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Introduction

The prohibition on the death penalty for crimes committed by juvenile offenders—persons under age 18 at the time of the offense—is well established in international treaty and customary law. The overwhelming majority of states comply with this standard: only five states are known to have executed juvenile offenders since January 2005.

In the recent past even the United States (US), a country which in 2005 had 70 juvenile offenders on death row, has implemented the ban on the death penalty for juvenile offenders:  in March 2005 the US Supreme Court ruled the execution of juvenile offenders illegal because it violated the US Constitution’s ban on cruel and unusual punishment.¹

Yet since January 2005 five other states are known to have executed at least 32 juvenile offenders: Iran (26), Saudi Arabia (2), Sudan (2), Pakistan (1), and Yemen (1).² Well over one hundred juvenile offenders—and possibly twice that number—are believed to be on death row, awaiting the outcome of a judicial appeal, or in some murder cases, the outcome of negotiations for pardons in exchange for financial compensation.

Why do a handful of states still execute juvenile offenders when the rest of the world has moved toward full implementation of the prohibition of the juvenile death penalty? In Iran and Saudi Arabia, the two countries that account for the largest number of executions of juvenile offenders, these sentences are the result of deliberate state policies to retain the juvenile death penalty, combined with criminal justice systems that fail to provide children with fundamental protections against unfair trials.

In Sudan, Yemen, and Pakistan, laws prohibiting the death penalty for crimes committed by persons under age 18 are not always implemented. Sudan has yet to clarify conflicting legislation for the north and autonomous south, while Pakistan has yet to issue regulations needed to implement the ban in all parts of its territory. In all three states juvenile offenders are at risk of being treated as adults in capital cases when they lack birth registration or other documents to prove their age at the time of the crime, when the court of first instance does not record their age, or when they lack competent legal assistance at crucial points during arrest and trial.

The Juvenile Death Penalty in International Law

The prohibition on the juvenile death penalty is absolute in international and customary law, and applies even in times of war.³ Both the Convention on the Rights of the Child, with 193 states parties, and the International Covenant on Civil and Political Rights, with 161 states parties, specifically prohibit capital punishment of persons under 18 at the time of the offense.⁴ In 1994 the UN Human Rights Committee stated that it considered the prohibition against executing children to be part of international customary law, and thus not open to reservations.⁵ Regional human rights treaties for Africa, the Americas, and Europe all ban the juvenile death penalty in all circumstances.⁶

Moving Backward: The Juvenile Death Penalty in the Arab Human Rights Charter

The revised Arab Human Rights Charter, of 2004, is unique among regional and international treaties addressing the death penalty in that the ban on the juvenile death penalty in it is not absolute. The Arab Human Rights Charter postdates all other regional human rights treaties, and has been ratified by seven of the 22 members of the League of Arab States.⁷

Article 7(1) of the 2004 Arab Human Rights Charter states “Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime.”⁸ This substantially weakens protections in an earlier version of the charter, adopted in 1994, which had stated simply that “The death penalty shall not be inflicted on a person under 18 years of age.”⁹

In addition to falling short of an absolute ban, Article 7(1) is incompatible with international and customary law because it focuses on age at the time of sentencing or execution, leaving open the possibility that an individual who commits an offense while under age 18 would still be executed after turning 18. In March 2008 members of Saudi Arabia’s National Commission for Childhood and of the Council of Ministers’ committee drafting Saudi Arabia’s first child law told Human Rights Watch that the new law would define a child as anyone under age 18 but that judges could still issue death sentences to juvenile offenders and execution would be postponed until after the child turned 18.¹⁰ Such a law would violate Saudi Arabia’s legal obligation to prohibit the death penalty—which includes issuing death sentences—for persons under age 18 at the time of the offense, regardless of their age at trial, sentencing, or execution.