-year-old
father who was sentenced to death for trafficking cannabis which he claimed was
used for medicinal purposes.
A 3-man panel comprising Justices Datuk Yaacob Md Sam, Datuk Zabariah Mohd
Yusof and Datuk Lau Bee Lan fixed the hearing date when the matter came up
before the court today.
Earlier, Justice Yaacob granted an application by Muhammad Lukman Mohamad’s
lawyer Hisyam Teh Poh Teik to include two additional grounds in the petition of
appeal.
Deputy public prosecutor Datuk Nazran Mohd Sham did not object to the
application.
On August 30 last year, the Shah Alam High Court found Muhammad Lukman guilty
on 3 charges of trafficking 3,010mm of delta 9 Tetrahydrocannabinol (cannabis
extract), 1,422g of delta 9 Tetrahydrocannabinol and 279.81g of cannabis.
He was accused of committing the offences at a house in Bandar Mahkota, Banting
at 6.45pm on December 7, 2015.
(source: malaymail.com)
SRI LANKA:
2 Indian drug peddlers sentenced to life term in Sri Lanka
2 Indian nationals have been sentenced to life terms in Sri Lanka for drug
peddling, police said on Wednesday.
The 2 named Dhanivel Mani and Lebbai Jalaluddin Mohifeen Mohadeem have been
held in Sri Lanka since 2016.
They were sentenced by the Negombo High Court on Tuesday after they admitted to
pedaling heroin, police spokesman Ruwan Gunasekera said.
They were arrested by the Sri Lanka Customs and handed over to the Police
Narcotics Bureau.
The sentencing came as President Maithripala Sirisena was contemplating action
to renew the capital punishment for a drug-related crime. Sirisena's move was
halted by the apex court in response to a petition filed by public interest
activists.
The President had signed 4 death warrants when the Supreme Court stayed the
executions till October 30.
Sirisena's decision came in spite of a UN moratorium on the death penalty which
Sri Lanka has been a part of.
All Sirisena's presidential predecessors since 1978 had declined to sign death
warrants for capital punishment. The death sentence is commuted to life terms.
Sirisena said he was compelled to reintroduce the death penalty related to drug
crimes due to the growing menace of drugs.
(source: Press Trust of India)
PAKISTAN:
SC converts death sentence of 7 accused into imprisonment
The Supreme Court on Wednesday converted the death sentence of 7 murder accused
into 10-year imprisonment. A trial court awarded capital punishment to 7
accused while 6 accused were awarded life sentence over murder of 2 brothers in
Sialkot in 2010. The high court also maintained the trial court verdict. The
incident took place in Sialkot in 2010 where an angry mob shot and killed 2
brothers Hafiz Muneeb and Hafiz Mughez by terming them bandits. The apex court
also took suo moto notice over the incident. A 3-member Bench of the apex court
headed by Chief Justice Asif Saeed Khan Khosa comprising Justice Mazhar Alam
Khan Miankhel and Justice Qazi Muhammad Amin Ahmad heard the case through video
link from SC Lahore Registry. During the course of proceedings, the Chief
Justice said that two stories were made in this case and 2 FIRs were
registered. In first FIR injured persons were mentioned but in the second FIR
no injured person was mentioned, he added. He said that these are disadvantages
of the suo moto notices. He said that the State had the power to punish in case
of any crime. If people had captured the robbers, they did not have authority
to punish them, he added. He said that violence could not be allowed at all in
society. If courts released accused, people would get a licence to torture, he
added. The court after hearing the arguments converted death sentence of 7
accused and life imprisonment of 5 to 10 years imprisonment. Detailed judgment
of the case will be issued later.
(source: nation.com.pk)
************************
Shahid Afridi calls for public hanging of rapists
Former Pakistani cricketing star Shahid Afridi demanded on Wednesday the state
publicly hang people who have raped children to set an example for others.
He was speaking at a ceremony in Karachi. His comments came in response to a
question about the recent horrifying incident pertaining to child abuse and
murder in Punjab’s Kasur district.
Protests broke out in Kasur’s Chunian early Wednesday, a day after bodies of
three missing children were found. The protest was held outside the City
Chunian police station, where the demonstrators demanded the arrest of the
murderers.
Afridi said there lies a huge responsibility on the state in this regard,
demanding the public hanging of the perpetrators behind such heinous incidents.
He also said that no human rights group should object to capital punishment for
child abusers.
“An example should be set for others and no human rights [group] should have
any problem with it,” the former cricketer said.
According to police, 5 children have gone missing from various areas of Kasur
in the last 3 months, 1 of whom was identified as the boy whose body was found
on Tuesday. The 2 other children have yet to be identified.
