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.
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). 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. 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. 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. Regional human rights treaties for Africa, the Americas, and Europe all ban the juvenile death penalty in all circumstances.
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.
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." 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."
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. 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.
Iran is a state party to both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child,while Saudi Arabia is a state party to the Convention on the Rights of the Child.Despite this, judges in both Iran and Saudi Arabia can impose the death penalty in capital cases if the defendant has attained his or her majority (a concept based on puberty). In some cases these determinations are made at the time of trial, rather than at the time of the offense.
In 2007 Iran executed at least 317 people, including eight juvenile offenders; Saudi Arabia executed at least 158 people, including at least two juvenile offenders. At the time of writing Iran is known to have executed at least six juvenile offenders in 2008, and over 130 other juvenile offenders are under sentence of death.
Iranian Legislation and Practice
Iran retains the death penalty for a large number of offenses, among them cursing the Prophet, certain drug offenses, murder, and certain hadd crimes, including adultery, incest, rape, fornication, drinking alcohol, "sodomy," same-sex sexual conduct between men without penetration, lesbianism, "being at enmity with God" (mohareb), and "corruption on earth" (mofsed fil arz).
Article 49 of the Islamic Penal Code exempts children from criminal responsibility. However, the article's accompanying note defines a child as someone who has not reached the age of puberty (bulugh) as stipulated by the Sharia and as specified in the 1991 Civil Code as 15 lunar years for boys and 9 lunar years for girls.
The majority of juvenile executions in Iran are for hadd crimes or for intentional murder. Intentional murder, which includes "cases where the murderer intentionally makes an action that is inherently lethal, even if he does not intend to kill the victim," is considered to be a crime punishable by retribution in kind (qisas-e-nafs). While the judiciary is responsible for carrying out the trial and implementing the sentence in qisas cases, Iranian law treats these cases as private disputes between two civil parties, where the state facilitates the resolution of the dispute. The victim's survivors retain the right to claim retribution in kind, to pardon the killer, or to accept compensation in exchange for giving up the right to claim retribution.
In July 2006 the Iranian parliament gave an initial reading to a draft Juvenile Crimes Investigation Act that officials have said would end executions for juvenile offenders, but which actually still leaves judges with discretion to sentence juvenile offenders to death. Article 31(3) of the proposed law would allow but not require judges to reduce a sentence of death or life imprisonment against juvenile defendants ages 15 to 18 to a term of imprisonment ranging from two to eight years in a juvenile correctional facility. In addition, article 33 of the proposed legislation makes clear that reduction of sentences in qisas and hadd crimes shall be applied only when the judge determines that "the complete mental maturity of the defendant is in doubt."
The Case of Seyyed Reza Hejazi
On August 19, 2008 the Iranian authorities executed Seyyed Reza Hejazi at Isfahan Central Prison for his role in a murder committed in 2003, when he was 15, and thus an adult under Iranian but not international law. The authorities did not notify Hejazi's lawyer 48 hours prior to the execution, as required by Iranian law. Instead, his lawyer only learned of the pending execution from a journalist the night before, who had heard that Hejazi would be executed at 4 am the following morning. Hejazi's lawyer immediately left Tehran for Isfahan, and arrived at the prison before the scheduled execution. However, prison authorities did not allow him to see his client, and he left the prison at 10 am after prison officials assured him that Hejazi's execution had been stayed. However, upon returning to Tehran the lawyer learned that authorities had executed Hejazi at 11 am.
Hejazi was tried as an adult by Branch 106 of the Isfahan General Court and sentenced to death on November 14, 2005, for his role in a death resulting from a September 2003 fight involving several people. According to his lawyer, Hejazi alleged that he was attempting to separate a group of his friends during a fight when one of them punched him in the face. Hejazi then took out a knife and stabbed the man in the chest, and the man later died in hospital. Hejazi repeatedly stated that he did not intend to kill the victim. Nevertheless the judge did not encourage the victim's family to pardon Hejazi or accept compensation for the killing, and Branch 28 of the National Supreme Court upheld the death sentence on June 6, 2006.
