25 May 2016

16/2016

The Independent Commission for Human Rights (ICHR) demands that responsible authorities in the Gaza Strip abstain from executing death sentences in the Gaza Strip. The ICHR demands that no extraordinary measures or procedures be implemented or powers given to any authority without due jurisdiction. The Commission also stresses that legal norms provided by the Palestinian Basic Law and Law of Penal Procedure must be respected and free trial guarantees given to accused persons.

The ICHR follows with great concern recurrent statements made by responsible agencies in the Gaza Strip, making clear their intention to carry out the death penalties in the near future. The Gaza-based Attorney General, members on the Reform and Change Bloc at the Palestinian Legislative Council (PLC) and officials of the Islamic Resistance Movement (Hamas) have declared that responsible agencies had the intention to carry out the death sentences in public against persons accused of murder crimes. Across the Gaza Strip, systematic work is underway to set the stage for executing these penalties. To this effect, statements are being made by members of the Palestine Scholars Association, community leaders and reconciliation figures. In addition, public encounters, popular sit-in protests and media shows are in the making, calling for expedited enforcement of death sentences.

The ICHR stresses that offenders must be subject to a fair trial. Deterrent penalties must be imposed on convicted offenders. All legal measures designed to protect society values and community safety must also be in place. At the same time, however, the ICHR recalls that a set of guarantees for the execution of death sentences are enshrined in the Palestinian Basic Law and other laws in force. Once executed, this grave penalty is never revocable. Guarantees are as follows:

- The sentence must be rendered by a competent court.

- The sentence must be built on certain, rather than suspicious, grounds. It must be entered after the accused person is allowed all guarantees of defence in a trial that fulfils fair trial guarantees.

- The sentence must be definitive and has exhausted all avenues for appeals.

- The President of the Palestinian National Authority must endorse the death sentence insomuch as this is an exclusive right vested in the President of the State. According to Article 109 of the Palestinian Basic Law, "[a] death sentence pronounced by any court may not be implemented unless endorsed by the President of the Palestinian National Authority." This is further confirmed by Article 409 of the 2012 Law of Penal Procedure, Article 332 of the 1979 Revolutionary Penal Law, and Article 96 of the Military Justice Law No. 4 of 2008, promulgated by the Hamas Bloc at the PLC.

Having examined the cases in which the accused persons may be subject to the death penalty, the ICHR notes several substantial comments on the procedures of detention and trial of these persons. According to information provided to the ICHR, some accused persons were detained without any arrest warrants presented. While the homes of some accused persons were raided, others were summoned by telephone to report to Police stations. Some of the accused are civilians; they do not have a military capacity nor are they employed by any military agency. Still, they were brought before military courts. Additionally, some accused persons were subject to torture during interrogation and detention.

Some of the guarantees mentioned above are blatantly missing, particularly the President's endorsement of death sentences and fair trial guarantees given to the civilians who were taken before military courts. Against this background, the ICHR believes that the execution of any death sentence by responsible agencies in the Gaza Strip is considered to be a direct violation of the principle of legitimacy and amounts to extrajudicial killing. It also constitutes a serious setback to public rights and freedoms in Gaza. It may allow room for an extensive, public and spectacular execution of this serious penalty, providing the grounds for a new mode of governance and reproducing horrific instances that have surfaced across our Arab region.