1er Congrès mondial contre la peine de mort
Strasbourg - 21, 22, 23 juin 2001

Draft Paper - by Lamri Chirouf, Amnesty International
for the 1st World Congress Against the Death Penaty
21-23 June 2001 - Strasbourg

Defying World Trends: Saudi Arabia's extensive use of capital punishment
While the news of the execution of Timothy McVeigh travelled to every corner of the globe with the minute details of how his life was destroyed, the world barely noticed that at least 17 people were put to death in Saudi Arabia during the weeks and days before and after his execution. This brought the number of people executed in Saudi Arabia to at least 57 this year and edged the total over the last decade to about 1,000. These figures force the question of why a country like Saudi Arabia with the population of some 19 million has a yearly average of 100 executions at time when the number of countries which have abolished the death penalty in law or practice has increased to 109 countries. The defiance of this trend is sustained by a mixture of legal, judicial and political factors, whose redress requires a strong political will from the Saudi Arabian government together with a consistent concern and assistance by the international community.
I. Legal and Judicial factors
The extensive use of the death penalty in Saudi Arabia is primarily perpetuated by legal and judicial factors. These include extreme wide range of capital offences, secret and summary criminal judicial process, and practices disadvantageous to foreign workers and women.
1) Wide range of capital offences
The scope for the use of the death penalty in Saudi Arabia is extremely wide both in terms of offences and offenders.
With regard to offences, these are so wide-ranging that it is hard to draw the line between morality and criminality. These offences are regulated by a mixture of Shari'a (Islamic law) rules and government legislated laws, most of which are extremely vague and open to abuse. Shari'a based rules providing for the use of the death penalty are Qisas (retribution), Hudud (fixed punishments), and Ta'zir (discretion in punishment for offences that have no fixed punishment under Hudud or Qisas).
Under Qisas, the death penalty is prescribed for murder, but relatives of the murder victims are invested with the right to decide if the offender should be executed or pardoned with or without compensation, in which case the death penalty is automatically dropped. It should, however, be noted that while all Islamic schools of jurisprudence agree on the death penalty for deliberate murder, they differ on what constitutes deliberate murder and whether quasi deliberate murder should also receive the same punishment or just compensationSee J.N.D Anderson "Homicide in Islamic Law", Bulletin of the School of Oriental and African Studies, London 1951.
.. The death penalty under Hudud is invoked in at least three instances: for married adulterers where the sentence is carried out by stoning, for apostasy, and for highway robbery when the offence results in loss of life according to the majority of Islamic jurists. However, in Saudi Arabia people have been executed under this offence even it did not result in lethal consequences.
Government legislation includes at least two vaguely worded laws, one relating to drug offences based on Fetwa (religious edict) 138 issued by the Council of Senior 'Ulama and approved by the government in March 1987, and the other on sabotage and "corruption on earth" based on Fetwa No. 148 issued in August 1988.
The law on drug offences made the death penalty mandatory for smugglers, importers as well as recidivist distributors.See the Arabic daily al-Jazeera of 11 March 1987
It contains no definition of drugs or limitation of the death penalty to a particular substance.
The law on sabotage and corruption on earth states that the death penalty will be imposed on:
"Anyone proved to have carried out acts of sabotage and corruption on earth which undermines security by aggression against persons and private or public property such as the destruction of homes, mosques, schools, hospitals, factories, bridges, ammunition dumps, water storage tanks, resources of the treasury such as oil pipelines, the highjacking and blowing up of air planes, and so on..."For full text of the Fetwa see for example the Arabic daily al-Jazeera of 30 August 1988.
The provision of the term "corruption on earth" without clear definition leaves the door open for the death penalty to be invoked, even when offences do not result in lethal consequences.
The provision for the death penalty can be extended further under Ta'zir. If an act escapes the net of the death penalty under all the above rules, this can be invoked under Ta'zir on the grounds of the severity of the act or the character of the offender. Examples of this include execution of people for practising magic or witchcraft.
