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The Last Holdouts: Ending the Juvenile Death Penalty

          
          HUMAN
          RIGHTS
          WATCH
          The Last Holdouts
          Ending the Juvenile Death Penalty in Iran,
          Saudi Arabia, Sudan, Pakistan, and Yemen
        
          
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          ISBN: 1-56432-375-7
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          HUMAN
          RIGHTS
          WATC H
          1-56432-375-7
          The Last Holdouts
          Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan,
          Pakistan, and Yemen
          Introduction 1
          The Juvenile Death Penalty in International Law 2
          Moving Backward: The Juvenile Death Penalty in the Arab Human Rights
          Charter 3
          Iran and Saudi Arabia: Laws that Treat Children as Adults 4
          Iranian Legislation and Practice
          The Case of Seyyed Reza Hejazi 6
          Saudi Arabian Legislation and Practice 7
          The Case of Muld bin Husayn bin Abu al-Qasim bin Ali Hakami 8
          Sudan and Pakistan: Legal Loopholes 10
          Sudanese Legislation and Practice 11
          The Case of Kamal Hassan Abd aL-Rahman 12
          Pakistani Legislation and Practice 13
          The Case of Mutaber Khan 15
          Yemen: Barriers to Implementation i6
          Yemeni Legislation and Practice i6
          The Case of Adil Muhammad Saifal-Ma'amari 17
          Recommendations i8
          Acknowledgments 20
          SEPTEMBER 2008
        
          
          Introduction
          The prohibition on the death penalty for crimes committed by juvenile offenders—
          persons under age i8 at the time of the offense—is well established in international
          treaty and customary law. The overwhelming majority of states comply with this
          standard: only five states are known to have executed juvenile offenders since
          January 2005.
          In the recent past even the United States (US), a country which in 2005 had 70
          juvenile offenders on death row, has implemented the ban on the death penalty for
          juvenile offenders: in March 2005 the US Supreme Court ruled the execution of
          juvenile offenders illegal because it violated the US Constitution's ban on cruel and
          unusual punishment. 1
          Yet since January 2005 five other states are known to have executed at least 32
          juvenile offenders: Iran (26), Saudi Arabia (2), Sudan (2), Pakistan (i), and Yemen
          (1).2 Well over one hundred juvenile offenders—and possibly twice that number—are
          believed to be on death row, awaiting the outcome of a judicial appeal, or in some
          murder cases, the outcome of negotiations for pardons in exchange for financial
          compensation.
          Why do a handful of states still execute juvenile offenders when the rest of the world
          has moved toward full implementation of the prohibition of the juvenile death
          penalty? In Iran and Saudi Arabia, the two countries that account for the largest
          number of executions of juvenile offenders, these sentences are the result of
          deliberate state policies to retain the juvenile death penalty, combined with criminal
          “US: Supreme Court Ends Child Executions,” Human Rights Watch news release, March i, 2005,
          http://hrw.org/english/docs/2005/o3/ol/usdomlo23l.htm. Other states have also moved to ban the juvenile death penalty.
          For example, in 1997, China amended its Criminal Code to ban executions of persons under 18 at the time of the crime. Despite
          this advance, in January 2003 China executed Zhao Lin, who was reported to be i6 at the time of the offense, and on March 8,
          2004 executed Gao Pan, who is believed to have been i6 or 17 at the time of the offense. Human Rights Watch has received no
          further evidence of death sentences against juvenile offenders. Criminal Code of China, art. 49; Amnesty International, “Death
          penalty: Executions of child offenders since 1990,” http://www.amnesty.org/en/death -penalty/executions-of-child-offenders-
          since-199o (accessed May 26, 2008).
          2 Known executions of juvenile offenders between January i, 2005 and August 27, 2008, compiled from public sources and
          Human Rights Watch interviews.
          i HUMAN RIGHTS WATCH SEPTEMBER 2008
        
          
          justice systems that fail to provide children with fundamental protections against
          unfair trials.
          In Sudan, Yemen, and Pakistan, laws prohibiting the death penalty for crimes
          committed by persons under age iS are not always implemented. Sudan has yet to
          clarify conflicting legislation for the north and autonomous south, while Pakistan has
          yet to issue regulations needed to implement the ban in all parts of its territory. In all
          three states juvenile offenders are at risk of being treated as adults in capital cases
          when they lack birth registration or other documents to prove their age at the time of
          the crime, when the court of first instance does not record their age, or when they
          lack competent legal assistance at crucial points during arrest and trial.
          The Juvenile Death Penalty in International Law
          The prohibition on the juvenile death penalty is absolute in international and
          customary law, and applies even in times of war. 3 Both the Convention on the Rights
          of the Child, with 193 states parties, and the International Covenant on Civil and
          Political Rights, with i6i states parties, specifically prohibit capital punishment of
          persons under i8 at the time of the offense. 4 In 1994 the UN Human Rights
          Committee stated that it considered the prohibition against executing children to be
          part of international customary law, and thus not open to reservations. 5 Regional
          human rights treaties for Africa, the Americas, and Europe all ban the juvenile death
          penalty in all circumstances. 6
          Geneva convention relative to the Protection of civilian Persons in Time of War, adopted August 12, 1949, 75 U.N.T.S. 287,
          entered into force October 21, 1950, art. 68.
          “convention on the Rights of the child (cRc), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No.
          49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 37(a); International covenant on civil and
          Political Rights (IccPR), adopted December i6, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. i6)at 52, U.N. Doc.
          A/6316 (1966), 9 9 U. N.T.S. 171, entered into force March 23, 1976, art. 6(5).
          Human Rights committee General comment 24, on issues relating to reservations made upon ratification or accession to the
          covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the covenant, UN Doc.
          ccPR/c/21/Rev.1/Add.6, para.8.
          For example, the ban on the juvenile death penalty is absolute in the African charter on the Rights and Welfare of the child,
          and the American convention on Human Rights, while Protocol No. 13 to the convention for the Protection of Human Rights
          and Fundamental Freedoms prohibits the death penalty in all circumstances. African charter on the Rights and Welfare of the
          child, OAU Doc. cAB/LEG/24.9/49 (1990), entered into force November 29, 1999, art. s(s); American convention on Human
          Rights (“Pact of San José, costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered
          into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System,
          OEA/Ser.L.y/II.82 doc.6 rev.i at 25 (1992), art. 4( 5); Protocol No. 13 to the 1950 European convention for the Protection of
          Human Rights and Fundamental Freedoms, E.T.S. 187, entered into force July i, 2003.
          THELASTHOLDOUTS 2
        