Saudi Arabian Legislation and Practice
The Saudi government does not publish an official interpretation of Sharia, a written penal code, or aninterpretative text carrying the force of law of the precise definitions of acts that constitute criminal offenses. As a result, judges have broad discretion in determining what acts are crimes and setting sentences, and courts impose the death penalty for a broad variety of offenses. Capital offenses include adultery, apostasy, "corruption on earth," drug trafficking, sabotage, (political) rebellion, and murder during armed robbery.Under interpretations of Sharia prevailing in Saudi Arabia,murder and manslaughter are considered to be primarily offenses against a private right (qisas). Thus, while courts often impose the death penalty for murder or manslaughter, in these qisas cases the deceased's family retains the right to insist on execution, accept monetary compensation, or issue a pardon. The court can also impose the death penalty as a discretionary punishment (ta'zir ) for any other actions it deems to be criminal.
Saudi Arabia has set but does not effectively enforce 12 years as the minimum age of criminal responsibility for boys. The minimum age of criminal responsibility does not apply in qisas cases, or in cases involving girls. In addition, Saudi Arabia has no law specifying when a child of either sex should be treated as an adult in criminal cases, and no law requiring judges to assess a child on his or her characteristics at the time of the offense nor at the time of trial, sentencing, or execution of sentence.
In practice, judges base determinations of majority (bulugh) in qisas cases on the defendant's physical characteristics. According to a 2002 Council of Senior Scholars decree, majority in qisas cases is obtained when any one of four conditions are met: for males or females, 1) attaining 15 years of age; 2) occurrence of wet dreams (al-ihtilam); 3) appearance of pubic hair; or, in the case of girls, 4) upon menstruation.
The Case of Mu`id bin Husayn bin Abu al-Qasim bin `Ali Hakami
Mu`id bin Husayn bin Abu al-Qasim bin `Ali Hakami was executed on July 10, 2007, for a murder he allegedly committed three years earlier, when he was 13 years old. According to Hakami's father, the authorities violated Saudi Arabian laws governing investigation, trial, and execution: authorities prevented him from attending his son's interrogation, which was held at a police station and not a juvenile detention center, did not allow him to attend the trial, did not inform him of the execution until days later, and have not returned his son's body. As of this writing the Board of Grievances had twice postponed hearing the complaint brought by the family against the Ministry of Interior's Department of Public Security.
Unlike Iran, Saudi Arabia has only a handful of lawyers specializing in criminal defense cases, and much less is known about the number of persons sentenced to death for crimes committed while children. Investigations conducted by Saudi Arabian journalists suggest that a significant number of children have been or are at risk of being sentenced to death. For example, an October 2006 investigation of the Jeddah Social Observation Home by ArabNews that included interviews with the director and detainees reported that 40 of the 220 detainees were boys under age 16 charged with murder. In November 2005 alarabiya.net, the online arm of Saudi Arabia'sal-`Arabiya satellite news station, reported that Saudi Arabia's Ministry of Social Affairs held 126 children in juvenile detention centers "for committing murder."
Sudan and Pakistan are states parties to the Convention on the Rights of the Child; Sudan is also a state party to the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights, and Pakistan has signed but not yet ratified the covenant.
Sudan's 2004 Child Law sets reduced sentences for children age 15 to 18 who commit capital offenses. However, this law is not consistent with Sudan's 2005 Interim Constitution, which allows for the death penalty against persons under age 18 in qisas and hadd cases, nor with provisions of the 1991 Penal Code, which allows judges to try as adults children over age 15 who show signs of puberty.
In July 2000 Pakistan issued a Juvenile Justice System Ordinance banning the death penalty for crimes committed by persons under 18, but the ordinance requires juvenile courts and other mechanisms not provided for by law in all parts of Pakistan, leaving juvenile offenders at risk of trial as adults in capital cases.