As to offenders, Saudi Arabia does not have unequivocal safeguards preventing the use of the death penalty against any particular categories of society such as children and the mentally ill. Children under the age of 18 are in theory protected from the death penalty because Saudi Arabia is a state party to the Convention on the rights of the child. In practice however, a number of children have been sentenced to death after Saudi Arabia acceded to the convention in 1996. Under Shari's rules, insane persons cannot be held criminally responsible. However, an Indonesian housemaid who is said to be psychologically ill is currently detained on
charges of murder. Amnesty International has been seeking clarification of her legal status and her state of health but has not received any response.
Putting together the range of offences and offenders liable for punishment by the death penalty renders the scope for the use of such punishment as almost limitless.2) Secret and Summary criminal judicial process
A code of criminal procedure is about to be finalised and issued according to announcements by the government. The content of the code is yet to be made public, but according to official sources its main objective is to improve the criminal justice process. Any initiative with such objectives is long overdue as can be shown by a close look at the current practices of arrest, detention, court hearings, evidence, and appeal. The fundamental rights of defendants facing capital punishment are disregarded throughout these stages of the criminal justice process.
Arbitrary arrest and incommunicado detention are common practice in Saudi Arabia. Throughout the period of questioning and investigation, the suspect is denied access to the outside world together with access to legal assistance. ". We don't consider the presence of lawyers a prerequisite for the delivery of justice", stated the Saudi Arabian Embassy in London.See undated booklet issued by the Saudi Arabian Embassy in London entitled " Saudi Arabia: Questions of Human rights", P 6.
At this stage the suspect remains at the mercy of the arresting authorities until a confession is obtained by any means, voluntarily, coercion, torture or deception. The only exception to this was the case of the two British nurses who were accused of murder in 1996 and were allowed access to a lawyer while in police custody. However, even in this case access was granted due to international pressure by the media and diplomatic manoeuvring by the British Foreign office, and not on the basis of the rights of the defendants. In any event, access was only granted after confessions had been obtained from the defendants. Confessions to the police must be ratified by a judge. Once the confession is obtained and ratified the suspect may be transferred to a prison, but without clear explanation of what would await them.For further details see report by Amnesty International, Saudi Arabia: A Justice System Without Justice, AI Index: MDE 23/02/00, 10 May 2000, PP 3-5.
In theory, court hearings should be held publicSee Article 33 of the Statute of the Judiciary of 22 July 1975, but in practice the opposite is true. As a rule, the defendant appears before a judge or judges with a member or members of the arresting authorities or the prosecutor, and often an interpreter in the case of non-Arabic speakers. The only exception to this rule is that in some cases consular representatives or their lawyers have been allowed to attend lower court session as observers or interpreters. No public or journalists are allowed access to hearings. An official statement explained that "...trials in Saudi Arabia are not covered by the press. There is no precedent in our judicial history of journalists being allowed into a courtroom, and the Saudi Government does not intend to change this rule in this case." See statement issued in connection with the trial of two British nurses by the Saudi Arabian Embassy in London, dated 13 June 1997, P 1.
Behind closed doors, defendants, including those charged with capital offences, have to face questioning by the judge or judges without a lawyer or a legal expert. The questioning focuses on the content of the confession obtained by the police and ratified by a judge (who could also be the trial judge) prior to the trial. The hearings can last between minutes and two hours and verdicts can be delivered in one or two sessions. Those sentenced to death are not informed and the case goes automatically to the Court of Cassation for review and then to the Supreme Judicial
Council for approval. The review is not an appeal, it goes to "... the Court of Cassation just to make sure that the judge has paid sufficient attention to the point of objection..."See Salah al-Hejailan, "Legal Developments in Saudi Arabia", in Yearbook of Islamic and Middle Eastern Law 1997-1998, Vol. 4 P 340, Kluwer Law International, London 1998.
The defendant plays no role in this process and may not even know when it takes place or in what form. Similarly, those sentenced to death may not be informed until the day of the execution.3) Practices disadvantageous to foreign nationals and women
In theory the death penalty in Saudi Arabia is applicable to all capital offenders without distinction. However, in practice it disproportionately affects the disadvantaged and the victims of discrimination such as foreign workers and women. More than half of those executed over the last decade were foreign nationals whose community constitutes six millions of the total population of Saudi Arabia. Out of the above-mentioned total of executions 30 were women, again 17 of them foreign nationals.
