[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

July 7




IRAQ:

The Iraqi judges fighting to reform the system from within----After heavy 
criticism of trials of suspected Islamic State members, judges tell MEE about 
the difficulties they face and how they are trying to improve the situation



Last month's decision by a Baghdad court to sentence to death 2 more French 
nationals for belonging to the Islamic State group (IS), leaving all 11 
Frenchmen transferred from Syria facing the gallows, has again brought 
international attention to Iraq's judicial system.

Iraq has also tried thousands of its own nationals arrested on home soil for 
joining IS, including women, and begun trial proceedings for nearly 900 Iraqis 
repatriated from Syria.

The country remains in the top 5 "executioner" nations in the world, according 
to an Amnesty International report in April.

The number of death sentences issued by Iraqi courts more than quadrupled 
between 2017 and 2018, to at least 271.

But only 52 were actually carried out in 2018, according to Amnesty, compared 
with 125 the year before.

Judges in Mosul and Baghdad have repeatedly come under attack over their 
rulings, from so-called 10-minute trials to long prison sentences for the wives 
of IS members.

While it is undeniable that many flaws persist in a mostly corrupt and 
excessively bureaucratic system, improvements and attempts to reform the 
process also need to be acknowledged.

Several judges have spoken out against the country's counter-terrorism laws, 
especially the use of the death penalty, and some have travelled to the 
International Criminal Court in The Hague to gain valuable knowledge.

The Babylonian code of law

On a small shelf beside his desk, Salem Nuri, chief judge of the Appeal Court 
in Mosul and one of the judges trying to make a change, keeps a small sculpture 
of the Code of Hammurabi, the Babylonian code of law of Ancient Mesopotamia.

"This is the history of Iraq," he told Middle East Eye, taking it from the 
shelf and placing it on the stack of papers on his desk.

"The first codes of law in the world were born in this land. We believe in 
justice and the rule of law, and this is why judges in Mosul were the first 
target of the Islamic State in 2014 and before.

"We are now trying to work to restore our society."

Nuri left the city in 2014, together with his family, and moved to Erbil, the 
capital of the Kurdistan Regional Government.

The Iraqi army retook Mosul in 2017, after a nearly 9-month-long offensive 
against IS.

Nuri's house was bombed and destroyed, along with it "all its memories," during 
the battle for Mosul.

Today, he can work again in his city, but every afternoon after finishing work 
he travels Erbil

This is something Chief Investigative Judge Raed al-Maslah, another reforming 
judge, cannot do.

Maslah's family is in Baghdad, and every night he sleeps in a small room next 
to the office of the Special Court for Terrorism Cases in Tal Kayf, Nineveh's 
counter-terrorism court, 12km north of Mosul.

"I have to read all the files of the cases," he said, pointing to piles of 
papers.

"I have to see the newly arrested, to check the procedures. I go to visit some 
prisoners. But also for some security reasons, I don't move too much. Only 
every 40 days I travel to visit my family for a weekend."

'10-minute trials'

Following the battle for Mosul and the "defeat" of IS, Iraq's criminal justice 
system had to carry a heavy burden, having to investigate and prosecute the 
large numbers of IS detainees.

It quickly became the target of criticism from international human rights 
organisations for flaws in the trial of suspected IS members.

Human Rights Watch (HRW) documented and denounced harsh sentences given to 
several hundred people, including death sentences handed out under the number 
13 counter-terrorism law of 2005.

So-called 10-minute trials by the Central Criminal Court in Rusafa, Baghdad - 
where critics said defendants were briskly dealt with without due procedure - 
especially drew the ire of the international media last year.

What went largely unnoticed were the investigations behind these hearings.

Recently, a HRW report recorded improvements in the procedures, detailing the 
work done in Tal Kayf, mostly under the guidance of Maslah.

"Our investigation work is based on documentary evidence and not only on 
confessions: we have witnesses' accounts of victims and survivors, but also 
videos, social media and forensic materials, and all the kinds of evidence 
supporting the investigation," Maslah told MEE.