          
          Moving Backward: The Juvenile Death Penalty in the Arab Human Rights Charter
          The revised Arab Human Rights Charter, of 2004, 15 unique among regional and
          international treaties addressing the death penalty in that the ban on the juvenile
          death penalty in it is not absolute. The Arab Human Rights Charter postdates all
          other regional human rights treaties, and has been ratified by seven of the 22
          members of the League of Arab States. 7
          Article 7(1) of the 2004 Arab Human Rights Charter states “Sentence of death shall
          not be imposed on persons under i8 years of age, unless otherwise stipulated in the
          laws in force at the time of the commission of the crime.” 8 This substantially
          weakens protections in an earlier version of the charter, adopted in 1994, which had
          stated simply that “The death penalty shall not be inflicted on a person under i8
          years of age.” 9
          In addition to falling short of an absolute ban, Article 7(1) is incompatible with
          international and customary law because it focuses on age at the time of sentencing
          or execution, leaving open the possibility that an individual who commits an offense
          while under age 18 would still be executed after turning i8. In March 2008 members
          of Saudi Arabia's National Commission for Childhood and of the Council of Ministers'
          committee drafting Saudi Arabia's first child law told Human Rights Watch that the
          new law would define a child as anyone under age i8 but that judges could still
          issue death sentences to juvenile offenders and execution would be postponed until
          after the child turned 18.10 Such a law would violate Saudi Arabia's legal obligation to
          prohibit the death penalty—which includes issuing death sentences—for persons
          under age i8 at the time of the offense, regardless of their age at trial, sentencing, or
          execution.
          7 lhey are Algeria, Bahrain, Jordan, the Occupied Palestinian Territories, the Syrian Arab Republic, and the United Arab
          Emirates. League of Arab States, Revised Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Intl Hum. Rts. Rep. 893
          (2005), entered into force March 15, 2008.
          League of Arab States, Revised Arab charter on Human Rights, art. 7(1).
          charter on Human Rights, adopted by the League of Arab States on September i , 1994, reprinted in 18 Hum. Rts. L.J.
          151 (1997), art. 12.
          10 Human Rights Watch interview with Dr. Abd al-Rah man al-Sabih, National Commission for Childhood, and Dr. Khalid bin
          Suliaman al-Obaid, Human Rights Commission, Riyadh, March 11, 2008.
        
          
          Iran and Saudi Arabia: Laws that Treat Children as Adults
          Iran is a state party to both the InternationaL Covenant on CiviL and PoLiticaL Rights
          and the Convention on the Rights of the ChiLd, white Saudi Arabia is a state party to
          the Convention on the Rights of the Child. 11 Despite this, judges in both Iran and
          Saudi Arabia can impose the death penalty in capitaL cases if the defendant has
          attained his or her majority (a concept based on puberty). In some cases these
          determinations are made at the time of triaL, rather than at the time of the offense.
          In 2007 Iran executed at Least 317 peopLe, 12 including eight juveniLe offenders; Saudi
          Arabia executed at Least 158 peopLe, incLuding at Least two juveniLe offenders. 13 At
          the time of writing Iran is known to have executed at Least six juvenile offenders in
          2008, and over i o other juveniLe offenders are under sentence of death. 14
          When acceding to the convention on the Rights of the child on July 13, 1994, Iran stated it “reserves the right not to apply
          any provisions or articles of the convention that are incompatibLe with Islamic Laws and the international legislation in
          effect.” At its 2000 review of Iran's implementation of the convention, the committee on the Rights of the child, which
          monitors the convention's impLementation, expressed concern that the “broad and imprecise nature of the state party's
          general reservation potentially negates many of the convention's provisions and raises concern as to its compatibility with
          the object and purpose of the convention.” concluding Observations of the committee on the Rights of the child: Iran,
          cRc/c/15/Add.123, 28 June 2000, para 7. Saudi Arabia entered a simiLar reservation when it acceded to the c c on January
          26, 1996, entering a reservation “with respect to all such articles as are in conflict with the provisions of Islamic Law.”
          12
          Amnesty International, Death Sentences and Executions in 2007, Al Index: ACT 50/001/2008, April 15, 2008,
          http://www.amnesty.org/en/library/asset/AcT so/oo l/2008/en/b43a1e5a-ffea-11dc-bo92-
          bdbo2o6l7d3d/act5000 l2008eng. html (accessed May 26, 2008).
          13 A third individual, Abdullah bin Mohammed al-Otaibi, executed August 20, 2007, may also have been a juvenile offender.
          See, “Saudi Arabia beheads man convicted of murdering stepmother while minor,” Associated Press, August 20, 2007.
          According to Amnesty International, Saudi Arabia executed at least i58 people in 2007. See “Saudi Arabia: Further
          information on Death PenaLty/Fear of imminent execution,” Amnesty International Urgent Action, Al Index: MDE 23/012/ 2008,
          ApriL 8, 2008, http://www.amnesty.org/en/library/asset/M DE23/o12/2008/en/3f3291c7.o589-lldd-bd68-
          81b1e43od9f9/mde23o l22008eng.html.
          14 Iranian authorities executed juvenile offenders Behnam Zare on August 26, 2008; Sewed Reza Hejazi on August 19, 2008;
          Hassan Mozafari and Rahman Shahidi on July 22, 2008; Mohammad Hassanzadeh on June io, 2008; and Javad Shojai on
          February 26, 2008. See “Iran: Executions of Juvenile Offenders Rising: Iran Executes Sixth JuveniLe Offender This Year, Twenty-
          Sixth Since 2005,” Human Rights Watch news reLease, August 27, 2008,
          http://www.hrw.org/english/docs/2oo8/o8/26/iran19697.htm; “Iran: Spare Four Youths From Execution: Enforce
          International Prohibition on Death Penalty for Juvenile Offenders,” Human Rights Watch joint news release, July 7, 2008,
          http://hrw.org/english/docs/2008/o7/o7/iranl927o.htm; “Iran: End Executions of Juvenile Offenders: 29 Adults and 2
          Juvenile Offenders Hanged,” JuLy 29 2008, Human Rights Watch joint news release, July 29, 2008,
          http://hrw.org/english/docs/2008/o7/29/iran19492.htm.
          THELASTHOLDOIJTS 4
        
