IV. International and Yemeni Law

The Convention on the Rights of the Child (CRC), an international treaty with 193 member countries—including Yemen—and the International Covenant on Civil and Political Rights (ICCPR), with 161 member countries—also including Yemen—specifically prohibit the death penalty for persons under 18 at the time of the offense.[45]

In 1994 the Human Rights Committee—the international body of experts that interprets the ICCPR—stated that it considered the prohibition against executing children to be part of customary international law, and thus binding on all states.[46]

In its General Comment No. 10, the UN Committee on the Rights of the Child—the international expert body that interprets the CRC—states that within the juvenile justice system, “if there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.”[47] This prescription bears particular weight in death penalty cases, given the absolute prohibition on juvenile executions under the convention.

In 1994 Yemen amended its Penal Code to abolish the death penalty for persons under the age of 18, and stipulated a maximum penalty of 10 years’ imprisonment for those who commit capital offenses.[48] Article 31 of the Penal Code states:

Any person who has not reached the age of 7 is not accountable at the time of the act that constituted the crime. If the crime was perpetrated by a minor who has reached the age of 7, but still has not reached the age of 15, the judge may order any of the arrangements stipulated in the Law of Juveniles in lieu of the normal punishment for the crime. If the perpetrator has reached the age of 15 but not 18, the individual shall be sentenced to a maximum of half the punishment set forth in law. If the sentence was the death penalty, the individual shall be punished by imprisonment for a minimum of 3 years up to a maximum of 10 years.  In all cases, imprisonment shall be carried out in special facilities, subject to appropriate treatment of the indicted juveniles. No minor shall bear full criminal responsibility, unless the individual has reached the age of 18 years old at the time of committing the crime. If the age of the defendant is not easily determined, the judge may estimate it with the assistance of an expert’s council.[49] 

This law, however, does not clarify how the determinations should be conducted, nor does it require that defendants receive the benefit of the doubt if their age is in question. According to nongovernmental organizations working on juvenile justice in Yemen, the country lacks adequate forensic facilities with staff trained in conducting age determinations.

Yemen retains the death penalty for a wide variety of offenses, among them murder of a Muslim, arson or explosion, endangering transport and communications, apostasy, robbery, prostitution, adultery, and consensual sex between adults of the same sex.[50]

Before the death sentence can be carried out against an individual, the president must ratify the sentence and issue a decree.[51] The president may also issue a decree for an alternative punishment or exempt the sentenced defendant.[52] Once the presidential decree has been issued, the general prosecutor will issue an order confirming that the president has issued the necessary decree, and that the required legal procedures have been fulfilled.[53]

The death sentence can be carried out through beheading by sword, shooting, or stoning.[54]

Yemen’s current child protection law, Law No. 24 of 1991 as amended by Law No. 26 of 1997 (the Juvenile Welfare Law), only requires courts to refer children 15 years of age and younger to the juvenile court system and provides for their detention in juvenile facilities.[55] However, the current parliamentary agenda includes a proposed amendment to the law, including an article that would expand the jurisdiction of Yemen’s juvenile courts to all individuals under 18 years of age, rather than the current law, which limits jurisdiction to children 15 years old and younger. Sending juvenile offenders before child courts should allow them to be sentenced by judges whose mandate would be to sentence juveniles within the bounds of the reduced penalties prescribed by Yemen’s criminal law.

In 2009 Yemen’s human rights record was examined as part of the Universal Periodic Review process at the UN Human Rights Council in Geneva. At the review, the government stated that executions of juvenile offenders “do not exist and have no place in legislation or the judicial system.”[56] Yemen did, however, support a recommendation from Denmark to remove juvenile prisoners from death row,[57] and a recommendation from Austria to raise the legal age of criminal responsibility, develop alternative sentences for juvenile offenders, and ensure that prison for offenders under 18 is used only as a last resort.[58]