"The media sometimes ruins our investigative work. On the contrary, we need 
international support because terrorism is a danger for all the countries in 
the world."

David Marshall, a former team leader of the accountability and administration 
of justice section of the United Nations Assistance Mission for Iraq (UNAMI), 
told MEE last November that merely criticising the Iraqi justice system was "a 
little bit unfair".

Marshall has assisted many court sessions in Kharkh, Baghdad, where the process 
was significantly more professional than in Rusafa, he noted.

"Investigation files are thick. The 10-minute trials are the final hearings 
which summarised months of fact-finding and investigation that consists of 
numerous sessions," he told MEE.

Support from The Hague

Last July, Maslah took part in a pilot training scheme for Iraq at the 
International Criminal Court in The Hague, the Netherlands, supported by United 
Nations Office on Drugs and Crime (Terrorism Prevention Branch).

The topic of the workshop was: "The Accountability of ISIL/Daesh in Iraq: 
Collection of Evidence, Trials and International Cooperation."

Maslah contributed together with the president of the Higher Judicial Council, 
Chief Judge Faeq Zeidan, to explain the challenges of the investigations, the 
collection of evidence, and the workings of the trials.

"We need an alliance to combat IS: we call on the countries in the world to 
share all the information, and if they don't want to judge the foreign fighters 
in their countries of origins, we will judge them here. This is necessary to 
do," Maslah said.

Gathering Iraqi judges in The Hague with practitioners from the international 
criminal tribunals allowed them to share their experiences as well as 
highlighting the international dimension of criminal trials taking place in The 
Hague.

In May last year, the UN Secretary-General Antonio Guterres appointed Karim 
Asad Khan as special adviser and head of an investigative team to support 
domestic Iraqi efforts to hold IS accountable for its actions.

The position arose out of a resolution passed in 2017 calling on the creation 
of such a team "to support domestic efforts to hold IS accountable by 
collecting, preserving and storing evidence in Iraq of acts that may amount to 
war crimes, crimes against humanity and genocide committed by the terrorist 
group".

Khan, an international criminal and human rights lawyer, is currently working 
in collaboration with the Iraqi government and courts with a 2-year mandate.

Counterterrorism law criticised

"But the problem is the [counter-terrorism] law of 2005," defence lawyer Firas 
al-Khazali told MEE, referring to law number 13.

"According to this law, every person accused of having a role – either a major 
or minor role - in a terrorist organisation is guilty and can be sentenced to a 
life sentence [20 years in Iraq] or death sentence.

"Iraqi judges and lawyers feel under pressure and are under threat because if 
they defend or forgive an accused, they might be considered IS supporters. We 
need first to reform the law."

Another judge in Baghdad, who asked not to be named, also told MEE about his 
discomfort with the Iraqi counter-terrorism law.

"I am against the death penalty, but sometimes according to the evidence 
collected during the investigations and so following the law, I have to 
sentence some accused to death.

"This doesn't belong to my being; it doesn't belong to my culture."

The same judge told MEE that in some cases he understood from the hearings that 
some women had nothing to do with IS and so he had ordered their release.

But then the cases were re-appealed, and he had to sentence them just for the 
affiliation to their husbands' organisation.

Same old faces

Iraqi judges and prosecutors are well experienced with terrorism-related cases 
to the point that they sometimes recognise some accused from previous trials.

"Many of the Camp Speicher massacre's criminals escaped from Abu Ghraib prison 
in 2013," Jawwad Hussein, previously an investigation judge, now appointed as 
criminal judge in Rusafa, told MEE.

"They found shelter in the desert in Anbar, and then they moved to all the 
provinces when IS took power.

"I know them personally, I already condemned some of them in 2010.

"Many others were in the local prison in the Salah al-Din province, I was 
dealing with their cases.

"They escaped on 10 June 2014 and in order to prove their loyalty to Daesh, 
they were ordered to participate in the mass killing of Speicher cadets two 
days later," he revealed, using the Arabic acronym for IS.