          
          Iranian Legislation and Practice
          Iran retains the death penalty for a Large number of offenses, among them cursing
          the Prophet, certain drug offenses, murder, and certain haddcrimes, including
          adultery, incest, rape, fornication, drinking alcohol, “sodomy,” same-sex sexual
          conduct between men without penetration, Lesbianism, “being at enmity with God”
          (niohareb), and “corruption on earth” (mofsedfi/ar4. 15
          Article 4 9 of the Islamic Penal Code exempts children from criminal responsibility.
          However, the article's accompanying note defines a child as someone who has not
          reached the age of puberty (bu/ugh) as stipulated by the Sharia and as specified in
          the 1991 Civil Code as i lunar years for boys and 9 lunar years for girls.1 6
          The majority of juvenile executions in Iran are for haddcrimes or for intentional
          murder. Intentional murder, which includes “cases where the murderer intentionally
          makes an action that is inherently lethal, even if he does not intend to kill the
          victim,” is considered to be a crime punishable by retribution in kind (q/sas e nafs).17
          While the judiciary is responsible for carrying out the trial and implementing the
          sentence in qisas cases, Iranian law treats these cases as private disputes between
          two civil parties, where the state facilitates the resolution of the dispute. The victim's
          survivors retain the right to claim retribution in kind, to pardon the killer, or to accept
          compensation in exchange for giving up the right to claim retribution.
          In July 2006 the Iranian parliament gave an initial reading to a draft Juvenile Crimes
          Investigation Act that officials have said would end executions for juvenile offenders,
          but which actually still leaves judges with discretion to sentence juvenile offenders
          to death. Article 31(3) of the proposed law would allow but not require judges to
          reduce a sentence of death or life imprisonment against juvenile defendants ages i
          15 The vaguely defined crimes of “enmity with God” and “corruption on earth” include but are not limited to “resorting to arms
          to cause terror, fear orto breach public security and freedom,” armed robbery, highway robbery, membership of or support for
          an organization, that seeks to overthrow the Islamic Republic; and plotting to overthrow the Islamic Republic by procuring
          arms for this purpose. Islamic Penal code, arts. 81, 126 133, 183. For a discussion of types of crimes and penalties in Iranian
          law, see Amnesty International, “Iran: The last executioner of children,” MDE 13/ 059/2 007, June 2007,
          http://web.amnesty.org/library/index/engmde 13o592oo7 (accessed May 22, 2008).
          16 Islamic Penal code, art. 4 9; civil code of November 1991, art. 1210. For a discussion of prevailing debates over puberty and
          criminal responsibility in Iran, see the article by Iranian human rights defender Emad Baghi, “The Issue of Executions of
          Under-i8s in Iran,” July 2007, http://www.emadbaghi.com/en/archives/ooo924.php? (accessed May 21, 2008).
          17 Iranian Penal code, arts. 205, 206.
        
          
          to i8 to a term of imprisonment ranging from two to eight years in a juvenile
          correction at facility. In addition, article 33 of the proposed legislation makes clear
          that reduction of sentences in qisasand haddcrimes shall be applied only when the
          judge determines that “the complete mental maturity of the defendant is in doubt.”
          The Case of Seyyed Reza Hejazi
          On August 19, 2008 the Iranian authorities executed Seyyed Reza Hejazi at
          Isfahan Central Prison for his role in a murder committed in 2003, when he
          was i , and thus an adult under Iranian but not intern ational law.1 5 The
          authorities did not notify Hejazi's lawyer 48 hours prior to the execution, as
          required by Iranian law. Instead, his lawyer only learned of the pending
          execution from a journalist the night before, who had heard that Hejazi would
          be executed at 4 am the following morning. Hejazi's lawyer immediately left
          Tehran for Isfahan, and arrived at the prison before the scheduled execution.
          However, prison authorities did not allow him to see his client, and he left the
          prison at in am after prison officials assured him that Hejazi's execution had
          been stayed. However, upon returning to Tehran the lawyer learned that
          authorities had executed Hejazi at ii am.
          Hejazi was tried as an adult by Branch io6 of the Isfahan General Court and
          sentenced to death on November 14, 2005, for his role in a death resulting
          from a September 2003 fight involving several people. According to his
          lawyer, Hejazi alleged that he was attempting to separate a group of his
          friends during a fight when one of them punched him in the face. Hejazi then
          took out a knife and stabbed the man in the chest, and the man later died in
          hospital. Hejazi repeatedly stated that he did not intend to kill the victim.
          Nevertheless the judge did not encourage the victim's family to pardon Hejazi
          or accept compensation forthe killing, and Branch 28 of the National
          Supreme Court upheld the death sentence on June 6, 2006.
          iS Human Rights Watch telephone interview with Mohammad Mostafaei, lawyer, Tehran, August 21, 2008. See also
          Mohammad Mostafaei, “To Defend the Defenseless” (Defa az bidefa), http://mostafaei.blogfa.com/ (last accessed August 26,
          2008); “Iran: Further Information on Fear of Execution,” Amnesty International Urgent Action, Al Index: MDE 13/120/2008,
          August 19, 2008, http://www.amnesty.org/en/library/asset/MDE13/12o/2 oo8/en/o3737b7d-6ea2-lldd-8e5e-
          43ea85d15a69/mde l3 l2o2008en. html (accessed August 22, 2008); email communication from individual familiar with the
          case to Human Rights Watch, March 3, 2008 (name withheld).
          THELASTHOLDOIJT5 6
        
