This article is written by Aayushi Gupta, from Rajiv Gandhi National University of Law, Punjab. This article deals with the capital punishment of minors, its abolition by Saudi Arabia, and its moral justification.
Capital Punishment is one such state authorized punishment which has always been hotly debated about. There has always been a debate on whether the minor offenders should be treated as adults and be executed in the same way. While the International Covenants and Conventions disapproves of it, there are still countries who practice the same. The retentionist countries are of the view that sometimes the crimes committed by juveniles are heinous and should be treated as if committed by adults while the abolitionist countries hold the view that it is a grave violation of human rights and misappropriation of justice.
Death penalty or capital punishment
Capital Punishment or Death Penalty is commonly referred to as a state-sanctioned practice whereby an offender or condemned is put to death by the state as a punishment for the crime committed. The sentence which orders that someone must be punished in such a manner is called a death sentence while the act through which the sentence is carried out is called execution. Crimes punishable by death are commonly known as capital felonies or offences, but they vary depending on the jurisdiction of the political state. But the most commonly recognized capital felonies are murder, mass murder, rape and child rape, terrorism, espionage, treason, sedition, child sexual abuse, crimes against the state such as overthrowing the government, and in some cases, serious cases of relapsing into crime or recidivism, kidnapping, and aggravated robbery. Also, in some of the Islamic states like Saudi Arabia and Iran, even the crimes against Islam is considered a capital offence.
The execution of non-conformists and criminals has been practised by virtually every society since the beginning of civilization. Without the establishment of prison systems until the 19th century, there was no other feasible alternative to ensure incapacitation and deterrence of criminals, then to execute them through various means like sawing, flaying, burning at the stake, and many more practices. In the 20th century, there were various kinds of capital punishments like handing, decapitation, and death by shooting. And usually, the people who were executed were charged with, no more than mere petty crimes in today’s time, cowardice, desertion, insubordination, and disobeying orders. Similarly, the fascist and the communist regime used capital punishment as a way of suppressing political oppression.
All European and the Oceania States, as well as Canada, have abolished the death penalty altogether. Most of the states in Latin America as well have abolished the death penalty while some of the states like Brazil have retained it for exceptional circumstances like treason or other war-related crimes. The United States, many of the countries of Asia, like China, India, Pakistan, and some of the Islamic countries have retained the death penalty for serious offenders. In Africa, only a handful of countries retain capital punishment such as Botswana and Zambia. South Africa abolished it as early as in 1995. 56 countries around the world retain the death penalty, 106 countries have abolished it de jure or rightfully for all crimes, 8 countries have abolished it for common offences while retaining it for gruesome crimes like war crimes, and 28 countries are abolitionist in practice. Even the retentionist countries face problems with the death penalty. When there has been a miscarriage of justice through this practice, it calls for its abolition, though it usually results in just a legislative effort to improve the judicial system. In abolitionist nations, the debate is revived when there has been a brutal crime commission and the death penalty seems to be the best alternative to judicial justice.
The death penalty for juvenile offenders, i.e., offenders under the age of 18 or the age decided by the state, has been increasingly rare. The age of majority is still not considered 18 in some of the countries, but, since 1990, some countries have executed offenders who were considered juvenile at the time when the crime was committed: Pakistan, The People’s Republic of China, Congo, Bangladesh, Iran, Japan, Iraq, Nigeria, Saudi Arabia, The United States of America, Yemen, and Sudan. Although some of the countries like PRC, Iran, Yemen, Pakistan, and the US have raised the age of majority to 18, child executions have still taken place. Amnesty International has recorded around 61 child executions since then, of both minors and adults, who were convicted of commission of a crime when they were juveniles.
There are always debates around the execution of minors. Some say that this is a violation of human rights and some say that the minor offenders need to be punished in the same way as an adult criminal.