Children's ability to benefit from the Sudanese and Pakistani legislation is further limited by low rates of birth registration-64 percent for Sudan and 29.5 percent for Pakistan-which make it difficult for juvenile offenders to prove their age at the time of the crime. 
Sudanese Legislation and Practice
Under the 2005 Interim National Constitution, applicable in all parts of the country, Sudan retains the death penalty for hadd, qisas, and "extremely serious" crimes, although it excludes persons under 18 or over 70 years of age from execution in cases other than hadd and qisas. Under the 1991 Penal Code, applicable in all parts of Sudan, hadd crimes punishable by execution include waging war against the state, espionage, apostasy, adultery, sodomy, running a place of prostitution, and armed robbery resulting in death or rape. Intentional murder is a qisas offense punishable by execution, and includes killings resulting from an intentional act that was likely to result in death.
The 2004 Child Law applicable in all parts of Sudan states that as a matter of principle courts should not sentence children to death, and sets a maximum sentence of ten years' detention in a juvenile reformatory for capital offenses committed by persons age 15 to 18. However, the Child Law also specifies that a child is someone under age 18, "unless the applicable law stipulates that the child has reached maturity." This raises the possibility that a person under 18 could still be sentenced to death under the 1991 Penal Code. Article 9 of the Penal Code links criminal responsibility to attaining puberty, and article 3 defines an adult as "a person whose puberty has been established by definite natural features and who has completed 15 years of age … [or] attained 18 years of age … even if the features of puberty do not appear." The 2004 Child Law also lacks clarity on when children over 15 can benefit from the specialized courts and other juvenile justice protections created under the 2004 Child Law, and in practice few juvenile courts exist.
The 2005 Interim Constitution of Southern Sudan banned the death penalty for persons under 18 without resolving the contradiction with the juvenile death penalty provision in the Interim National Constitution. The Southern Sudan Legislative Assembly has yet to finalize a draft Child Code that would ban the juvenile death penalty.
Since 1990, Sudan is known to have executed two juvenile offenders, Mohammed Jamal Gesmallah and Imad Ali Abdullah, on August 31, 2005. However, Human Rights Watch is aware of at least 6 other cases of persons sentenced to death who are believed to have been under 18 at the time of the alleged offense.
The Case of Kamal Hassan `Abd al-Rahman
Kamal Hassan `Abd al-Rahman is currently on death row, awaiting the outcome of an appeal to the Constitutional Court challenging the constitutionality of the death sentence issued against him for a crime committed when he was 15 years old.
The Port Sudan Criminal Court sentenced `Abd al-Rahman to death for a murder committed on March 11, 2004, when he was about 15 years old. According to his lawyer, the Port Sudan Criminal Court rejected the defense's argument at the initial hearing on June 22, 2004 that `Abd al-Rahman was 15 years old and should be transferred to a juvenile court, as required by Sudanese law. Instead, the court determined that the boy was an adult based on a doctor's written testimony that the boy showed signs of puberty.
On August 5, 2006, the High Court returned the case to the Port Sudan Criminal Court with instructions that it order a forensic age determination. A September 2006 age determination that found `Abd al-Rahman to be between 18 and 20 years old at the time of the determination. As such, he would have been under 18 at the time of the crime and should have been tried as a juvenile and benefited from a reduced sentence, a factor that the court does not appear to have taken into account. The defense also submitted testimony that neither of the age determinations used by the court were forensic examinations, as the first was based on puberty and the second was performed by a dentist and not a forensic panel. However, the judge rejected the defense argument, saying that age determination did not require special expertise.