Saudi Arabia cannot dismiss this as a mere reflection of the responsibility of these segments of society for the problem of mounting crimes. The correlation between the status of these segments of society and the process of imposition and execution of the death penalty can be illustrated by the impact of the criminal justice process and death penalty pardons under Qisas. While the secrecy and summary nature of the criminal judicial process is harsh on everyone who comes into contact with it, this is even harsher for women and foreign nationals, the former for the severe discrimination they are subjected to in society and the latter for being in a foreign land with no relatives to turn to for help together with the language complications. Testimonies obtained over the years by Amnesty International from former prisoners consistently suggest that non-Arabic speakers are made to sign confessions without adequate interpretation facilities or understanding what they sign. Women detainees are invariably interrogated by male officers and tried by male judges and are therefore exposed to intimidation and fear of sexual abuse.
For more details on discrimination against women and judicial disadvantages see Amnesty International's report "Gross Human rights abuses against women", AI Index: MDE 23/57/00, September 2000.

As to pardons, under Qisas's reconciliation process, this can be illustrated by examining the nationality of the beneficiaries since 2000, which total at least 16. Fifteen of these former prisoners were Saudi Arabian nationals. The remaining case related to a Yemeni national who was convicted for murdering another Yemeni relative of his. The pardon in this case was a result of family reconciliation. As to the 15 cases of Saudi Arabian nationals, one pardon was secured because of strong friendship between the family of the offender and the family of the victim, while the other 14 were a result of reconciliation following interventions by the King, royal ministers or local dignitaries and tribal leaders. In some cases the pardons were secured only minutes before the executions were due to be carried out. During this same period at least 96 Saudi Arabian nationals and 84 foreign nationals were executed which illustrates the stark difference between pardons and executions in relation to nationality: almost one pardon for every six executed Saudi Arabian nationals, and one pardon for every 84 executed foreign nationals. Without family, a tribal base or money, foreign workers chances of receiving pardon under Qisas after being sentenced to death is extremely slim.

II. Political factors
The above legal and judicial reality are cemented further by state policy of harsher penalties and strict prohibition of political or religious dissent.1) Harsh penal policy and judges' discretionary power
Saudi Arabia's penal policy puts great emphasis on severe punishments as a key solution to the problem of crimes, and this policy is facilitated by wide discretionary powers enjoyed by judges. This partly explains the wide scope given to the use of the death penalty. The law on sabotage and "corruption on earth" and the law on drugs are a clear illustration of this policy.
The law on drugs was introduced in response to mounting drug problems in the country. It has since resulted in the execution of at least 355 people and there is no evidence that the rate of crime has dropped. Similarly the law on sabotage and corruption on earth was introduced in response to mounting political opposition activities which in some instances resulted in violent activities.
Judges' role in facilitating this policy derives from their peculiar status in the criminal justice system. On the one hand they have considerable leeway in the categorization of offences and in deciding the punishment particularly under Ta'zir, and on the other, they are under the direct control and influence of the executive branch of the government.
Their discretionary power over categorization of offences and punishments stems from the absence of clearly defined codes of such offences and punishments together with nature of the rules of evidence, particularly confessions.
In categorizing offences and deciding punishments, judges are guided mainly by vague laws and general principles of Islamic jurisprudence on crimes and punishments which are subject to different interpretations by different Islamic jurists. For example, it is up to the judge to decide what constitutes apostasy. Abd al-Karim Mal al Allah, a Shi'a Muslim, was found guilty of apostasy and executed in 1992. It has been reported that he was told by the judge "abandon your rejectionist beliefs or I will kill you".
Under Qisas the death penalty is primarily imposed for intentional killing, but how to prove such intention is subject to deferent opinions by Islamic jurists. Media coverage in Saudi Arabia of prisoners pardoned by relatives of their murder victims show that the offence in some of such cases was manslaughter and not a deliberate killing.
Judges are also free to navigate between Hudud and Ta'zir. For example theft, which has fixed punishment under Hadd by amputation, can also be punished by death under Ta'zir if the judge decides that the offence deserves harsher sentence. "It is part of the completeness to pass a harsher sentence ...for offences which generate harm." said a statement issued by the Ministry of Interior quoting a court judgement and announcing the execution of two people convicted of robbing a bank in Riyadh. The robbery did not result in any lethal consequences and most of what was
stolen was recuperatedSee the Arabic daily al-Sharq al-Awsat 10 August 1985.