On 12 June 2014, IS killed around 1,700 Shia Iraqi air force cadets in an 
attack on Camp Speicher in Tikrit.

Mistaken identity

According to the law, the accused have the right to defend themselves, and a 
fair trial has to be guaranteed, but the accused often declare to have 
confessed their crimes under torture.

Defence lawyer Nour Khaled, who has dealt with terrorism cases for the past 
five years, told MEE: "I gained the trust of the families and so they call me.

"I take the cases when I am sure that the accused is innocent and he is 
unfairly in jail.

"I have to provide a medical report to prove that my client was tortured to 
confess crimes he never committed."

One of her clients, who talked to MEE after a court session and asked not to 
mention his name, was a former football player.

"I am accused of having put a hand grenade in an army car, but I am innocent," 
he said.

The lawyer said he is probably a victim of mistaken identity.

"We have many similar names in Iraq, and many innocent men are in jail for this 
reason," Firas al-Khazali said.

"Another problem is the secret informants. Some are working for the security 
services, some others are simply citizens who can accuse a neighbour for his or 
her own interests."

'Better to see a guilty man free than an innocent one in jail'

In investigations, all the information and declarations to find the truth have 
to be checked.

The judge should also open investigations on alleged cases of torture, but it 
rarely happens.

Khaled al-Mashadani, the chief judge of appeal in Kharkh, Baghdad, still has 
trust in the judges' work.

"I worked in Anbar from 2006 on, working on al-Qaeda crimes, I know their 
styles and methods, but it's very hard to judge all these cases," said 
Mashadani.

"In the difficulties or uncertainty, we will go on every day to condemn or set 
free a man, or a woman, in this country,” he told MEE.

"The principle we follow is written in a hadith [the sayings of the Prophet 
Mohammad], whose meaning is: 'It is better to see a guilty man free than an 
innocent one in jail,'" he said.

(source: middleeasteye.net)








SRI LANKA:

Lost in Translation?



When President Sirisena announced his intention to hang the convicted drug 
offenders lingering in the death cells of Welikada prison, he was congratulated 
by President Duterte of the Philippines.When he returned from a recent visit to 
the Philippines, President Sirisena publicly expressed his admiration for the 
manner in which President Duterte was dealing with drug offenders in that 
country. The 2 presidents appear to have misunderstood each other. The death 
penalty was abolished in the Philippines in 1987, and President Duterte’s 
method of dealing with the drug problem has been to order the police to kill 
suspected drug dealers and drug users. Thousands are reported to have been 
murdered in their homes and on the streets. Duterte once claimed with pride 
that he himself had killed 1 or 2. Sirisena does not appear to be aware of the 
pariah status that Duterte has earned for himself within the international 
community.

President Sirisena has reportedly signed four death warrants requiring the 
prison authorities to kill 1 woman and 3 men by hanging them by their necks 
until they are dead. It is not known how these four people were singled out, 
and by whom. It was earlier reported that the President had identified 19 
prisoners from among those convicted and sentenced to death as those who had 
been indulging in the drug trade from within the prison premises.That, of 
course, cannot be the basis for signing a death warrant. None of them have yet 
been indicted or convicted of the offence of drug trafficking from within 
prison premises. A prisoner has first to be charged with that offence, 
convicted and sentenced to death by a court, had his appeal dismissed, and then 
been recommended for execution by the Minister of Justice before the President 
can sign his or her death warrant. Any other course of action would constitute 
extra-judicial murder.