World’s stance on capital punishment
Capital Punishment has had a history since the advent of civilization in the world. In the previous era, it was mainly confined to petty crimes such as disobedience, insubordination, etc. But with time, it has changed its ways. Most of the countries have put an end to capital punishment while some countries have restrained it for heinous crimes like war crimes or terrorism. Some of the Islamic countries declare the death penalty even for going against Islam, for example, Saudi Arabia and Iran.
But the question here is whether the juveniles should be executed or not? 226 juveniles who were under the age of 18, have been imposed with the death penalty in the United States since 1973. Of these, 22 have been executed while 82 remain on death row. Between 2005 and May 2008, Pakistan, Yemen, Saudi Arabia, Iran, and Sudan, were reported to have executed juvenile offenders, with the largest number of executions occurring in Iran. It was reported that Saudi Arabia executed at least two, Iran executed 5 and Sudan executed 1 minor offender in the year 2009. According to the Children’s Rights Information Network, at least 12 countries still have laws in their books that sanction this practice. And many of these countries have the majority age as low as 15. But on a positive note, Sudan increased the age to 18 in January 2010, which previously had ambiguous provisions regarding the age of majority which was still as low as 15. Nigeria held 30 juvenile offenders on death row in 2010, while it is known to have not executed a single minor since 1997. And also UAE held several juvenile offenders on the death row in 2010.
But there have been desperate efforts around the world to prevent this practice. The United Nations Convention on the Rights of Child prohibits the death penalty for minors under its Article 37(a), and this convention has been signed by all countries and subsequently ratified by all signatories except Somalia and the US. The UN Sub-Commission on the Promotion and Protection of Human Rights states that capital punishment for minors is contrary to the jus cogens or the peremptory norms of the International Customary Law. And also, the UN International Covenant on Civil and Political Rights, of which many countries are a part of, in its Article 6(5) clearly states that the death sentence shall not be inflicted on crimes committed by minors or people who were less than 18 years of age at the time of the commission of a crime. But the age of majority varies according to the political state we reside in.
Many of the countries, despite ratifying the Convention on the Rights of Child and the Covenant on Civil and Political Rights, have continued the practice of juvenile execution. Iran, despite its ratification to the same, has been the world’s largest executioner of juveniles for which it has received stringent worldwide damnation and has been since the focus of the Stop Childs Execution Campaign. The Iranian Judiciary continues to persecute, detain and prosecute human rights lawyers who speak against the inhumane, anachronistic injustice. But in 2012, it made a significant effort in the field of juvenile execution. On February 10, 2012, Iran’s Parliament changed its controversial laws regarding juvenile execution. In the amended legislation, the age of majority increased from 9 years for girls and 15 years for boys to 18 years for both genders. But it still accounts for more than two-thirds of minor executions in the world. Same is the case for countries like China, Pakistan, Yemen, and Sudan, who account for most of the juvenile executions in the world. There still are instances which show that child execution continues in countries like Somalia controlled by Islamic Controls Union. In October 2008, a girl named Aisha Ibrahim was buried to her neck in a football stadium and was later stoned to death in front of 1000 people. But, eventually, the country established a transitional federal government that said that it would sign the Convention on the Rights of Child, which it did join in 2015. There are still many countries that execute children but are left unaccounted for.
There has always been a hot debate about whether the juveniles should be executed or not. The retentionist countries are of the view that the crimes committed by the minors should be treated as if committed by an adult offender. But in the 2005 decision of Roper v. Simmons, the United States’ Supreme Court held that the execution of children under the age of 18 violated the federal constitutional guarantee against cruel and unjust punishment. It drew upon a decision of 2002, Atkins v. Virginia, which stated that the execution of people with mental retardation is unconstitutional. In the same way, it is reasoned that these special groups shouldn’t be executed because they don’t inherit the same mental state as the adult offenders, and therefore are less culpable than them. Also, the states are of the view that it’s a crude violation of the human rights of children to execute them. Therefore, there are only a few countries that allow the execution of children. Recently, Saudi Arabia ended its practice of execution of minor offenders, in the wake of its large human rights violation. It held the view that it is a grave violation of human rights and misappropriation of justice.