          
          Saudi Arabian Legislation and Practice
          The Saudi government does not publish an official interpretation of Sharia, a written
          penal code, or an interpretative text carrying the force of law of the precise
          definitions of acts that constitute criminal offenses. 19 As a result, judges have broad
          discretion in determining what acts are crimes and setting sentences, and courts
          impose the death penalty for a broad variety of offenses. Capital offenses include
          adultery, apostasy, “corruption on earth,” drug trafficking, sabotage, (political)
          rebellion, and murder during armed robbery. Under interpretations of Sharia
          prevailing in Saudi Arabia, murder and manslaughter are considered to be primarily
          offenses against a private right (qisas). Thus, while courts often impose the death
          penalty for murder or manslaughter, in these qisas cases the deceased's family
          retains the right to insist on execution, accept monetary compensation, or issue a
          pardon. The court can also impose the death penalty as a discretionary punishment
          (ta'zir) for any other actions it deems to be criminal.
          Saudi Arabia has set but does not effectively enforce 12 years as the minimum age of
          criminal responsibility for boys. The minimum age of criminal responsibility does not
          apply in qisas cases, or in cases involving girls. In addition, Saudi Arabia has no law
          specifying when a child of either sex should be treated as an adult in criminal cases,
          and no law requiring judges to assess a child on his or her characteristics at the time
          of the offense nor at the time of trial, sentencing, or execution of sentence.
          In practice, judges base determinations of majority (bu/ugh) in qisas cases on the
          defendant's physical characteristics. According to a 2002 Council of Senior Scholars
          decree, majority in qisas cases is obtained when any one of four conditions are met:
          for males or females, i) attaining 15 years of age; 2) occurrence of wet dreams (a!-
          ibtilam); 3) appearance of pubic hair; or, in the case of girls, 4) upon menstruation. 2 °
          19 For a detailed discussion of Saudi Arabia's criminal justice system, see Human Rights Watch, Precarious Justice:Arbitrary
          Detention and Unfair Trials in the Deficient Criminal Justice System of Saud/Arabia, voL. 20, no. 3(E), March 2008.
          2 oAccording to Minister of Justice ‘Abd ALLah bin Mohammad bin Ibrahim AL aL-Shaikh, under Sharia an individuaL who has
          reached majority (bulugh) can be executed, provided he is of sound mind. Other officials told Human Rights Watch that
          executions could be carried out in qisas cases from age i if the victim's family demanded it, but not until age 18 in other
          capital offenses. Letter from Minister of Justice ‘Abd ALlah bin Mohammad bin Ibrahim Al al-Shaikh to Human Rights
          commission President Turki al-Sudairy, regarding Human Rights Watch's request for clarification on qisas cases involving
          persons under age 18, March 12, 2008; and council of Senior Scholars Decree 209 of January 23, 2002 (9/11/1422), regarding
          specifying an age of majority (bulugh). Human Rights Watch interviews with Dr. Eisa AbdulAziz aL-Shamekh, Human Rights
        
          
          The Case of Muid bin Husayn bin Abu al-Qasim bin ‘AIi Hakami
          Muld bin Husayn bin Abu al-Qasim bin Ali Hakami was executed on July 10,
          2007, for a murder he allegedly committed three years earlier, when he was
          13 years old. 21 According to Hakami's father, the authorities violated Saudi
          Arabian Laws governing investigation, trial, and execution: authorities
          prevented him from attending his son's interrogation, which was held at a
          police station and not a juvenile detention center, did not allow him to attend
          the trial, did not inform him of the execution until days later, and have not
          returned his son's body. 22 As of this writing the Board of Grievances had twice
          postponed hearing the complaint brought by the family against the Ministry
          of Interior's Department of Public Security. 23
          Unlike Iran, Saudi Arabia has only a handful of lawyers specializing in criminal
          defense cases, and much less is known about the number of persons sentenced to
          death for crimes committed while children. 24 Investigations conducted by Saudi
          Arabian journalists suggest that a significant number of children have been or are at
          risk of being sentenced to death. For example, an October 2006 investigation of the
          Jeddah Social Observation Home by Arab Newsthat included interviews with the
          director and detainees reported that 40 of the 220 detainees were boys under age i6
          charged with murder. 25 In November 2005 a/arab/ya.net, the online arm of Saudi
          Arabia's al- Arabiya satellite news station, reported that Saudi Arabia's Ministry of
          Commission board member, Riyadh, March 9, 2008, and Dr. ‘Abd at-Rahman al-Sabih, National Commission for Childhood,
          March ii, 2008.
          21 See “The Qisas Execution of a Perpetrator for Killing a Boy after Trying to Rape Him” (al-QatI Qisasan Ii Janin Hawal FF1 al-
          Fahisha if Sabi wa Qatalahu) al-B/lad newspaper (Jiddah), July 1 1, 2007, http://www.albilad-
          daily.com/files/the_newspaper/11-7-2007/local/main.html (accessed February 7, 2008). Under the shorter lunar calendar
          used in Saudi Arabia, Hakami would have just turned 14 years old at the time of the killing, and i6 at the time of his execution.
          22 Samir Al-Saadi, “Father Seeks Justice for Son's ‘Wrongful' Execution in Jizan,” Arab News, January 30, 2008,
          http://www.arabnews.com/?page=i§ion=o&article=io6 24o&d=3o&m=1&y=2008 (accessed February 7, 2008).
          23 Samir Al-Saadi, “Government Rep. Fails to Show Up for Hakami Case,” Arab News, February 4, 2008,
          http://www.arabnews.com/?page=1§ion=o&article=1o6448&d=4&m=2&y=2008 (accessed February 7, 2008); Samir Al-
          Saadi, “al-Hakami Case Hearing Put Off,” Arab News, April 26, 2008,
          http://www.arabnews.com/?page l§iono&articlelo9327&d26&m4&y2008 (accessed May 26, 2008).
          24 - . - . - -
          At this writing, Human Rights Watch is aware of at least 13 cases where individuals have been sentenced to death for
          crimes committed while children. For a detailed discussion of Saudi Arabia's juvenile justice system, including the juvenile
          death penalty, see Human Rights Watch, Adults Before The/rT/me: Children /n Saud/Arab/a's Cr/m/nal Just/ce System, vol. 20,
          no. 4(E), March 2008, http://www.hrw.org/reports/2oo8/saudicrdo3o8/.
          25 SaeedAl-Abyad, “Helping Troubled Kids Integrate,” ArabNews, October ii, 2006,
          http://www.arabnews. com/?page=1§ion=o&article=88005&d=n&m= lo&y=2006 (accessed May 22, 2008).
          THELASTHOLDOUTS 8
        
