Introduction
The Egyptian Initiative for Personal Rights (EIPR) opposes the death penalty in principle and in all cases without exception, because it constitutes a grave violation of human rights, does not achieve the desired deterrence, and is not enjoined by Islamic law (shari’a) as commonly perceived. This paper explains EIPR’s position against the death penalty in detail and affirms the need to realize justice by ending crime, not life.
EIPR condemns the Egyptian government’s adherence to the death penalty and urges it to sign and ratify the second optional protocol of the International Covenant on Civil and Political Rights (ICCPR), which seeks a moratorium on the death penalty.
Despite a global trend toward ending the death penalty, demonstrated by various forums acting to this end, the official position of the Egyptian government is to encourage the persistence of capital punishment. In a vote of the UN General Assembly to suspend the use of the death penalty in December 2016, Egypt voted against the resolution. Again, last September, during the 36th session of the UN Human Rights Council, Egypt voted against a resolution (A/HRC/36/L.6) against the death penalty.
There is a growing global trend toward the abolition of capital punishment. As of the end of December 2016, a total of 104 states had abolished the death penalty for all crimes. Among the 104 is Djibouti, a member of the Arab League and the only Arab-Islamic state to do so, and all member states of the European Union (EU), which are obliged under Article 1 of Protocol 13 of the European Convention on Human Rights to abolish the death penalty.
In addition to the abovementioned nations that represent more than 70 percent of the world’s nations, an additional seven states have abolished the use of the death penalty for ordinary crimes, reserving it for exceptional circumstances. Another ten states have declared a moratorium on the execution of death sentences, which means they have suspended all implementation for at least ten years. These states include five Arab nations: Algeria, Morocco, Mauritania, Comoros, and Tunisia. In total only a minority of 57 states around the world continue to apply the death penalty.
The Death Penalty in Egyptian Legislation
More than 100 crimes are punishable by death under Egyptian laws. These include 35 crimes set forth in the Penal Code, such as harming domestic and foreign national security and harming individuals, and another 10 crimes included in the anti-drug law. Most of the crimes punishable by death are found in the Code of Military Justice, which sets forth at least 41 capital crimes. In addition, the counterterrorism law of 2015 sets forth at least another 15 crimes punishable by death by hanging.
In contrast to the growing number of capital crimes, the stages of judicial proceedings to which those accused of these crimes have recourse have been narrowed. Before 27 April 2017, the Court of Cassation could vacate felony judgments and order a retrial before another felony circuit. If defendants were convicted by the second felony court, they could again appeal before the Court of Cassation. In such cases, the Court of Cassation would adjudicate the case on the merits and its ruling was final. In short, defendants in capital cases had recourse to two appeals before the Court of Cassation.
In April, however, appeal procedures were amended to allow one trial before the felony court and one appeal before the Court of Cassation, during which the court would address the substance of the case. The goal of the amendments was to expedite litigation, but this is not necessarily a positive goal. On the contrary, reducing the avenues for judicial proceedings and cutting out the opportunity for a retrial, especially in capital cases, could threaten the course of justice, due process guarantees, and defendants’ rights.
Islamic Law does not Enjoin the Death Penalty
As for the role of capital punishment in Islamic law, the shari’a does not enjoin the death penalty. On the contrary, the conditions for punitive retribution are so strict they are virtually impossible to meet. The case for punitive retribution can be established in one of two ways: either the testimony of two witnesses of good repute or the personal affirmation of the accused. In regard to the first method, the witnesses’ testimony must be entirely consistent in all details; no contradictory statements are acceptable. The witnesses must also have directly seen the incident in question—the murder, for example—without relying on statements from other persons.