Saudi Arabia’s end to the death penalty for juvenile offenders
Capital Punishment is a legal penalty in Saudi Arabia. Saudi Arabia has neither a codified penal law that establishes certain acts as criminal offences nor a properly officially published interpretation of Sharia Law, which forms the basis for all the laws in the state. Instead, the judges use their discretion to apply Sharia Law in criminal cases as they deem fit. Saudi courts have imposed a death penalty on various offences like adultery, witchcraft, corruption of the earth, drug trafficking, apostasy, sabotage and political rebellion, and murder. The courts can also impose the death penalty for any other activity that seems criminal on a discretionary basis (ta’zir). Under interpretations of Sharia Law, manslaughter and murder are offences considered to be against a private right (qizas). Under these qizas, the family of the deceased has the right either to insist on execution, issue a pardon, or accept monetary compensation from convicted. Saudi Arabia is also infamous for its public execution.
The country performed at least 158 executions in 2015, 154 in 2016, 146 in 2017, 149 in 2018, and at least 184 in 2019. In these executions, children were also involved. Despite signing and ratifying the Convention on the Rights of the Child, it has still executed children till April 20, 2020, when the death penalty against the juveniles was declared banned by the royal decree. It has been said that the Islamic nation has one of the worst human rights records, clearly depicted in execution figures. Initially, the age of majority in Saudi Arabia was 15, which was later increased to 18.
It has recorded several instances of juvenile execution. On May 12, 2004, two children, Sultan bin Sulaiman al-Muwallad, a Saudi, and Issa bin Muhammed Muhammed, a Chadian were arrested for offences committed when they were 17. The two were arrested and detained at the Medina Police Station where they confessed of committing the crime of abduction and rape of a child, consumption of drugs and alcohol, and theft. They were sentenced to death in February 2009. Another minor, Murtaja Qureris, a member of the country’s Shiite minority, was detained in September 2014. The Saudi monarchy has been known for following what is known as Wahhabism. And there have been many instances where they prosecuted Shiites while the country is predominantly occupied by Sunnis. CNN posted videos of Murtaja where he was leading a crowd of children at a bike protest in 2010. He was 10 at that time. And this was also the time of the uprising of the Arab Spring, which engulfed North Africa and the Middle East, affecting the largely Shiite eastern provinces of Saudi Arabia. He belonged to a family of activists. His first court session was held in 2018, four years after he was detained, at the Specialized anti-terror Court established in 2008, which is used to prosecute human rights activists. His trial was unfair and he was beaten and intimidated during interrogation. But he was spared execution after the report received international outcry. In another instance, three other young men- Ali al-Nimr (age 17), Dawood al Marhoon, and Abdulla al-Zaher, who were also juveniles at the time of the commission of their crime have been sentenced to death and are awaiting execution. And in 2019, at least three men who were children at the time of their offence were among the 37 victims of mass execution.
The executions have drawn severe condemnation from the United Nations and other political states. They feel that they have been using the death penalty as a measure to prevent political dissent and demonstrations. The kingdom intends to execute those who are convicted of attending these demonstrations while they were still in school. The acts of execution, especially the execution of juveniles, has received wide criticism from around the world. They feel that, despite being a party to the Convention on the Rights of the Child, Saudi Arabia has been continually violating its provision which abolishes the death penalty for minors. They also feel that the convicted juvenile didn’t receive fair trial opportunities.
In the wake of international outcry, Saudi Arabia, on April 20, 2020, abolished the death penalty for juvenile offenders. The decision was part of the royal decree and was made two days after abolishing flogging, except for exceptional circumstances. The death penalty was abolished for those convicted of crimes committed while they were underage or juveniles. The declaration or the decree stated that anyone who received a death sentence for the crimes committed while they were minors, will instead receive a prison sentence of no longer than 10 years in a juvenile detention centre or facility. This abolishment is expected to save the lives of at least six juveniles, belonging to the Shia minority community, who were arrested for crimes committed when they were minors and were sentenced to death. They were arrested during the Arab Spring for protesting against the government, while they were under 18 years of age, and were given the death sentence.