          
          SociaL Affairs heLd 126 chiLdren in juvenile detention centers “for committing
          murder.” 26
          26 Hanan al-Zayr, “Dispute over the ‘Age [ according to] Sharia for the Qisas Punishment: 126 ‘ChiLdren' in Saudi Arabia Await
          ‘the Sword” (Jadal hawal ‘al-sinal-shara 'I' lihad al-qisas: 126 ‘tiflan' fi al-sa'udiya yantathirun ‘aL-siyaf'), aI-Arabiya corn,
          November 9, 2005 (7/10/1426). The same investigation noted that “generally chiLdren sentenced to qisas punishment for
          committing murder ... remain in the home [ a juvenile detention center for boys known as a social observation home] until age
          18, which is the age specified for impLementing the punishment on the murderer if [ the murderer] was a male juvenile, whiLe a
          female is placed in the girls' institution until age 21 and sometimes until age 25 if she had not matured by then, and then the
          qisas punishment is implemented.”
        
          
          Sudan and Pakistan: Legal Loopholes
          Sudan and Pakistan are states parties to the Convention on the Rights of the Child;
          Sudan is also a state party to the International Covenant on Civil and Political Rights
          and the African Charter on Human and Peoples' Rights, and Pakistan has signed but
          not yet ratified the coven ant. 27
          Sudan's 2004 Child Law sets reduced sentences for children age 15 to 18 who
          commit capital offenses. However, this law is not consistent with Sudan's 2005
          Interim Constitution, which allows for the death penalty against persons under age
          i8 in qisasand hac/dcases, nor with provisions of the 1991 Penal Code, which allows
          judges to try as adults children over age i who show signs of puberty.
          In July 2000 Pakistan issued a Juvenile Justice System Ordinance banning the death
          penalty for crimes committed by persons under i8, but the ordinance requires
          juvenile courts and other mechanisms not provided for by law in all parts of
          Pakistan, leaving juvenile offenders at risk of trial as adults in capital cases.
          Children's ability to benefit from the Sudanese and Pakistani legislation is further
          limited by low rates of birth registration—64 percent for Sudan and 29.5 percent for
          Pakistan—which make it difficult for juvenile offenders to prove their age at the time
          of the crime. 28
          27 Sudan acceded to the International Covenant on civil and Political Rights on March 18, 1986, and ratified the convention on
          the Rights of the Child on August 3, 1990. Pakistan ratified the Convention on the Rights of the Child on November 12, 1990
          and signed the International Covenant on Civil and Political Rights on April 17, 2008.
          28 Sudan rate is for the period from 1999 to 2006, and is the percentage of children less than five years of age that were
          registered at the moment of the Multiple Indicator Cluster Survey. However, the reliability of MICS surveys in Sudan is
          disputed, and according to at least one estimate birth registration may be closer to 47 percent. See UNICEF, Sudan Statistics,
          http://www.unicef.org/infobycountry/sudan_statistics.htrnl (accessed August 11, 2008); New Sudan Centre for Statistics and
          Evaluation in association with UNICEF, “Towards a Baseline: Best Estimates of Social Indicators for Southern Sudan,” May
          2004,
          http://www.unsudanig.org/docs/Towards%2oA%2o Baselin e%2oBest%2oEstimates%200f%2oSocial%2olndicators%2ofor%
          2oSouthern%2oSudan,%2o2004,%20NSCSE,%2oU NICEF.pdf (accessed September 4, 2008). The Pakistan rate is the result of
          a survey conducted by Plan International in colLaboration with Provincial Governments, in conjunction with a 2005-2007
          government project to improve birth registration. Government of Pakistan, Third and Fourth Consolidated Report to the
          Committee on the Rights of the Child, undated,
          http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C. PAK.4.pdf (accessed August 12, 2008), para. 159.
          THELASTHOLDOUTS 10
        
          
          Sudanese Legislation and Practice
          Under the 2005 Interim National Constitution, applicable in all parts of the country,
          Sudan retains the death penalty for hadd, qisas, and “extremely serious” crimes,
          although it excludes persons under 18 or over 70 years of age from execution in
          cases other than haddand qisas. 29 Under the 1991 Penal Code, applicable in all
          parts of Sudan, haddcrimes punishable by execution include waging war against the
          state, espionage, apostasy, adultery, sodomy, running a place of prostitution, and
          armed robbery resulting in death or rape. 3 ° Intentional murder is a q/sas offense
          punishable by execution, and includes killings resulting from an intentional act that
          was likely to result in death. 31
          The 2004 Child Law applicable in all parts of Sudan states that as a matter of
          principle courts should not sentence children to death, and sets a maximum
          sentence often years' detention in a juvenile reformatory for capital offenses
          committed by persons age i to 18.32 However, the Child Law also specifies that a
          child is someone under age 18, “unless the applicable law stipulates that the child
          has reached maturity.” 33 This raises the possibility that a person under 18 could still
          be sentenced to death under the 1991 Penal Code. Article 9 of the Penal Code links
          criminal responsibility to attaining puberty, and article 3 defines an adult as “a
          person whose puberty has been established by definite natural features and who
          has completed 15 years of age ... [ or] attained i8 years of age ... even if the features
          of puberty do not appear.” 34 The 2004 Child Law also lacks clarity on when children
          over 15 can benefit from the specialized courts and other juvenile justice protections
          created under the 2004 Child Law, and in practice few juvenile courts exist. 35
          29 The Constitution also delays for two years the execution of females who are pregnant or Lactating. Interim National
          Constitution of the Republic of Sudan, Republic of Sudan Gazette, Special Supplement no. 1722, July io, 2005, arts, 3, 36.
          30 PenaL Code of Sudan, arts. 51, 53, 126, 130, 146, 148, i68.
          Penal Code of Sudan, arts. 27, 28, 130.
          32
          Child Law of 2004, arts. 6i(d), 68(i)(a).
          Child Law of 2004, art. 4.
          “ Penal Code of Sudan, arts. 3, 8, 9.
          Article gives juvenile courts jurisdiction over cases involving juvenile offenders (al-affal al-jan/hun, defined in the law as
          children over seven years and under i years at the time of the crime) and cases of children at risk of committing crimes or
          who are victims of violations, which would seem to exclude children overage i . However, article 8 requires criminal courts
          to transfer children's cases to the juvenile court and permits the juvenile court to take appropriate measures. In cases of
        