Their remains have been sent to a lab for testing, according to the police. A
blood sample for DNA testing will be taken from the parents of all the missing
children to determine if the skeletal remains are of any of the 5 missing
children.
Kasur has long been at the centre stage of child abuse in Pakistan, with
several cases surfacing from across the district over the past years.
In January 2018, the body of a minor girl was found from a garbage heap. She
was raped and murdered. The incident had sent shock waves across the country
drawing calls for the arrest of and stern punishment to the perpetrator.
Police arrested Zainab’s murderer, Imran Ali, with the help of DNA testing. He
was subsequently sentenced to death and executed in October, 2018.
However, the recent discovery of the bodies of children has once again reminded
people of the deep-seating problem that needs to be addressed.
(source: samaa.tv)
IRAQ:
Condemned to Death Abroad: The Case of French ISIS Members in Iraq
Iraq reportedly intends to carry out the execution of 7 French nationals who
are currently charged with being members of the Islamic State. The Iraqi
government has denied reports that it would reconsider the imposition of the
death sentences if France pays millions of euros in exchange.
The decision to carry out such executions has been criticized by Agnes
Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary
executions at the Office of the High Commissioner for Human Rights. She has
expressed serious concerns for the situation of the French nationals and has
urged the French government to press for their return home. The death penalty
has been abolished in France, as well as in all other European Union member
countries.
News of these executions generates a series of questions about what obligations
States that abolished the death penalty have when their citizens have been
sentenced to death in a foreign country. This is especially relevant in cases
where capital punishment is imposed without the presence of important
safeguards, such as access to a fair trial, an obligation that is enshrined in
the International Covenant on Civil and Political Rights (Article 6.2), to
which Iraq is a Party.
So far, E.U. Countries, like France and Britain, have repeatedly refused to
repatriate their citizens who joined the Islamic State (or ISIS) in Iraq and
Syria, arguing that they should face trials before domestic Iraqi and Syrian
courts. But do States have an obligation to prevent the execution of their own
nationals abroad, when fair trial guarantees are not ensured?
This dilemma is likely to recur for many European countries whose citizens left
home to fight for the Islamic State. Iraq is, in fact, conducting trials of
thousands of suspected ISIS fighters and ranks among the world’s top
executioners, according to Amnesty International. The presence of foreign
fighters on death row in Iraq is also likely to increase: Among those currently
detained, there are hundreds of foreign nationals from Europe.
France’s possible involvement in the transfer of its citizens to Iraq
The circumstances of the case in question cast serious shadows on France’s
compliance with international law.
It appears that the accused men were arrested by the Syrian Democratic Forces
(SDF) and subsequently transferred to Iraq in February “at the alleged request
of the French Government or with its suspected involvement,” according to
Callamard. Allegedly, the transfer of these individuals from Syria to Iraq
happened after France refused to allow them to return home, an attempt at
avoiding the burden of transferring and trying a number of French individuals
who joined ISIS.
If France’s involvement in the transfer of these men is proven, it would be in
clear violation of its human rights obligations. France abolished the death
penalty in 1981 and it has ratified the Second Optional Protocol to the
International Covenant on Civil and Political Rights aiming at the abolition of
the death penalty (Optional Protocol). France is also a party to the European
Convention on Human Rights and its 6th Protocol Concerning the Abolition of
Death Penalty.
While these instruments merely prohibit the imposition of the death penalty
within the jurisdiction of the State (article 1 of the Optional Protocol, and
article 5 of the European Protocol), consistent jurisprudence from
international tribunals have long established that the extradition of
individuals to a country where it is foreseeable that the death penalty may be
used, violates the right to life of individuals (See, inter alia Judge v.
Canada, Human Rights Committee, para 10.6).
An express prohibition of extraditions towards non-abolishing countries is
found in in Article 11 of the European Convention on Extradition. European law
does not limit its protection to formal extraditions, but it extends this ban
to all acts entailing the removal or expulsion of the individual “to a State
where there is a serious risk that he or she would be subjected to the death
penalty, torture or other inhuman or degrading treatment or punishment,” as
recognised in Article 19.2 of the Charter of Fundamental Rights of the European
Union.
France’s involvement in the transfer of its citizens to Iraq would therefore
constitute a violation of the obligations it took when it ratified these
international treaties.
However, France is claiming that it was not involved in the decision to
transfer the men to Iraq. France’s position, so far, has been to oppose to the
death penalty for them, while at the same time, reiterating its respect for
Iraq’s sovereignty, implying that it would not intervene in judicial
proceedings. As I detail below, in the absence of France’s clear involvement in
the transfer, France’s reaction, which consists of merely issuing a statement,
is in line with its international law obligations.
However, there are other options that France could undertake to assist its own
nationals. International law grants States some powers to intervene, giving
France the chance to do much more than standby and watch its citizens undergo
an unfair trial and be sentenced to death.