Saudi Arabia has a chilling track for giving capital punishments even to juveniles. Organizations like Amnesty International and the United Nations feel that this is an egregious violation of legal protection for children. They feel that Saudi Arab is so focused on repressing political dissent, that they may even persecute those who are underage. They felt that the execution of children was not in line with juvenile judicial standards. This announcement followed the law of Juveniles issued in 2018, which prevented the judges from imposing discretionary death punishments on those under 15 years of age. But it didn’t stop them from making death sentences in cases of those who are convicted of hadd crimes and crimes punishable by qisas. However, this law fell short of Saudi Arabia’s obligations under the Convention on the Rights of Child, as it didn’t completely ban juvenile execution.
The banning of juvenile execution is indeed a big day for Saudi Arabia. This decree will help Saudi Arabia establish a more modern penal code, for it is said to belong associated with the fundamentalist strain of Wahabbi Islam which targets the Shia Minority. It will also tend to establish an environment of lesser human rights violations in the state. It also demonstrates the country’s devotion to pursuing key reforms across all sectors of society. The state has overseen a chain of economic and social reforms over the years. The country saw the banning of flogging, and instead, people will be sent to prison or receive fines. Despite the reforms, the country still practices public execution and corporal punishments like amputation for theft. It has long been accused of being a country with grave human rights violations. This banning of juvenile execution is surely a step to lessen the human rights violations. It is clearly on its way to following the Convention’s provision of abolishing the death penalty for juveniles, which it has violated for long.
The country has had a long history of human rights violations. The people here say that their freedom of expression is curtailed and they are subject to arbitrary arrest. They also don’t get fair judicial trials and the killing of journalist Jamal Khashoggi is a clear example of the same. It is also reported that human rights demonstrator died in jail due to medical neglect. So the banning of the death penalty for juveniles is a step towards establishing a healthier environment for human rights fulfilment.
But people still think that these are just empty words. As Saudi Arabia has always been trying to ban juvenile execution but everything resulted in the execution of protestors who were still in school. They also feel that the three children involved in the Arab Spring will be executed by Saudi Arabia because if they wanted to relieve them of the penalty they would have done it immediately. They also feel that this is not the completion of the justice system and there is a long way ahead. But the Royal Decree excluded crimes under the anti-terrorism law. It is still unclear what they would be subjected to if they are tried under counter-terrorism law. It has been noticed by the Amnesty International, there have been several instances of misuse of a counter-terrorism law, which has overly broad and vague definitions of terrorism and terrorist crimes and also contains several provisions that criminalize peaceful expression of public views.
Is capital punishment morally justified
Throughout the entire course of time, societies have used the death penalty as a means to ensure the deterrence of crimes. A few countries still retain death punishment for certain crimes while a majority of the nations have abolished it altogether. Given the noble intricacies and the emotions involved, there is a moral debate around capital punishment, whether it’s justified or not. Even the world’s religious communities are divided on the issue. While religions like Hinduism and Buddhism talk about non-violence, scholars within these religions continue to talk about the permissibility of legal punishment. While the Old testament pays its allegiance to the principle of an eye for an eye, the New Testament strongly encourages us to turn the other cheek. And it is always seen that Islam is compatible with the practice of the death penalty, but it seeks to enforce that Muslims should work with non-violence and not retaliation.
People supporting capital punishment are of the view that this punishment of criminals is intrinsically valuable; valuable in itself and not for its consequences. They also support that this may lead to the prevention of crimes in the future, as it can be used as a method of deterrence. This method makes the criminal realize that he has done something intrinsically wrong and has to bear its consequences. But those against it hold the view that there is no concrete evidence to show that it deters crime. It is also more expensive than keeping a convicted incarcerated, even for a lifetime. It also doesn’t bring relief or closure to the victim’s family, as it’s intended for.
