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MIDEAST: Palestinian Death Penalty Very Much Alive

Mel Frykberg

RAMALLAH, Mar 30 2010 (IPS) - Last November, Muhammad Al Saba, 36, from Rafah in the southern Gaza Strip was sentenced to death by hanging by a military court in Gaza for alleged acts of “treason and collaborating with hostile forces.”

Al Saba is one of 17 Palestinians, 14 in Gaza and three in the West Bank, sentenced to death in 2009, and currently languishing in prisons across the occupied Palestinian territories.

Military or state security courts in both the Palestinian Authority (PA) controlled West Bank and the Hamas controlled Gaza Strip continue to sentence Palestinians to death at an alarming rate, despite calls from international and regional human rights organisations for a complete moratorium.

Of particular concern to the rights groups is the significant number of Palestinians sentenced to death for allegedly collaborating with a rival Palestinian faction as well as the broad number of offences for which capital punishment can be meted out.

“Executing prisoners convicted in unfair trials would only undermine Abu Mazen’s [PA President Mahmoud Abbas’ nickname] attempt to bolster his ‘law and order’ credentials,” says Sarah Leah Whitson, Middle East director of Human Rights Watch.

“To ensure the rule of law and security for Palestinians, the PA needs to establish an independent judiciary that respects due process,” adds Whitson.

“On a practical level it is imperative that Abu Mazen refuse to ratify the death warrants as they can’t be carried out in the West Bank without his consent,” Sarit Michaeli from Israeli rights group B’tselem told IPS.

The Palestinian Centre for Human Rights (PCHR) in Gaza has repeatedly called upon the PA to announce a complete moratorium on the use of the death penalty, “which violates the Universal Declaration of Human Rights (1948), the Covenant of Civil and Political Rights (1986), and the UN Convention against Torture (1984).”

“The PA asserted in its temporary constitution of 1997, and its amended version of 2003, its commitment to work – without delay – to join international and regional instruments that protect human rights, and that it would respect all international human rights,” Jaber Wishah from PCHR told IPS.

“Although only a few of the West Bank sentences are carried out as Abbas doesn’t sign the orders, the judicial system and sentencing procedures haven’t improved. We continue to struggle with other human rights groups to get the PA to change its laws,” Wishah added.

The death penalty is applied in accordance with article 37 of the Penal Law of 1936 applicable in the Gaza Strip, and article 14 of the Jordanian Penal Law of 1960 applicable in the West Bank.

Many of the death sentences are also passed on the basis of the 1979 Revolutionary Penal Code of the Palestine Liberation Organisation and are carried out by the state security courts without due process.

These state security courts were established by a presidential decree by the late Yasser Arafat in 1995 without determining their mandates or the nature of the cases to be considered by them.

Human rights activists argue that the trials are summary, the accused are not given time to prepare a defence and are denied access to effective legal counsel.

Sentences issued by these courts, even death sentences, cannot be appealed to a higher body.

“Furthermore, the revolutionary penal code is unconstitutional and has not been approved by the Palestinian Legislative Council (PLC),” Wishah told IPS.

But the PLC has been frozen since the 2007 infighting between Hamas and the Fatah-affiliated PA divided the Gaza Strip from the West Bank politically and split the judiciary between Hamas and the PA.

During the seventies the Israeli military occupation brought a temporary stay on capital punishment in the Palestinian territories as Israel does not have the death penalty.

“The death penalty was abolished under an Israeli military order when Israel controlled the West Bank’s legal system,” says Ramallah-based Thuraya Judi Alwazir, one of the few female judges sitting on the PA’s Judicial Authority.

“The current civil and criminal courts of the PA still can’t implement the death penalty. The death sentences that have been handed out here are by PA military courts,” Alwazir told IPS.

“We have a problem with this and want to limit the jurisdiction of the military courts and return the trial of civilians guilty of treason, and other offences warranting capital punishment, to the civilian courts.

“A draft bill to this effect is currently before PA President Abbas,” adds Alwazir.

But ironically, despite international pressure, an inactive PLC, the current split between the judiciaries of Hamas and Fatah, and a pledge by the PA to respect international law, the lack of Palestinian political will may also be a significant factor in no moratorium being passed.

“Actually we are discussing the return of the death penalty to the civil courts. This is consistent with our Islamic beliefs and this is also supported by a number of religious leaders. It is not the place of the international community to impose its value system on us,” Alwazir told IPS.

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