Hamas Should Fix Broken Justice System, End Death Penalty
August 20, 2013
Imposing the death penalty for a crime committed by a child makes the executions under Gaza’s abusive justice system especially atrocious. If the authorities want to deter criminals, they should make sure people are convicted for what they did, not what they are tortured to confess.
Joe Stork, acting Middle East director

(Jerusalem) – Hamas authorities in the Gaza Strip should halt the planned execution of a prisoner who was a child at the time of a capital offense. Hamas should impose an immediate moratorium on capital punishment, and move toward outright abolition.

In an interview published on August 14, 2013, Gaza’s prosecutor general, Ismail Jaber, said that the Hamas council of ministers had approved the execution of a convict “in the coming days.” Jabr did not name the convict but his description of the case indicates that the man to be executed is Hani Abu Aliyan, 28, whom civil courts in Gaza convicted of two separate capital offenses. Abu Aliyan was 14 at the time of one of the crimes, and his lawyer told Human Rights Watch that Abu Aliyan had confessed under torture. Jabr said that more executions would follow and justified them as mandated by Islamic Sharia law to deter “would-be criminals.”

“Imposing the death penalty for a crime committed by a child makes the executions under Gaza’s abusive justice system especially atrocious,” said Joe Stork, acting Middle East director at Human Rights Watch. “If the authorities want to deter criminals, they should make sure people are convicted for what they did, not what they are tortured to confess.”

Human Rights Watch has previously documented that Hamas authorities in Gaza executed prisoners who were convicted despite severe due process violations and unfair trials. The convictions included cases of prolonged arbitrary detention, credible allegations of torture, and convictions based primarily on coerced confessions.

In his August 14 interview, published on the Gaza Interior Ministry website, Jabr said that a number of officials and others would witness the execution, which would be carried out “in a special place.” He claimed that “the public is very satisfied about [the death penalty]” and that “the only complaints come from some of the human rights organizations.” To these, he said, “we will not pay attention” because “our religious tradition” requires capital punishment as a deterrent. The authorities would carry out other executions “soon,” once appeals in the cases are exhausted, he said.

In separate hearings in May 2010, a first instance court in Khan Yunis sentenced Abu Aliyan to life in prison for killing a boy and 14 years in prison for sexually assaulting him in 2000, and to an additional life sentence for the “involuntary murder” of an acquaintance to whom he owed money in 2009. Human Rights Watch spoke briefly with Abu Aliyan in Gaza’s central prison in September 2012. He told Human Rights Watch that in the 2009 incident, he turned himself in to the police in Khan Yunis after killing the acquaintance, Hazem Ibrahim, during an argument.

The court noted that Abu Aliyan, born in 1985, was a child at the time of the first two offenses and therefore could not be sentenced to death, in accordance with article 13 of Juvenile Offenders Law of 1937. Abu Aliyan’s lawyer, Ghazi Abu Warda, contended that his client had confessed to the crime under torture, but the court refused to exclude the confession, Abu Warda told Human Rights Watch. “There were scars and bruises on his body,” Abu Warda said. The prosecutor general’s office appealed both sentences as too lenient.

The appeal court sentenced Abu Aliyan to death for both killings in September 2012, and the Court of Cassation, Gaza’s highest court, upheld the sentences in July 2013.

If the Gaza government were to execute a person who was 14 at the time of his crime, it would not only be violating its own law, it would also join the tiny handful of countries that still execute child offenders, Human Rights Watch said. Only four countries – Yemen, Sudan, Iran, and Saudi Arabia – are known to have executed child offenders in the last five years.

The Hamas-run Gaza government is not internationally recognized as a state and therefore cannot ratify international human rights treaties, but it has repeatedly pledged to uphold human rights standards. The Convention on the Right of the Child and the International Covenant on Civil and Political Rights specifically prohibit death sentences for anyone who was under 18 at the time of the offense.

The Independent Commission for Human Rights, the official Palestinian rights ombudsman, which monitors violations by the Palestinian Authority in the West Bank and the Hamas authorities in Gaza, provided Human Rights Watch with a list of 36 people sentenced to death in Gaza from February 2010 to June 2013. Of the total, Gaza authorities have executed at least six men. Another five were sentenced by military courts in absentia. Gunmen who have so far escaped punishment publicly murdered seven of the others, who were last seen in custody, in November 2012.

Human Right Watch believes that 14 of the men on the list are currently awaiting appeals hearings, and two are on death row with no further appeals, including Abu Aliyan and Jamil Zakariya Juha, 27. On December 6, 2010, a military court sentenced Juha to death for being an accessory to murder during fighting between Fatah and Hamas in Gaza in 2007. The Gaza military appeals court upheld the sentence on February 14, 2012. Hamas authorities should convert Abu Aliyan’s and Juha’s sentences to prison terms, Human Rights Watch said.

A military appeals court is scheduled on August 28 to hear defense witnesses in the case of one of the 14 prisoners, Faraj `Abd Rabu, 27, whom a military court sentenced to death for collaborating with the enemy and being an accessory to murder, on March 24, 2013. Abu Warda, who also represents `Abd Rabu, told Human Rights Watch that his client said he was tortured in custody by the Internal Security Service.

The lawyer said that he did not observe bruises or other evidence of torture on `Abd Rabu’s body, but that inconsistencies in his client’s confession indicated that it was made under coercion.

Hamas authorities have executed at least 16 men in Gaza since 2010, according to the Independent Commission for Human Rights and cases documented by Human Rights Watch. 

Gaza authorities have executed at least three of the 24 men sentenced to death by military courts since 2010. On June 22, 2013, the Interior Ministry executed Emad Mahmoud Abu Ghalyon and Hossein Yusif al-Khatib, for collaboration with the enemy. According to Amnesty International, al-Khatib “reportedly confessed after being tortured.” On April 7, 2012, authorities executed by hanging Walid Khaled Ismail Jerbo`a, for treason and complicity in murder.

Gaza authorities have also executed at least three of the 12 men sentenced to death by civilian courts, including Na’el Jamal Qandil Doghmosh, on July 17, 2012, allegedly after “confessing” under torture by police investigators. On April 7, 2012, the Interior Ministry executed by hanging Mohammed Baraka, 49, for murder, and Mohamed Jamil `Abdin, 20, for raping and killing a child.