The soft powers granted by international law
States powers (and obligations) to assist their citizens abroad are very
blurred. Human rights obligations generally apply within a State’s own
jurisdiction (Art 1 ECHR, art 2.1 ICCPR), while their extraterritorial
application is merely limited to cases when they exercise their control over
another State’s territory or individuals. The protection granted by human
rights treaties is not linked to the nationality of the individuals, meaning
that a person committing a crime abroad, will usually be judged accordingly to
the rules of the State where the crime is committed (or of the State where he
or she is transferred, as in the case of the French ISIS members in Iraq). This
framework ensures the preservation of States’ sovereignty as well as compliance
with the principle of non-interference with the domestic affairs of another
nation.
But, there have been some developments which expand the protection given to
those facing human rights violations in countries abroad.
The 1st major development in international law is the establishment of
Diplomatic Protection, which has been defined by the International Law
Commission (ILC) as: “the invocation by a State, through diplomatic action or
other means of peaceful settlement, of the responsibility of another State for
an injury caused by an internationally wrongful act of that State to a natural
or legal person that is a national of the former State with a view to the
implementation of such responsibility” (Art 1, Draft Articles on Diplomatic
Protection)
The exercise of the right to intervene on behalf of its citizens can be
exercised by the State in a number of ways, such as consular assistance,
diplomatic representations, negotiations, mediation, arbitration, judicial
settlement and severance of diplomatic ties. However, the exercise of the
State’s right to intervene is merely seen as discretionary, meaning that there
are no obligations on States to intervene if their citizens experience a human
rights violation abroad (ICJ, Case concerning the Barcelona Traction, Light and
Power Company (Belgium v. Spain) [1970] ICJ Rep 44, 78). Another weakness of
this institute is that it relates to the commission of internationally wrongful
acts, and, despite the efforts of the ILC Special Rapporteur on Diplomatic
Protection J. Dugard’s, to include a specific provision relating to human
rights violations, the ILC’s final draft articles on Diplomatic Protection
discarded the incorporation of such a provision.
A 2nd avenue is detailed in the Vienna Convention on Consular Relations of 1963
(VCCR), which creates a number of rights for individuals and States who find
themselves in similar circumstances. In cases when foreign nationals are
detained, they are entitled to be informed of their right to consular
assistance and to communicate with their consulate. Moreover, the host State is
obliged to notify the State of origin of the detention, should this be
requested by the individual. Some States even go further and have included a
legislative provision that enshrines the right to consular assistance for their
nationals abroad. (See the case of Germany: Article 7, Consular Law, 11
September 1974).
However, due to the prevailing role played by the principle of non-interference
in the domestic affairs of the receiving State, consular assistance has not
been interpreted to mean the State has the power to intervene in a judicial
process. Moreover, practice shows that States tend to limit their obligation to
consider the request for assistance of the individual, without finding an
obligation to make specific representations on behalf of the individual.
The avenues analyzed so far provide little room for the participation of the
country of origin in the legal proceedings concerning its citizens. As
mentioned, this is a reflection of the traditional understanding of
international law, a body of law which was shaped to safeguard States’
interests, and aspired to avoid any interference in the exercise of States’
sovereignty.
Still, States have demonstrated in some circumstances their will to enforce the
VCCR and the right to consular assistance enshrined in that law. Since 1998,
the International Court of Justice (ICJ) has heard four cases of diplomatic
protection in relation to individual human right violations (Paraguay v United
States of America; Germany v United States of America; Mexico v United States
of America; Republic of Guinea v Democratic Republic of the Congo.)
Interestingly, the last three cases, involved individuals sentenced to death.
Conclusion
The death penalty is the ultimate punishment and denial of human rights. Over
time, the international community, with the notable exception of the United
States in the West, has adopted a moratorium on capital punishment, coming to
recognize its cruel and inhuman nature. However, notwithstanding the abolition
of capital punishment in 106 States, national sovereignty and the principle of
non-interference in domestic affairs still play a prevailing role. This remains
valid in cases relating to the imposition of death sentences to foreign
citizens. Countries of origin are left with few instruments to ensure concrete
safeguards for those who are in the death row, even when there are serious
concerns about the fairness of the trial. However, international law does grant
States with some minimum powers, and allows them to intrude in other State’s
proceedings.
If States are serious about enforcing the abolishment of death penalty, they
must show a genuine commitment and do everything that is in their power to
avoid the execution of their citizens, even those who are responsible for the
most heinous crimes. This means that they must ensure full assistance to them
while they are detained in a foreign country. France’s refusal to assist its
citizens abroad will leave an indelible stain on its record and it is likely to
weaken its credibility as a human rights champion.
(source: justsecurity.org)
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