The legislative history

The death penalty was suspended in 1956 by an Act of Parliament on the 
initiative of Senator M.W.H. de Silva, K.C., Minister of Justice in 
S.W.R.D.Bandaranaike’s government. In an emotion-driven decision, it was 
hurriedly restored through a flawed emergency regulation following the 
assassination of Bandaranaike in 1959. In 1976, when I was Permanent Secretary 
to the Ministry of Justice, a policy decision was reached to suspend judicial 
executions. Consequently, on May 22 1977, the 5th anniversary of the Republic, 
President Gopallawacommuted the sentences of everyone on death row: 144 men and 
3 women. Thereafter, President Jayewardene and his successors in office, 
Presidents Premadasa, Wijetunge, Kumaratunga and Rajapaksa, commuted every 
sentence of death.

The constitutional obligation

Then, as now, the Constitution prescribed the procedure to be followed when an 
accused person was sentenced to death by a trial court. Article 34 of our 
present Constitution states, following the imposition of such sentence, the 
President shall cause a report to be made to him by the trial Judge.

He shall forward such report to the Attorney General for his advice. 
Thereafter, the President shall send both reports to the Minister of Justice 
who will make the final recommendation whether the sentence should be carried 
out or whether it should be commuted to life imprisonment. When the President 
acts on that advice, and makes the appropriate order, the case is closed. The 
death sentence cannot be reinstated.

The procedure followed when Felix Dias Bandaranaike was Minister of Justice was 
prescribed in a Ministry standing order. If either the trial Judge or the 
Attorney General had recommended that the sentence should not be carried out, 
the Minister advised that the sentence be commuted to one of life imprisonment. 
If the trial Judge and the Attorney General had both recommended that the 
sentence be carried out, a senior assistant secretary examined the case record 
and the investigation notes for 1 of 3 elements: (i) evidence of premeditation 
(ii) excessive cruelty in the commission of the murder (iii) any other material 
that “shocks the conscience”. If one of these elements was present, the 
Minister advised the President to let the law take its course.

The Prime Minister has declared that his political party is opposed to the 
death penalty. Therefore, if the Minister of Justice had, in performing her 
constitutional duty, followed the policy adopted by her predecessors for 43 
years, and advised that every death sentence be commuted to life imprisonment, 
there would be no prisoners today under sentence of death. They would be 
serving life sentences. A prisoner serving a life sentence cannot now be 
hanged. On the other hand, if there are prisoners still lingering in death row, 
it means that the reporting procedure in respect of them, as required by the 
Constitution, has not yet been performed, and they cannot therefore be hanged.

It is, of course, possible that the Minister of Justice had, in defiance of her 
party policy, and in order to accommodate the President’s publicly declared 
wish to have at least a few human beings hanged before his term of office ends 
this year, recommended execution.

If that be the case, the Minister’s recommendation will surely be challenged in 
court as having been influenced by irrelevant considerations. The Minister 
would not have brought to bear her own independent judgment as required by the 
Constitution but would instead have been influenced by the President’s publicly 
declared desire.”

Empirical evidence

There is now an international commitment to abolish the death penalty. This is 
not only because of the desire to respect the dignity of the human being and 
the sanctity of human life, but also because the global empirical evidence 
demonstrates beyond any shadow of doubt that the death penalty does not serve 
as a deterrent. The most effective deterrent to crime is the certainty of 
detection. Competent policing, efficient prosecution, and expeditious trial– 
none of which are evident in Sri Lanka today – should be the primary objective 
of the Government. If, in the absence of such deterrent, an individual proceeds 
to a life of crime, the progress that humanity has made through the centuries 
now demands that that individual be afforded an opportunity for rehabilitation, 
for reform, for repentance, for hope, for spiritualty, so that one day he or 
she may be able to enjoy those fundamental rights and freedoms which others 
outside the prison walls enjoy, but which are only possible if his or her right 
to life is not extinguished.

The international consensus

The Second Optional Protocol to the International Covenant on Civil and 
Political Rights requires that no one shall be executed and that each State 
shall take all necessary measures to abolish the death penalty within its 
jurisdiction. In 1983, the Council of Europe abolished the death penalty in 
peacetime, and in 2002 abolished the death penalty in all circumstances, 
including wartime.