.. Similarly, under Ta'zir, judges have a free hand in deciding the punishment. Apart from the death penalty, judges can impose as many lashes as they see fit, while under Hudud this is limited to 100 lashes for sexual offences by non-married persons.
Further, under Ta'zir, judges enjoy more freedom with regard to rules of evidence than they do under Hudud. According to Judge Dr. Riyad bin Abdulatif bin Abdulmuhsin al-Mahideb, confession "...is the master of evidence and the decisive factor for ending the conflict before the judge...once the accused confesses to the crime it is proved against him and he receives the punishment he deserves..."See "Means of evidence for criminal suit in Shari'a", by Judge Dr Riyad bin Abdulatif in Abdulmuhsin al-Mahideb, 1 September 1997, Industrial City of Jubail, Kingdom of Saudi Arabia, P 7.
Under Hudud, if the defendant withdraws a confession at any point in the judicial process, this throws the confession into doubt and the judge cannot apply the Hudd punishment. Such strict rules are not applicable in the case of Ta'zir or QisasIbid.p.9
.. This discretionary power is further cemented by the secrecy of court proceedings which protects judges from any legal challenges by criminal defence lawyers. Government penal policy and judges discretionary powers have complementary roles in the extensive use of the death penalty.2) The death penalty is not for debating
People in Saudi Arabia cheer if a prisoner is executed and the same people would cheer if the same prisoner is pardoned. The media does the same thing by portraying on the same pages the executed as a scum and the pardoned as a human being who had made a mistake, together with the pardoner as a top example of humanity, forgiveness and compassion. There does not seem to be anything in between to galvanise these two extreme emotional experiences into a rational debate on the death penalty per se or even the process by which it is imposed.
The absence of a debate on the death penalty per se cannot be attributed to Islam or Shari'a rules, because the works of Muslim jurists are full of interesting debates on crimes and punishments, including the death penalty, and this is reflected in the diversity of penal policies and practices in different Muslim countries. In Saudi Arabia the real reason for the absence of any debate on the death penalty is the death penalty itself, because anyone other than the state taking this initiative will without doubt be categorised as apostate or as "corrupt on earth". This is so because religion and politics are the ownership of the state. Dissent, be it religious or political, can easily be seen as "corruption on earth" or a deed harmful to the unity of the nation. Both of these laws can be categorized as capital offences. This is why Saudi Arabia has no political parties, trade unions or even a bar association. Given this and the government harsh penal policy which is wrapped up in the flag of religion, a debate on the death penalty seems a distant aim.
The situation is different with regard to the process by which the death penalty is dished out. Encouraging signs are beginning to emerge both externally and internally. Externally, the international community is beginning to take note of how criminal justice is arbitrarily meted out in Saudi Arabia. Internally, over the last 12 months the country has witnessed a debate on human rights issues unprecedented in its history. It covered topics such as the criminal justice system, women and foreign workers rights, and government relations with international human rights NGOs.
Similarly, the government has recently announced, in addition to the code of criminal procedures, the enactment of a law to regulate the legal profession. If the contents of these two legal initiative are consistent with international standards for fair trial and the standards for lawyers safeguards this will provide a valuable basis for the work on the death penalty. If it results in guaranteeing the right of defence by expert lawyers during court hearings this measure alone will without a doubt impact positively at least on the number of executions. It is worth referring here to the submission by the lawyers who defended the British nurses. It contained a scrutiny of inconsistencies in the confessions obtained by the police and warned of the risks of miscarriage of justice referring to such cases in the early history of Islam.See "Saudi Arabia: Defence submission by Salah Ibrahim al-Hejailan in the case of Lucille McLauchlan and Deborah Kim Parry," Yearbook of Islamic and Middle Eastern Law 1996, Vol. 3, Kluwer Law International, London 1996.
Criminal courts are deprived of such valuable challenges to evidence produced by police and prosecution. The use of lawyers in the case of the British nurses was an unprecedented one-off case, but it is an example which illustrates that, under Saudi Arabia's current political circumstances, debates on the death penalty in the courtroom is the most premising start for a debate on the subject in the country.III. What should be done?
