Hamas Threatens First Use of Death Penalty in Gaza in 5 Years, Despite Unfair Trials
April 6, 2010
We are dealing here with convictions in trials that don’t come close to meeting fair trial standards. Hamas authorities should not take the backward step of starting to impose the death penalty, especially when people facing execution have suffered unfair trials.
Joe Stork, deputy Middle East director at Human Rights Watch.

(Jerusalem) - Hamas authorities should rescind a recent announcement that they intend to resume application of the death penalty in Gaza, which has not been carried out there since 2005, Human Rights Watch said today. The death penalty, which in Gaza would be carried out by firing squad or hanging, is inherently cruel and inhuman, and the death sentences handed down by Hamas military courts violate fair trial standards, Human Rights Watch said.

Most of those facing the death penalty in Gaza are affiliated with the rival Fatah movement or are people whom Hamas military courts have convicted of collaborating with Israel. On March 24, 2010, the Hamas interior minister, Fathi Hammad, stated that the Gaza authorities would implement the death penalty in "the near future" against "agents [of Israel] who have been sentenced to death, regardless of the position of rights groups that reject these kinds of sentences."

"We are dealing here with convictions in trials that don't come close to meeting fair trial standards," said Joe Stork, deputy Middle East director at Human Rights Watch. "Hamas authorities should not take the backward step of starting to impose the death penalty, especially when people facing execution have suffered unfair trials."

Hamas-run military courts in Gaza sentenced 16 people to death in 2009 and so far this year, including eight convicted of treason.   Nine of the 16 risk imminent execution; the other seven sentences were delivered against defendants in absentia. In addition, a Hamas-run civil court sentenced a 17th man to death last year.

Under Palestinian law, the Palestinian Authority (PA) president must ratify death sentences before they can be carried out. Hamas, which is in conflict with the West Bank-based PA government of President Mahmoud Abbas, announced in May 2009 that it was establishing a committee of legal advisers and officials in the Hamas Ministry of Justice to ratify death sentences.

The Hamas attorney-general, Mohammed Abed, said on March 28 that the military courts's final rulings should be implemented, notwithstanding that President Abbas did not approve them before the end of his official term in January 2009. Abbas continues to serve after announcing that he was extending his term pending new presidential elections, currently planned for June 2010 - a move that Hamas has disputed. Abed contended that because Abbas's official term has expired, presidential approval is not required to carry out death sentences that the courts have issued against persons convicted of collaboration with Israel or of intentional killing.

Abed said that drug dealers should also be executed, although Gaza courts have not issued any death sentences for crimes related to drugs. Gaza authorities enacted a law that provides the death penalty for certain drug crimes in December 2009.

Human Rights Watch views the death penalty as an inherently cruel and inhuman punishment.    In December 2007, the United Nations General Assembly called for a worldwide moratorium on the use of the death penalty.

In many of the Gaza cases, the death penalty was imposed based on laws and trial procedures that do not meet minimum international standards.

For example, a lawyer who has represented defendants before the military courts told Human Rights Watch that on November 11, 2009, the high military court in Gaza, which hears appeals, sentenced his client, Mohammed Ismail, to death for treason, partly on the basis of Ismail's confession, despite evidence that Hamas security officials coerced the confession under torture.

The lawyer, who asked not to be identified, also said that the high court exceeded its authority by imposing the death penalty, noting that the court's authority is limited to confirming or rejecting the sentence of the lower military court. That court had sentenced Ismail to life in prison after one of its three judges found Ismail not guilty of treason. Military courts can apply the death penalty only in the case of a unanimous verdict.

Another person familiar with military court trials in Gaza told Human Rights Watch that detainees in the military judicial system do not get regular access to their lawyers until their interrogation is completed and they are sent to the central prison. This person, who also asked not to be identified, had seen some improvements in fair trial standards by military courts, noting that "the head judge now allows defense lawyers to present evidence." Human Rights Watch could not determine whether defense lawyers were prevented from presenting evidence in any of the 16 military court cases that led to death sentences in 2009 and 2010.

The selectivity of death sentences in Gaza also raises concerns about prosecutions being pursued for political reasons. Eight of the 14 capital cases tried in 2009 involved defendants affiliated with Fatah, which Hamas violently expelled from Gaza in 2007.