          
          The 2005 Interim Constitution of Southern Sudan banned the death penalty for
          persons under 18 without resolving the contradiction with the juvenile death penalty
          provision in the Interim National Constitution. 6 The Southern Sudan Legislative
          Assembly has yet to finalize a draft Child Code that would ban the juvenile death
          penalty. 37
          Since 1990, Sudan is known to have executed two juvenile offenders, Mohammed
          Jamal Gesmallah and Imad Ali Abdullah, on August 31, 2oo5. However, Human
          Rights Watch is aware of at least 6 other cases of persons sentenced to death who
          are believed to have been under i8 at the time of the alleged offense. 39
          The Case of Kamal Hassan ‘Abd a/-Rahman
          Kamal Hassan Abd al-Rahman is currently on death row, awaiting the
          outcome of an appeal to the Constitutional Court challenging the
          constitutionality of the death sentence issued against him for a crime
          committed when he was i years old. 4 °
          The Port Sudan Criminal Court sentenced Abd al-Rahman to death for a
          murder committed on March 11, 2004, when he was about i years old.41
          According to his lawyer, the Port Sudan Criminal Court rejected the defense's
          argument at the initial hearing on June 22, 2004 that Abd al-Rahman was i
          years old and should be transferred to a juvenile court, as required by
          children over i at the time of the offense, these measures are limited to placement in a juvenile detention facility, child Law
          of 2004, arts. 4, 55, 58, 68.
          36 Schedule F of the Interim constitution calls for conflicts to be resolved taking into account the sovereignty of the nation
          while accommodating the autonomy of Southern Sudan, the need for norms or standards, the principle of solidarity, and the
          need to human rights and fundamental freedoms. Interim constitution of Southern Sudan, art. 25(2), Schedule F.
          Draft children's Bill for Southern Sudan, 2005, art. 18(a). copy on file with Human Rights Watch.
          38 See “Sudan: Detainees Suffer Arbitrary Arrest, Execution: Sudanese Government Should commute Death Sentences, Grant
          Fair Trials,” Human Rights Watch news release, September 7, 2005,
          http://hrw.org/english/docs/2005/o9/o7/sudanu693.htm.
          These include Mohamed Adam Zarieba, age i6 when sentenced to death on July 31, 2008; Al-Tayeb Abdel Aziz Ishaq, age i6
          when sentenced to death on November io, 2007; Abdelrhman Zakaria Mohamed and Ahmed Abdullah Suleiman, each age i6
          when sentenced to death in May 2007; Kamal Hassan Abd al-Rahman, sentenced to death for a crime committed on March ii,
          2004, when he was 15; and Nagmeldin Abdallah, age i when sentenced to death in May 2003.
          40 Human Rights Watch telephone interview with Ali Agab, Legal Aid Officer, Khartoum center for Human Rights and
          Environmental Development, Khartoum, August 25, 2008.
          41 Appeal to the constitutional court in the case of Kamal HassanAbd al-Rahman, Supreme court case 56/executions/2007.
          THELA STHOLDOUTS 12
        
          
          Sudanese law. Instead, the court determined that the boy was an adult based
          on a doctor's written testimony that the boy showed signs of puberty.
          On August 5, 2006, the High Court returned the case to the Port Sudan
          Criminal Court with instructions that it order a forensic age determination. A
          September 2006 age determination that found Abd al-Rah man to be
          between i8 and 20 years old at the time of the determination. As such, he
          would have been under iS at the time of the crime and should have been
          tried as a juvenile and benefited from a reduced sentence, a factor that the
          court does not appear to have taken into account. The defense also
          submitted testimony that neither of the age determinations used by the court
          were forensic examinations, as the first was based on puberty and the second
          was performed by a dentist and not a forensic panel. However, the judge
          rejected the defense argument, saying that age determination did not require
          special expertise.
          Pakistani Legislation and Practice
          Pakistan retains the death penalty for 26 offenses, including murder, which is
          considered a q/sasoffense, and blasphemy, arms trading, drug trafficking, armed
          robbery, stripping a woman of her clothes in public, extramarital sex, and rape. 42 The
          Juvenile Justice System Ordinance of 2000 bans the death penalty for crimes
          committed by persons under iS at the time of the offense, and requires juvenile
          courts to order a medical examination when a defendant's age is in doubt. 43 The
          ordinance was extended to apply to Azad Jammu and Kashmir in 2003, and to the
          Provincially Administered Tribal Areas and the Federally Administered Tribal Areas in
          late 2oo4. However, implementation remains very limited because many parts of
          42 For a detailed discussion of the death penaLty in Pakistan, see Human Rights Watch Letter to Pakistan's Prime Minister to
          Abolish the Death Penalty, June 17, 2008, http://hrw.org/english/docs/2008/o6/16/pakist l9 l4 l.htm; and FIDH and Human
          Rights commission of Pakistan, “Slow march to the gallows: Death Penalty in Pakistan,” no. 464/2, January 2007,
          http://www.fidh.org/IMG/pdf/Pakistan464angconjointpdm. pdf (accessed May 22, 2008).
          Juvenile Justice System Ordinance, arts. 2(b), 7, 12.
          Fora detailed discussion of the Juvenile Justice System Ordinance, see Amnesty InternationaL, “Pakistan: Protection of
          juveniles in the criminal justice system remains inadequate,” ASA 33/021/2005, October i, 2005,
          http://www.amnesty.org/en/library/asset/ASA33/o2 1/2oo5/en/ dom-ASA33o2l2005en.html (accessed May 25, 2008).
        
