In this article, ECDHR analyses the international and national legal framework surrounding capital punishment in the Kingdom of Saudi Arabia as a follow-up to the previously published article on the EU-Saudi dialogue.
Despite the global movement toward the abolition of the death penalty, many countries have retained it in their judiciary systems, and others, such as Saudi Arabia, have even extended its scope. Saudi law establishes an extremely wide range of capital offences, to which convictions ordinarily involve summary criminal judicial processes and human rights violations, and contribute to Saudi authorities’ discriminatory practices towards religious and political minorities, foreign workers, and women.
Saudi Arabia National Legal Framework
With one of the world’s highest rates of execution, Saudi Arabia retains the death penalty in law. According to Saudi legislation, capital punishment can be handed down for a wide range of crimes, including murder, drug offences, apostasy, sorcery and witchcraft. Children are also eligible for the death penalty. Because Saudi law is mostly uncodified, judges are granted wide discretion in making rules based on the Saudi interpretation of Islamic sharia. The official interpretation establishes three categories of crimes, and all three make no distinction between adolescents and adults. The first, hudud – also known as Quranic offences – concerns crimes for which an exact punishment is prescribed in the Quran or the Hadith, such as banditry, blasphemy, or sodomy. These crimes are oftentimes punishable by death. The second category, the qisas crimes, best known as retribution-in-kind, applies to instances of murder: once the alleged murderer is convicted, the family of the victim can seek either the death of the convicted or a payment. Finally, a large segment of Saudi law concerns the third category, taazir, which can be understood as discretionary law. Indeed, Saudi rulers can legislate outside the categories defined in the Quran and the Hadith, as has been the case for the taazir law on drug smuggling, which imposes mandatory death sentences upon convicted persons.
The Saudi government has promised to end the execution of minors on several occasions. In 2018, it first promulgated a new Juvenile Law and most recently in February 2021, the government stated that it had completely abolished the practice of executing children at the United Nations Human Rights Council. However, the government has repeatedly violated its pledges. For instance, last year, the Government executed 12 persons who had been convicted for crimes that occurred when they were minors. Because of the lack of transparent information from the government, it is believed that the executions of minors remain underreported. Moreover, based on the 2018 Juvenile Law the ban on minors’ executions does not override existing law in cases of hudud or qisas crimes, for which the Quran prescribes capital punishment.
Besides the main issue of children’s execution, death sentences are often handed down after grossly unfair or deeply flawed trials, where forced confessions are admitted as evidence of guilt. Early last year, Saudi authorities announced a moratorium on executions for drug-related crimes. However, existing narcotics laws maintain the death penalty as a possible ruling, and those individuals previously sentenced to death for drug-related crimes currently remain on death row.
International law towards the abolishment of the death penalty
The United Nations system opposes the use of the death penalty in any circumstance due to its irreversible nature, despite no agreements or treaties prohibiting its use. However, being considered a practice that undermines human dignity and the development of human rights, the majority of UN member states do not legalize or practice capital punishment while pushing toward its abolition.
International law limits the application of the death penalty and encourages its abolition through several human rights instruments. International law explicitly prohibits the imposition of the death penalty on children, admitting no derogation or exemption to such rule under any circumstances. The Convention on the Rights of the Child (CRC) specifically prohibits capital punishment “for offences committed by persons below eighteen years of age”. Such a norm is reinforced by international customary law (Practice Relating to Rule 135. Children).
Moreover, the imposition of the death penalty limited to the most serious crimes is an established principle of international law. According to the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, published in 1984 by the Economic and Social Council, “the most serious crimes should not go beyond intentional crimes with lethal or other extremely grave consequences.” Despite these Safeguards not being legally binding, they receive the support of the UN General Assembly and the SR on Extrajudicial, Summary or Arbitrary Executions, and on Torture. Also, article 6(2) of the ICCPR states that “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.” Therefore, capital punishment should be eliminated for economic crimes, drug-related offences, victimless offences, and actions relating to moral values including adultery, prostitution and sexual orientation.
Moving towards the abolition of the death penalty, the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) states that “no one within the jurisdiction of a State Party to the present Protocol shall be executed”. To reinforce it, article 6 of the ICCPR provides that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment in any State party to the Covenant”. Despite Saudi Arabia being one of the few states that are not a party, “the terms of the ICCPR provide guidance as to the content of the fundamental rights that Saudi Arabia is obligated to respect, based on Saudi Arabia’s participation in the United Nations and the universally binding character of such rights.” In this regard, the fundamental right to life, enshrined in article 3 of the UDHR as well as in article 6 of the ICCPR, is breached by Saudi Arabia when a sentence of death is imposed as a result of a trial in which the provisions of the ICCPR have not been respected. According to the European Court of Human Rights, “to impose a death sentence on a person after an unfair trial (art. 14 ICCPR) is to subject that person wrongfully to the fear that he will be executed… Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention… the imposition of a capital sentence in such circumstances must be considered, in itself, to amount to a form of inhuman treatment.” Various tribunals have also labelled as unacceptable several methods of execution, identifying them as cruel, inhuman and degrading treatment and not compatible with human dignity.
Analyzed from a human rights perspective, a sentence of death not only deprives human beings of their most basic right to life, but also proves that there are no guarantees or limitations that can make the death penalty fair. While the claim of the death penalty as a way to deter people from committing crimes has been discredited, a sentence of death is an irrevocable punishment that cannot be undone in case of errors. Furthermore, the death sentence is mainly utilized by authoritarian regimes as a political tool to punish political opponents and human rights activists, as in the case of Saudi Arabia and other GCC countries. Based on the argumentation presented so far, the logical and reasonable solution to this problem is to establish a permanent end to the death penalty.
The disproportionate use of capital punishment in Saudi Arabia remains concerning. Members of the European Parliament are calling on Saudi Arabia to put an end to the use of such a meaningless and cruel practice. However, the number of individuals convicted on death row has been increasing alarmingly in recent years, with no safeguards or exceptions for children. In the past week, the criminal court in Tabuk ruled to sentence Abdullah al-Howaiti to death once again. The decision is in breach of international standards that prohibit the use of the death penalty for crimes committed under the age of 18, as well as the Saudi Royal Order of 2020 announcing the end of the death penalty against minors at the time of the offence. As stated by Maria Arena and Hannah Neumann, “Abdullah al-Howaiti’s death sentence comes while Saudi authorities expressed willingness to engage in a meaningful dialogue with the EU on human rights, be it at executive or legislative level.” Only revoking his conviction and initiating a retrial in compliance with international law would prove Saudi willingness toward positive legal and practical changes respectful of human rights and dignity.