Moreover, one of the most important conditions is the absence of doubt, as its existence would nullify the verdict altogether. If the judge, for instance , has the least doubt about the testimonies to the crime, it is his right—indeed, his legal obligation—to not issue a sentence of punitive retribution on the basis of those testimonies. Meeting such stringent conditions is virtually impossible in practice. The second method is a personal affirmation. The defendant must affirm his commission of the crime before the judge, with guarantees that he has not been subject to torture, threat, or any pressure whatsoever during questioning.
In addition, Islamic law allows for clemency, not by an act of the judge, but of the aggrieved parties. For example, if the family of a murdered person decides to pardon the murderer, the latter would not be killed. Instead, the killer pays a sum of money determined by the victim’s family and the case is concluded. This practice has been seen in a number of Arab states, including Libya and the UAE.
There is another important aspect that the competent authorities often neglect to clarify: many crimes currently punishable by death under Egyptian law find no cognate in Islamic law. Whereas Islamic law sets forth three crimes that are theoretically punishable by death, Egyptian law enumerates more than 100 such crimes. The authorities have therefore exploited Islamic law to expand the number of crimes punishable by death.
The Death Penalty is a Violation of Human Rights
In addition to violations related to judicial proceedings, the death penalty is a per se violation of human rights, insofar as it infringes the first and most basic right: the right to life.
Article 6 of the ICCPR states, “Every human being has the inherent right to life.” Similarly, Article 59 of the Egyptian constitution states, “A secure life is the right of every person.” This is further affirmed by Article 4 of the African Charter on Human and Peoples’ Rights, which states, “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
Egypt is legally bound by international conventions it has ratified under Article 93 of the Egyptian constitution, which obligates the state to abide by international human rights treaties and conventions Egypt has ratified, giving them the force of law after their promulgation.
The Death Penalty is not a Deterrent
The death penalty does not deter individuals from committing crimes in the future, whether ordinary or political offenses. Regarding ordinary offenses, Ivan Šimonović, assistant UN secretary-general for human rights, has said there is no evidence that the death penalty deters crime. Navi Pillay, the former high commissioner for human rights, commented in a publication issued by the OHCHR in 2012 that any suggestion that the death penalty has a deterrent effect is exaggerated. Discussing the lack of any evidence for deterrence, the publication noted, “…the death penalty’s perceived deterrence effect has been overstated and manipulated for decades.”
The current high commissioner for human rights, Zeid Ra’ad al-Hussein, said in March during a high-level discussion convened biannually in Geneva, “The severe mental and physical suffering which are inflicted by capital punishment on the person concerned and family members should now be added to the weight of the argument,” explaining this as “another reason why the death penalty should be abolished, besides its capricious and often discriminatory application and its failure to demonstrate any deterrent effect beyond that of other punishments.”
Regarding extraordinary crimes, there is similarly no evidence of the death penalty’s deterrent effect. For example, Ben Emmerson, the UN special rapporteur on human rights while countering terrorism, has said, “Resorting to this type of punishment to curb terrorism is illegal as much as it is futile. There is a lack of persuasive evidence that the death penalty could contribute more than any other punishment in eradicating terrorism. The death penalty is also an ineffective deterrent because terrorists who are executed may just gain in prestige as may their cause.” During a UN General Assembly forum to discuss the death penalty in 2012, speakers noted that organized crime groups make “calculated decisions and believe that detections and convictions are unlikely,” while “those who commit terrorist acts for political ends…are often prepared to die for that cause…[and] unlikely to be deterred by the death penalty.”
EIPR again calls on the Egyptian government to end the use of the death penalty, by suspending the execution of sentences already issued and refraining from issuing any new sentences. EIPR also holds the Egyptian government wholly responsible if it executes persons later proven innocent, and it reaffirms that genuine deterrence will come through a radical overhaul of state institutions. The state must also treat all international conventions against the death penalty with due seriousness and comply with international and local human rights standards.
References:
- Egypt is bound by the ICCPR since its ratification of the covenant on Jan. 14, 1982.
- Egyptian is bound by the charter since its ratification on Mar. 20, 1984.