          
          the country Lack the courts and other structures called for in the law. 45 In its 2007
          annual report, the Human Rights Commission of Pakistan reported that the
          ordinance “remained un-implemented in most of the country,” noting that Sindh still
          lacked a juvenile court and the government had given no directives for implementing
          the ordinance in the Federally Administered Tribal Areas. 6 Pakistan's Supreme Court
          sometimes rejected death penalty appeals by juvenile offenders when their age was
          not recorded at the time of the original trial. 47
          A 2001 Presidential Commutation Order commuted death sentences against juvenile
          offenders issued prior to December 17, 2001 to life imprisonment, but the order
          excluded juvenile offenders sentenced for qisasor haddcrimes. 8
          Pakistan is known to have executed at least one juvenile offender since 2005,
          Mutabar Khan, executed on June 13, 2006. According to a 2007 joint study by FIDH
          and the Human Rights Commission of Pakistan, as of March 2006, authorities of
          Mach Central Jail acknowledged holding two juvenile offenders sentenced to death,
          one a 14-year-old and one who had been found to be 17 at the time of the offense. 49
          “ In addition, in 2004 the Lahore High court revoked the ordinance, although a February 2005 Supreme court ruling
          reinstated it pending a final ruling. The Supreme court has taken no further action on the case.
          46 Human Rights commission of Pakistan, State of Human Rights in 2007, pp. 167-168, http://hrcp-web.org/-
          2%2ochiLdren. pdf (accessed May 25, 2008).
          ‘ See for example,” Peshawar: Death sentence to juvenile offender upheld,” Dawn Newspaper, Karachi, August 24, 2003,
          http://www.dawn.com/2oo3/o8/25/local33.htm (accessed May 25, 2008), and the Supreme court ruling in the case of
          Rehmatullah alias Raja vs. Home Secretary, Punjab, Lahore, petition no. 1480 of 2004, decided on June, 28, 2004, reproduced
          in Supreme court Monthly Review (ScMR) i86i, vol. XXXVII (2004).
          48 Presidential commutation Decree, Official Gazette of Pakistan, December 13, 2001, art. i(a), as reproduced in Supreme
          court Monthly Review (ScMR) i86i, vol. XXXVII (2004). Under Pakistani law life imprisonment is for a minimum period of i
          years and a maximum period of 25 years.
          The same study also noted that in June 2006, 40 children were reportedly lingering in Sargodha District Jail death cells, but
          did not provide additional information. FIDH and Human Rights commission of Pakistan, “Slow march to the gallows,” p. 38.
          THELASTHOLDOUTS 14
        
          
          The Case of Mutaber Khan
          Pakistani authorities hanged Mutabar Khan in Peshawar Central Prison on
          June 13, 2006. ° A trial court in Swabi had sentenced him to death on October
          6, 1998 for the April 1996 murder of five people. During his appeal he
          provided the court with a school-leaving certificate to support his claim that
          he was i6 at the time of the killings, and argued that authorities knew he was
          a juvenile because they held him in the juvenile wing of the Peshawar Central
          Prison for two years. The Peshawar High Court and the Supreme Court both
          rejected his appeal, on the grounds that the 2001 Presidential Commutation
          Order did not apply because his age had not been recorded at trial.
          50 See FIDH and Human Rights Commission of Pakistan, “SLow march to the galLows,” and “Condemned Prisoner Executed,”
          Dawn Newspaper, Karachi, June 14, 2005, http://www. dawn .com/2006/o6/ 14/nat l6. htm.
        
          
          Yemen: Barriers to Implementation
          Yemen is a state party to the Convention on the Rights of the Child and the
          International Covenant on Civil and Political Rights. 51 Yemen's Penal Code provides
          reduced sentences for crimes committed by persons under iS, including capital
          offenses. Yemen's very low birth registration rate makes it difficult for many juvenile
          offenders to prove their age at the time of the offense, and in these situations courts
          sometimes sentence to death persons under age 18 at the time of the crime. 52 In
          February 2007, Yemen executed Adil Muhammad Saifal-Ma'amari for a crime
          allegedly committed when he was i6. At least 18 other juvenile offenders are
          believed to be on death row. 53
          Yemeni LegisLation and Practice
          Yemen retains the death penalty for a wide variety of offenses, among them murder
          of a Muslim, arson or explosion, endangering transport and communications,
          apostasy, robbery, prostitution, adultery, and homosexuality. 54 In 1994 Yemen
          amended its Penal Code to require reduced sentences for crimes committed by
          persons under 18, including a maximum penalty often years' imprisonment for those
          who commit capital offenses. 55 However, Yemen lacks adequate mechanisms for
          Yemen ratified the convention on the Rights of the child on May i, 1991, and acceded to the International covenant on civil
          and Political Rights on February 9, 1987.
          52 UNICEF's 2006 Multiple Indicator cluster Survey in Yemen found only 22 percent of births of children under age five were
          registered. UNICEF, Mull/pie Indicator Cluster Survey Monitoringthe Situation of Children and women, Yemen 2006, Key
          Findings, (Draft), on file with Human Rights Watch.
          53 UNICEF Yemen say they have been informed by the Ministry of the Interior (Prison Authority) that “no children under i8”
          were currently on death row. However, according to Penal Reform International, officials in Yemen's judiciary stated publicly in
          2007 that there were 18 juveniles on death row, although nongovernmental organizations believe this number does not
          include some cases of children wrongly identified as adults. Nor would it include persons who are now adults but who were
          under i8 at the time of the crime. A Ministry of Interior official confirmed to Human Rights Watch that at least one juvenile
          offender, Walid Haykel, is currently on death row in Sana'a prison for a crime he committed at age i . Email communication to
          Human Rights Watch from Judith Léveillée, chief child protection, HIV and AIDS, UNICEF Yemen, September i, 2008; and
          Human Rights Watch telephone interviews with Tahar Boumedra, Middle East and North Africa regional director, Penal Reform
          International, Amman, August 19, 2008, and Moham mad al-Wadiee, director of the Juvenile Directorate, Prison Authority,
          Ministry of Interior, San&a, September 3, 2008.
          54 Yemeni Penal Code, arts. 124, 141, 226, 227, 228, 234, 249, 259, 263, 264, 280, 306.
          55 Yemeni Penal Code, art. 31.
          THELASTHOLDOUTS 16
        