For example, in April 2009, the military court issued death sentences (in absentia) against four members of the Preventive Security Forces, for killing a Hamas cleric in 2006, at a time when it was dominated by Fatah. Since Hamas's 2007 takeover of Gaza, Fatah no longer controls any security forces there. In May 2009, a military court sentenced three Fatah-affiliated people to death, two of them in absentia, for killing journalists working at a pro-Hamas newspaper in May 2007.

In contrast, Human Rights Watch is not aware of any case in which Hamas military courts have prosecuted Hamas members for unlawfully killing Fatah rivals. Human Rights Watch documented many such killings prior to and during Hamas's 2007 takeover of Gaza, and documented a further 32 cases in which masked gunmen apparently affiliated with Hamas extrajudicially executed alleged collaborators during and after Israel's military offensive in December 2008 and January 2009.

Military court jurisdiction should extend only to military personnel, but 5 of the 16 people sentenced to death by military courts since 2009 were civilians.

Palestinian law imposing the death penalty suffers from serious problems well beyond the particular cases of the people sentenced to death so far. For example, international law requires that, even where the death penalty is permitted, its use be restricted to the most serious crimes.   However, in both Gaza and the West Bank, military courts apply the Palestine Liberation Organization (PLO) Revolutionary Penal Code of 1979. The code allows the death penalty for 42 separate offenses, including several that fall well outside of the international standard of "the most serious crimes," although all of the 16 people sentenced to death under the PLO penal code in 2009 and 2010 were convicted of murder or treason.

Some articles of the PLO penal code that carry the death penalty criminalize political crimes that have nothing to do with security or are so vaguely defined as to violate the international   requirement that a crime must be defined with sufficient clarity to allow an accused person to know what actions construe criminal activity, and to defend himself or herself against charges. For example, penal code article 165 applies capital punishment for any crime that "incites people" and "harms the reputation or prestige of the Palestinian revolution."

The Palestinian parliament never ratified the PLO Penal Code applied by military courts in Gaza and the West Bank, which means that the Code itself and the death sentences handed down according to its provisions are unconstitutional under the Palestinian Basic Law.

Two of the 16 death sentences by Hamas military courts were issued in 2010. Basel Zourob was sentenced to death (in absentia) on February 22 for treason and aiding and abetting intentional killing, and Naim Ashour was sentenced on March 3 for aiding and abetting intentional killing, according to the website of the military judiciary.

In addition to death sentences by military courts, a civilian court in Gaza recently issued a death sentence for the first time since Hamas took control. On February 22, the Hamas-run civilian court of first instance sentenced to death Osama Zeidan al-Ghoul, 30, for murdering a Christian jewel dealer, Akram Issa Al'amsh. Muhammad Taleb, al-Ghoul's lawyer, told Human Rights Watch that the court granted the prosecution 10 sessions to present its evidence but allowed the defense only one hearing and refused his request for further sessions, preventing him from presenting an adequate defense.

Civil courts in Gaza apply the death penalty under the 1936 Penal Law No. 74, dating from the British mandate. In the West Bank, the PA's civil courts impose capital punishment under the 1960 Jordanian Penal Law No. 16, which dates from Jordan's occupation of the West Bank.

Hamas has not carried out any judicially ordered death sentences since winning parliamentary elections in 2006. The last executions carried out in Gaza occurred in 2005, when the Fatah-dominated Palestinian Authority hanged four men and executed another man by firing squad after convicting them of murder. While the PA has not carried out death sentences in the West Bank since that time, military courts in the PA-run West Bank handed down three capital sentences in 2009, including on December 9, against men charged with "collaboration with the enemy" under the PLO Revolutionary Penal Law, according to the Palestinian Independent Commission for Human Rights, an official human rights agency. Those sentences have not yet been carried out.

The PA, for its part, has failed to prosecute members of its security services responsible for serious abuses against Hamas members in Gaza and the West Bank, including the alleged deaths following torture of three men in PA custody in the West Bank in 2009. Neither the PA nor Hamas has tried members of their respective security services for committing torture, despite numerous complaints of such torture documented by Human Rights Watch and others.

In Gaza, military court verdicts are automatically appealed to a high military court, which issued the decision in the case of Mohammed Ismail, one of the 14 death sentences handed down in 2009. Human Rights Watch is not aware of the appeal status of the other 13 death sentences from 2009 or the two handed down in 2010.