Due Process Violations Common in Territory’s Criminal Justice System
August 1, 2011
Hamas should recognize that the death penalty is cruel and inhuman and end it, even for serious national security crimes. At the very least, Hamas should impose a moratorium on capital punishment due to consistent, credible allegations of coerced confessions and other serious due process violations in Gaza.
Joe Stork, deputy Middle East director at Human Rights Watch

(Jerusalem) – The latest executions by Hamas authorities in Gaza highlight the urgency of imposing a moratorium on all executions and investigating due process violations in the Gazan justice system, Human Rights Watch said today.

On the morning of July 26, 2011, Hamas authorities executed by hanging Mahmud Abu Qenas, 58, and his son Rami Abu Qenas, 29. A criminal court in Gaza had convicted the father and son in November 2004 on charges of murder and collaborating with Israel, a Hamas Interior Ministry statement said. The Court of Cassation rejected their appeal on July 14.

“Hamas should recognize that the death penalty is cruel and inhuman and end it, even for serious national security crimes,” said Joe Stork, deputy Middle East director at Human Rights Watch. “At the very least, Hamas should impose a moratorium on capital punishment due to consistent, credible allegations of coerced confessions and other serious due process violations in Gaza.”

The Gaza-based Al-Mezan Center for Human Rights reported that the Interior Ministry granted the family a last meeting with Mahmoud and Rami Abu Qenas at 3 a.m. on July 26. Their bodies were delivered to Al-Shifa hospital in Gaza City at 6 a.m. According to news reports, family members set tires on fire and demonstrated to protest the executions, but Hamas security forces dispersed them.

A Hamas security services website, Al Majd, alleged on July 26 that the two men were involved in the 2003 killing by the Israel Defense Forces of Ra'afat al-Za'anin, a member of the al-Aqsa Brigades, a Palestinian armed group, and the attempted Israeli killing of Hamas leader Abdul Aziz al-Rantisi in 2003. Israeli forces subsequently killed al-Rantisi in 2004, after the Palestinian Authority had arrested Mahmud and Rami Abu Qenas.

The Palestinian Authority controlled Gaza until 2007, when Hamas seized control of the territory.

The two men were convicted of murder and attempted murder under the 1936 British Mandatory Penal Code No. 74, and of collaborating with the enemy and “weakening morale” under Military Order No. 555 issued in 1957 by the Egyptian military governor of Gaza. Taken together, the 1936 and 1957 codes prescribe the death penalty for 15 offenses.

Human Rights Watch was not able to obtain information about the two men’s trial in 2004 or to determine whether there had been any due process violations in their detention, trial, and conviction, although the charge of “weakening morale” is troublingly vague. In many other cases in Gaza, including capital cases, Human Rights Watch has documented serious violations of criminal defendants’ due process and fair trial rights.

In the four years since Hamas took control of the Gaza Strip, courts have imposed 33 death sentences and authorities carried out eight executions, according to the Palestinian Independent Commission for Human Rights. At least nine of the death sentences were issued against defendants in absentia. Hamas authorities executed two men by firing squad on April 15, 2010, three men by hanging on May 18, 2010, and another man by firing squad on May 4, 2011.

Human Rights Watch reviewed the case of the man executed by Hamas authorities on May 4. Abd al-Karim Mohammed Abed Shrair, born in 1974, was killed by a firing squad at 4:30 that morning, after a military appeals court confirmed a lower military court ruling that he had provided information leading to Israeli attacks that killed Hazem Rahim, a member of Islamic Jihad, a Palestinian armed group, and Zaher Nassar, the son of Hamas leader Yassin Nassar.

Shrair’s lawyer had submitted documents appearing to show that on July 17, 2008, authorities arrested Shrair unlawfully, without a warrant. He was detained for a month before being taken before a prosecutor on August 18. During this period the only record of his whereabouts is a confirmation that he was interrogated by Hamas’s internal security forces on August 9.

During that month Hamas security officials denied Shrair access to his family or to a lawyer, and flouted Palestinian legal requirements that a detainee must be presented to a prosecutor within 24 hours and that a judge must independently review the detention within 72 hours. Shrair repeatedly claimed in court that he had been tortured in detention and that an initial confession, which he later retracted, was coerced by torture. The military appeals court’s verdict did not mention any claims regarding Shrair’s alleged arbitrary arrest and detention or torture.

In an earlier case, a military appeals court sentenced Mohammed Ismail to death for treason on November 11, 2009. The court accepted Ismail's confession despite evidence that Hamas security officials coerced the confession under torture, Ismail’s lawyer told Human Rights Watch. The military court exceeded its authority by imposing the death penalty, since the court's authority is limited to confirming or rejecting the sentence of the lower military court, which had sentenced Ismail to life in prison.

Palestinian human rights organizations consistently report that security forces in Gaza arbitrarily arrest, detain, and torture people who are later charged with crimes, including capital offenses, and that courts seldom throw out criminal cases due to such violations.

Human Rights Watch opposes the death penalty in all circumstances as cruel and inhuman punishment.