          
          determining ages of defendants who Lack birth certificates, including adequate
          forensic facilities with staff trained in conducting age determinations. 56
          The Case of Ad ! ] Muhammad Saifa/-Ma'amari
          Since 1993, Yemen is only known to have executed one juvenile offender, Adil
          Muhammad Saifal-Ma'amari, in February 2007. A court in Rawna sentenced
          al-Ma'amari to death on October 19, 2002 for the murder of a relative in an
          argument when he was i6Y Al-Ma'amari alleged that police tortured him until
          he confessed to the murder, and told the court that he was under i8 at the
          time of the murder. Although the judge ordered a medical examination that
          resulted in an October io, 2001 finding that he was under age 17, the court
          nevertheless imposed a death sentence. Al-Ma'amari had no legal assistance
          during the trial.
          The Taiz Court of Appeal rejected al-Ma'amari's appeal on May 23, 2005, and
          the Supreme Court upheld the lower court's sentence on February 27, 2006.
          Human Rights Watch teLephone interview with Tahar Boumedra, Amman, August 19, 2008.
          5T See “Yemen: Death sentence/fear of imminent execution: Adit Muhammad Saif at-Ma'amari,” Amnesty Internationat Urgent
          Action, Al Index: MDE 31/003/2006; and “Yemen: Further information on death sentence/fear of imminent execution: Adit
          Muhammad Saif at-Ma'amari, Amnesty InternationaL Urgent Action, Al Index: MDE 31/018/2007, Septemberi8, 2007,
          http://www.amnesty.org/en/tibrary/asset/MD E31/o18/2007/en/dom-MDE3lol82007en.htmt (accessed May 20, 2008).
        
          
          Recommendations
          Meaningful action by a small handful of states to ban the juvenile death penalty in
          all its forms and to ensure the fundamental rights of children in conflict with the law
          would result in universal adherence with the well-established prohibition against the
          juvenile death penalty.
          Governments in states that have yet to prohibit the juvenile death penalty for
          all crimes should
          i. Enact as a matter of urgency legislation banning the imposition of capital
          punishment or life without parole on persons who were under i8 at the time
          of the crime, without exceptions;
          2. Immediately implement a moratorium on all executions of persons convicted
          of crimes committed before age i8, pending passage of legislation banning
          the juvenile death penalty;
          3. Review all existing death sentences passed on persons who were under i8 at
          the time of the crime, and immediately commute those sentences to custodial
          or other sentences in conformity with international juvenile justice standards.
          Governments in states that have banned the juvenile death penalty should
          i. Ensure that children in conflict with the law have prompt access to legal
          assistance, including assistance in proving their age at the time of an alleged
          offense, and require police, prosecution, and judicial authorities to record the
          ages of children who come before them;
          2. Promote universal birth registration;
          3. Ensure that judicial authorities understand and enforce the ban on the
          juvenile death penalty, including by providing judges and prosecutors with
          training on its application, and by ordering a review of all death sentences
          where there is doubt that the individual was over 18 at the time of the
          offense.
          THELASTHOLDOUTS 18
        
          
          The UN and its member states should
          1. Support the efforts of governments and civil society to ensure the
          fundamental rights of children in conflict with the law, including through
          technical and financial assistance.
          2. Request the UN Secretary-General, with the assistance of the Office of the
          High Commissioner for Human Rights, to submit a report to the 64 th session of
          the General Assembly on compliance with the absolute ban on the juvenile
          death penalty, including information on
          a) the number of juvenile offenders currently sentenced to death, and the
          number executed during the last years;
          b) rates of birth registration;
          c) states' implementation of relevant domestic legislation, including
          mechanisms ensuring juvenile offenders have legal assistance at all
          stages of investigation and trial;
          d) any other obstacles to full implementation of the ban on the juvenile
          death penalty.
          3. Provide the Secretary-General with information on legislation and practice
          relating to the use of the death penalty against juvenile offenders.
        
          
          Acknowledgments
          Clarisa Bencomo, Middle East and North Africa researcher for the Children's Rights
          Division, authored this report, which reflects research conducted in Saudi Arabia in
          March 2008 and November and December 2006; communications with lawyers,
          nongovernmental organizations, and experts on juvenile justice in Iran, Pakistan,
          Sudan, and Yemen between April and September 2008, and a review of legislation,
          court documents, newspaper accounts of trials, and other written sources.
          Jo Becker, advocacy director of the Children's Rights Division; Clive Baldwin, senior
          legal advisor; and Andrew Mawson, deputy program director, edited the report. All
          Dayan Hasan, senior researcher for Pakistan; Christoph Wilcke, senior researcher for
          Saudi Arabia, and Joe Stork, deputy director in the Middle East and North Africa
          Division provided valuable comments on sections of the report. Kennji Kizuka,
          Cassandra Mikicic, Grace Choi, Fitzroy Hepkins, and Jose Martinez provided
          production assistance.
          The Children's Rights Division salutes the courageous efforts of those lawyers,
          judges, and human rights activists in Iran, Saudi Arabia, Pakistan, Sudan, and
          Yemen working to end the juvenile death penalty, too often in the face of
          tremendous pressure to maintain the status quo.
          We acknowledge with gratitude the financial support of the Countess Moira
          Charitable Foundation.
          THELASTHOLDOUTS 20
        
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Death Penalty, Child Rights, Due Process