ON 5/18/20 AT 1:55 PM EDT
On Sunday, April 26, the Kingdom’s Human Rights Commission announced that, by royal decree, people convicted of childhood offences will no longer be subject to the death penalty. This was reported everywhere, from CNN to BBC News. There’s one small problem: it isn’t true.
“This is an important day for Saudi Arabia made possible by King Salman and the Crown Prince Muhammad bin Salman,” Commission President Awwad Alawwad declared, in the groveling tone demanded by absolute rulers. For two days, the news was posted in English, but not Arabic: a giveaway that it is intended for Western media rather than Saudi officials.
There are currently 13 people facing death sentences in Saudi Arabia for offenses they are alleged to have committed as children, including my former client Ali al-Nimr, who was tortured into confessing to acts of terrorism after chanting anti-government slogans as a schoolboy in 2012.
Ten days have passed since the announcement. The decree has not been published. No death sentences have been commuted. Four young men, including Ali, remain at imminent risk of execution, one death sentence is being appealed, and prosecutors are seeking the death penalty in eight more juvenile cases. Tell me, how is this “eliminating” capital punishment for children?
The decree makes most sense as a political gesture. On April 23, media stories marked the first anniversary of a mass execution of 37 men, including three who were children at the time of their alleged offenses. The wife of my former client Abbas al-Hassan lamented that she has been unable to mourn because Saudi authorities will not give back his body. The mother of Mujtaba al-Sweikat, executed for attending peaceful protests when he was 17, shared the pain of losing her son.
The “reformer prince” image that persuaded Oprah and Bill Gates to host MBS two years ago has been permanently tarnished by the state-ordered assassination of journalist Jamal Khashoggi, but Saudi Arabia’s international partners are still taken in by spin. Remember the Crown Prince’s 2018 promise to “minimize” use of the death penalty? The following year was the bloodiest in recent memory: 185 lives were ended by the executioner’s blade.
As a defense attorney in Saudi Arabia, you learn to read the small print. Two years ago, a Juvenile Law was passed, theoretically ending death sentences for children and restricting punishment to ten years in juvenile detention. In practice, a loophole has enabled prosecutors to seek death sentences against children by charging them with hudud and qisas offenses under Shari’a law. Hudud offenses are those defined by the interpretation of the Shari’a favored in Saudi Arabia; In Qisas offenses, the death penalty is sought by way of retribution. The designation of an offense as hudud, qisas or ta’zir is at the discretion of the judge.
Although the new decree has not been published—an odd oversight for such a supposedly momentous change in the law—an unofficial version has been posted online. The devil in the detail can be found in paragraph one, which only appears to protect child defendants sentenced to death under ta’zir.
This is not an abstract legal issue: in one current case, five young men face death sentences for alleged hudud crimes that occurred before they were 18 years old. The youngest, Muhammad al-Faraj, was just 15 when they were arrested in June 2017. On his charge sheet, he is accused of supporting a terrorist group by attending a funeral, aged nine.
Muhammad was taken to Al-Mabahith adult prison in Dammam and held in solitary confinement for two months. He was slapped, punched, kicked and forced to stand for hours with his hands shackled above his head, to extract a confession.
The echoes of Ali al-Nimr’s case disturb me profoundly. He too was severely beaten, isolated from his family, denied a lawyer, and tortured until he confessed to crimes of disobedience punishable by death. He has been on death row for eight years now, and could be executed at any time.
So forgive me if I am skeptical of the Human Rights Commission’s claim that the new decree heralds “a more modern penal code”. They are briefing journalists that it will be applied retroactively to prisoners convicted of ta’zir offenses, such as Ali, but I will believe it when it happens.