Although several parameters are taken into consideration for declaring a death sentence to a juvenile like a type and gravity of an offence he or she has committed and in which manner, the maturity, and sophistication of the juvenile, his or her record or history and the prospects of protecting the public and rehabilitating the juvenile.
But still, it is argued that capital punishment for minors is strictly unacceptable. The main reason behind this is the mental state of the juvenile. On October 14, 2005, in Roper v. Simmons, the Missouri case, the court held the execution of juveniles contrary to the Eighth Amendment. The Eighth Amendment forbids the federal government from imposing cruel and harsh penalties on criminal defendants. The court thought that the execution of people who were still minors or were under the age of majority when they committed the crime is violative of the constitutional guarantee against the imposition of cruel and unusual penalties.
The court drew its opinion on the 2002 case of Atkins v. Virginia. The Missouri Supreme Court applied the same rationale for banning the death punishment for juveniles as it had it applied for the banning of the death penalty for mentally retarded people. People under the age of 18 are not considered old enough to make good decisions. This stipulation is further corroborated by rapidly advancing technology. Recent studies have shown that the parts of the brain that govern judgment, impulse control and reasoning are not fully developed until the 20s. This connotes that juveniles may be good in other areas but they are not expected to control or reason their behaviour as well as adults, and therefore should not be held for the same level of culpability.
The issues of executing minor offenders and mentally retarded people echo the same reasoning. The court depended on a variety of information for the same. They saw that 30 states have already banned the execution of mentally retarded people. The court also took into consideration public opinion of a variety of professionals, religious institutions, experts and laws of various countries. They also looked at the fact that only five mentally retarded people have been executed since 1989. In its ruling, the court said that the dual justifications or grounds of the death penalty- retribution and deterrence- didn’t make sense in the case of mentally retarded and juveniles. Because of their mental limitations, they are unable to act with premeditations and deliberations and are therefore less likely to be deterred by the death penalty. The essential for a crime is mens rea or state of mind, which is not present in juveniles, and hence, they should not be given the death penalty, instead, they can be given harsh punishments, including life imprisonment without parole. The juveniles can instead be tried and prosecuted in an adult court and sentenced to lengthy sentences. The court’s ruling in the Missouri case affected 72 juvenile offenders in 12 states.
The constitutionality of executing persons for crimes committed by them when they were juveniles has been evaluated in several cases. In Thompson v. Oklahoma, the Court acknowledged that the age of the offender must be an important point of contemplation while deciding on the punishment of an individual. They also validated that less culpability should be attached to a crime committed by a minor as against that same crime committed by an adult.
The case of Gary Graham underlines the issue of executions of minors before Roper’s decision. Gary Grahams was arrested for committing murder while he was still 17. Under Texas law, he was eligible for the death penalty while in other states he would not have been held liable for the death punishment. Texas law did give a reason for the jury to believe, for his age factor, that he may not be dangerous in the future and instead should be given a life sentence. But Graham took an unusual stance in his appeals and stated that his age would make it more likely for him to commit a crime in the future and hence this adds as an aggravating factor contributing to the prospect of a death penalty. Under Texas law finding of a remote possibility of future dangerousness leads to the sentence of death punishment, following this, Graham was executed in 2000, five years before the US Supreme Court banned the execution of juvenile defendants. This Texas law clearly ignored the mitigating and aggravating factors that were taken into consideration by the other states. But these decisions led to the striking down of the law of capital punishment. Because it clearly didn’t take into account the fact that the future dangerousness should not be coupled with his mental retardation.
All the countries that have abolished juvenile execution follow the same belief that juveniles don’t have adequate decision making senses, and therefore should not be treated in the same way as an adult offender. Even though India hasn’t abolished the death penalty for juveniles involved in heinous crimes like child rape, but it ensures that fair trials happen and proper circumstances and evidence are taken into account, so that there is no misappropriation of justice and gross violation of human rights.
It is clear the execution of juveniles is a grave misappropriation of justice and human rights violation. Therefore, every country must try to abolish it and all the abolitionist countries should try that this provision is not misappropriated.
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