Similar instruments have been adopted by the states parties to the American 
Convention on Human Rights. In 2014, the African Commission on Human and 
People’s Rights developed a protocol on the abolition of the death penalty. 
More than 160 of the 193 member-states of the United Nations have abolished the 
death penalty or introduced a moratorium, either in law or in practice.They 
include all the countries of Europe including Russia, nearly all the countries 
of Africa, and all the countries of South and Central America and Canada, as 
well as Australia, New Zealand and much of the Pacific and the Caribbean.

Violation of a fundamental right

Article 11 of the Constitution states that “No person shall be subjected to 
torture or to cruel, inhuman or degrading treatment or punishment”. There is 
now a considerable body of international jurisprudence on the interpretation of 
this Article. For example, the Constitutional Court of South Africa has held 
that the death penalty is a “cruel punishment”.

The Court of Appeal of Tanzania has held the death sentence to be both “cruel 
and degrading punishment”. In Canada, 3 Judges of the Supreme Court expressed 
the view that capital punishment per se constituted “cruel and unusual 
punishment”:“The death penalty not only deprives the prisoner of all vestiges 
of human dignity. It is the ultimate desecration of the individual as a human 
being”. The Judicial Committee of the Privy Council is among several courts 
which have held that the mandatory sentence of death, based solely upon the 
category of crime (e.g. drug related offences in Sri Lanka), without regard to 
the o?ender’s personal circumstances or the circumstances of the particular 
o?ence, constitutes “cruel, inhuman or degrading treatment or punishment”.

Breaking the 43-year moratorium

If Sri Lanka now breaks its 43-year moratorium on executions, it is inevitable 
that economic concessions granted by the European Union including GSP+ will be 
withdrawn. Assistance from abroad in the investigation of crime will not be 
forthcoming.

Requests by Sri Lanka for the extradition of persons awaiting trial or already 
tried and convicted will probably be refused by other States because of the 
unpredictability of the sentencing policy of the Government.

It was only a few months ago that President Sirisena, in elaborate island-wide 
ceremonies, proclaimed the Tripitaka as a national heritage, and called upon 
the international community to inscribe it on the UNESCO Memory of the World 
Register. Many beyond our shores who truly and faithfully adhere to the 
philosophy of life based upon tolerance and compassion as expounded by the 
Buddha will now stand aghast as the only country in the world whose 
Constitution requires the State “to protect and foster the Buddha Sasana” 
addresses four human beings confined in a prison cell and tells each of them: 
“You are beyond the pale of humanity.You are not fit to live among humankind. 
You are not entitled to life. You are not entitled to dignity. You are not 
human. I will therefore annihilate your life”.

A concluding vision

Despite his desire to exercise his power in this respect, it is unlikely that 
President Sirisena will be present to witness each of the chosen four being 
hanged by his or her neck until he or she is dead.

Therefore, for his benefit, I would entreat him, at sunrise on each of the four 
mornings, to read to himself the execution of the death penalty as described by 
Professor Chris Barnard:

“The man’s spinal cord will rupture at the point where it enters the skull, 
electro-chemical discharges will send his limbs flailing in a grotesque dance, 
eyes and tongue will start from the facial apertures under the assault of the 
rope and his bowels and bladder may simultaneously void themselves to soil the 
legs and drip on the floor”.

(source: Opinion, Dr Nihal Jayawickrama----Sunday Observer)

********************

Bill to kill death penalty; petitions galore amid mounting calls to shut the 
gallows



United National Party Galle district Parliamentarian Bandula Lal Bandarigoda 
has submitted a Private Member’s Bill seeking to abolish the death penalty.

The Bill, if approved by Parliament, will abolish the death penalty and replace 
the death sentence an offence carries under any Act with a maximum of life 
imprisonment.

The Bill will cover not just sentences imposed after its passage but will also 
apply to prisoners who have already been convicted and sentenced to death. 
Accordingly, their punishment will be converted to life imprisonment.