It is clear that the way the death penalty is used in Saudi Arabia is unacceptable by any moral or legal standards. This situation is perpetuated by a penal policy that has been expanding the scope of this punishment in defiance of the progressive restriction called for in this respect by the international communityUN General Assembly resolution 32/61 of 8 December 1977 and UN Commission of Human rights resolution 1999/61. to the point
where the line between moral and criminal behaviour for which capital punishment is used has become extremely thin. It is also perpetuated by the secrecy which underpins the criminal justice with total disregard for the most basic fundamental rights of fair trial, together with the United Nations specific safeguards for prisoners facing capital punishment. These two factors are the key for redress, and the introduction of a code of criminal procedure and the law to regulate the legal profession could be a welcome start in this regard but will not be sufficient. Saudi Arabia should declare a moratorium on executions as called before by the UN and take the following steps:
1. Ensure with immediate effect implementation of the UN safeguards for prisoners charged with capital offence which guarantee adequate opportunity for defence, appeal and prohibits imposition of the death penalty when there is room for alternative interpretation of the evidence as required by ECOSOC resolution 1984/50 of 25 May 1984;
2. Review the vague laws on crime and punishments with aim of restricting judges' discretion in the use of the death penalty and ensuring that this punishment is not prescribed for non-violent offences taking into account Resolution 1999/61 adopted by the UN Commission on Human Rights on 28 April 1999.
3. Review the cases of all prisoners currently under sentence of death with aim of commuting the death sentence or offering them a retrial in light of points (1) and (2) above;
4. Issue unequivocal law prohibiting the use of the death penalty against children and the mentally ill in accordance with the Convention on the right of the child and the ECOSOC resolution 1989/64, adopted on 24 May 1989, recommending the elimination of the death penalty for the mentally ill;
5. Invite the UN Special Rapporteur on extrajudicial, summary or arbitrary executions to visit Saudi Arabia
6. Set up a commission to study the disadvantages faced by foreign nationals and women facing capital punishment with aim of stopping such practices;
The responsibility for bringing these changes about rests with the Saudi Arabian government. It is also the duty of the international community to ensure that Saudi Arabia fulfils its international human rights obligations relating to the use of the death penalty.Endnotes
1. See J.N.D Anderson "Homicide in Islamic Law", Bulletin of the School of Oriental and African Studies, London 1951.
2.See the Arabic daily al-Jazeera of 11 March 1987
3.For full text of the Fetwa see for example the Arabic daily al-Jazeera of 30 August 1988.
4.See undated booklet issued by the Saudi Arabian Embassy in London entitled "Saudi Arabia: Questions of Human rights", P 6.
5.For further details see report by Amnesty International, Saudi Arabia: A Justice System Without Justice, AI Index: MDE 23/02/00, 10 May 2000, PP 3-5.
6.See Article 33 of the Statute of the Judiciary of 22 July 1975
7.See statement issued in connection with the trial of two British nurses by the Saudi Arabian Embassy in London, dated 13 June 1997, P 1.
8.See Salah al-Hejailan, "Legal Developments in Saudi Arabia", in Yearbook of Islamic and Middle Eastern Law 1997-1998, Vol. 4 P 340, Kluwer Law International, London 1998.
9.For more details on discrimination against women and judicial disadvantages see Amnesty International's report "Gross Human rights abuses against women", AI Index: MDE 23/57/00, September 2000.
10.See the Arabic daily al-Sharq al-Awsat 10 August 1985
11.See "Means of evidence for criminal suit in Shari'a", by Judge Dr Riyad bin Abdulatif in Abdulmuhsin al-Mahideb, 1 September 1997, Industrial City of Jubail, Kingdom of Saudi Arabia, P 7.
12.Ibid.p.9
13.See "Saudi Arabia: Defence submission by Salah Ibrahim al-Hejailan in the case of Lucille McLauchlan and Deborah Kim Parry," Yearbook of Islamic and Middle Eastern Law 1996, Vol. 3, Kluwer Law International, London 1996.
14.UN General Assembly resolution 32/61 of 8 December 1977 and UN Commission of Human rights resolution 1999/61.