On Friday, Mr Bandarigoda told journalists that the UNP’s Gampaha District MP, 
Kavinda Jayawardena, and he were cosponsoring the Bill on moral grounds.

“I am a Buddhist and my colleague Mr Jayawardena is a Catholic. As a Buddhist, 
I have a moral obligation to live by the Buddha’s philosophy, according to 
which killing is abhorred. Buddhism’ first precept teaches us not to kill. The 
death penalty allows killing of someone legally. We cannot agree to such a 
thing, as Buddhism does not allow it,” he said.

Meanwhile the Prisons Commissioner General T.M.J.W. Thennakoon told the Court 
of Appeal on Friday that he was yet to receive any communication from the 
President on the date, time and location to execute any condemned prisoner.

The Prisons Commissioner General made this statement when Court of Appeal 
President Yasantha Kodagoda inquired from him whether he had received any such 
communication from the President.

The court asked this question when it took up the writ petition filed by 
journalist Malinda Seneviratne against President Maithripala Sirisena’s 
decision to implement the death penalty on those sentenced to death for drug 
offences.

A five-judge Court of Appeal bench comprising its President Justice Yasantha 
Kodagoda and Justices Deepali Wijesundara, Janak De Silva, Achala Wengappuli 
and Arjuna Obeysekera is hearing the petition. On Friday, the court said that 
it would decide on July 17 whether to accept preliminary objections raised by 
the Attorney General regarding Mr Seneviratne’s petition.

In a related development, the Supreme Court on Friday granted interim relief 
after considering a fundamental rights petition filed by a death row prisoner. 
The court issued an order, staying the execution of any condemned prisoners 
until October 30 this year.

The order was issued by a 3-judge bench comprising Justices Buwaneka Aluwihare, 
Prasanna Jayawardena and Gamini Amarasekara.

The petition was first of the 13 FR cases filed against the decision to 
implement the death penalty. The petition had been filed by death row prisoner 
Mohammad Haniffa Praeem Nawas.

His lawyer Kavindu Hewa Geeganage filed the petition through Attorney-at-Law 
Gowry Sangary Thavarasha and cited the Attorney General, Justice and Prison 
Reforms Minister Thalatha Atukorale, Prisons Commissioner General T.M.J.W. 
Thennakoon, Welikada Prison Superintendent T.G. Uduwara, Presidential Secretary 
Udaya R. Seneviratne, the Human Rights Commission of Sri Lanka and Bar 
Association President Kalinga Indatissa as respondents.

Making submissions on behalf of the petitioner, M.A. Sumanthiran, PC pointed 
out that the country’s last execution occurred in 1976 and the death penalty 
had not been carried out in the country since the enactment of the 1978 
Constitution. He argued that the death penalty contravened the Constitution’s 
Article 11, which prohibits a person being subjected to “torture or to cruel, 
inhuman or degrading treatment or punishment.”

Deputy Solicitor General Nerin Pulle, who appeared for the Attorney General, 
contended that the Constitution’s Article 13(4) provides for the implementation 
of the death penalty as it asserts that “No person shall be punished with death 
or imprisonment except by order of a competent court, made in accordance with 
procedure established by law.” He further drew the Court’s attention to Article 
16(2), which notes that “the subjection of any person on the order of a 
competent court to any form of punishment recognised by any existing written 
law shall not be a contravention of the provisions of this chapter.”

He argued that the imposition of the death sentence was vested with the 
judiciary and that the President’s role was limited to deciding on the date and 
place where executions would take place, thus giving effect to a judicial 
decree.

He said the petition was requesting Court to engage in a post-enactment 
judicial review, which was not provided for under the Constitution.

Mr Pulle argued that the petitioners had not satisfied the threshold 
requirement to enable the Court to grant interim relief.

After considering the submissions, Court granted interim relief, issuing a stay 
order preventing the execution of any condemned prisoner until October 30 this 
year.

The next hearing date will be on October 29, when the Court will hear all 
petitions to decide on whether to grant leave to proceed.

(source: sundaytimes.lk)