Pakistani Legislation and Practice
Pakistan retains the death penalty for 26 offenses, including murder, which is considered a qisas offense, and blasphemy, arms trading, drug trafficking, armed robbery, stripping a woman of her clothes in public, extramarital sex, and rape. The Juvenile Justice System Ordinance of 2000 bans the death penalty for crimes committed by persons under 18 at the time of the offense, and requires juvenile courts to order a medical examination when a defendant's age is in doubt. The ordinance was extended to apply to Azad Jammu and Kashmir in 2003, and to the Provincially Administered Tribal Areas and the Federally Administered Tribal Areas in late 2004. However, implementation remains very limited because many parts of the country lack the courts and other structures called for in the law. In its 2007 annual report, the Human Rights Commission of Pakistan reported that the ordinance "remained un-implemented in most of the country," noting that Sindh still lacked a juvenile court and the government had given no directives for implementing the ordinance in the Federally Administered Tribal Areas. Pakistan's Supreme Court sometimes rejected death penalty appeals by juvenile offenders when their age was not recorded at the time of the original trial.
A 2001 Presidential Commutation Order commuted death sentences against juvenile offenders issued prior to December 17, 2001 to life imprisonment, but the order excluded juvenile offenders sentenced for qisas or hadd crimes.
Pakistan is known to have executed at least one juvenile offender since 2005, Mutabar Khan, executed on June 13, 2006. According to a 2007 joint study by FIDH and the Human Rights Commission of Pakistan, as of March 2006, authorities of Mach Central Jail acknowledged holding two juvenile offenders sentenced to death, one a 14-year-old and one who had been found to be 17 at the time of the offense.
The Case of Mutaber Khan
Pakistani authorities hanged Mutabar Khan in Peshawar Central Prison on June 13, 2006.  A trial court in Swabi had sentenced him to death on October 6, 1998 for the April 1996 murder of five people. During his appeal he provided the court with a school-leaving certificate to support his claim that he was 16 at the time of the killings, and argued that authorities knew he was a juvenile because they held him in the juvenile wing of the Peshawar Central Prison for two years. The Peshawar High Court and the Supreme Court both rejected his appeal, on the grounds that the 2001 Presidential Commutation Order did not apply because his age had not been recorded at trial.
Yemen is a state party to the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Yemen's Penal Code provides reduced sentences for crimes committed by persons under 18, including capital offenses. Yemen's very low birth registration rate makes it difficult for many juvenile offenders to prove their age at the time of the offense, and in these situations courts sometimes sentence to death persons under age 18 at the time of the crime. In February 2007, Yemen executed Adil Muhammad Saif al-Ma'amari for a crime allegedly committed when he was 16. At least 18 other juvenile offenders are believed to be on death row.
Yemeni Legislation and Practice
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 homosexuality. In 1994 Yemen amended its Penal Code to require reduced sentences for crimes committed by persons under 18, including a maximum penalty of ten years' imprisonment for those who commit capital offenses. However, Yemen lacks adequate mechanisms for determining ages of defendants who lack birth certificates, including adequate forensic facilities with staff trained in conducting age determinations.
The Case of Adil Muhammad Saif al-Ma'amari
Since 1993, Yemen is only known to have executed one juvenile offender, Adil Muhammad Saif al-Ma'amari, in February 2007. A court in Rawna sentenced al-Ma'amari to death on October 19, 2002 for the murder of a relative in an argument when he was 16. Al-Ma'amari alleged that police tortured him until he confessed to the murder, and told the court that he was under 18 at the time of the murder. Although the judge ordered a medical examination that resulted in an October 10, 2001 finding that he was under age 17, the court nevertheless imposed a death sentence. Al-Ma'amari had no legal assistance during the trial.
The Taiz Court of Appeal rejected al-Ma'amari's appeal on May 23, 2005, and the Supreme Court upheld the lower court's sentence on February 27, 2006.
Meaningful action by a small handful of states to ban the juvenile death penalty in all its forms and to ensure the fundamental rights of children in conflict with the law would result in universal adherence with the well-established prohibition against the juvenile death penalty.
Governments in states that have yet to prohibit the juvenile death penalty for all crimes should
- Enact as a matter of urgency legislation banning the imposition of capital punishment or life without parole on persons who were under 18 at the time of the crime, without exceptions;
- Immediately implement a moratorium on all executions of persons convicted of crimes committed before age 18, pending passage of legislation banning the juvenile death penalty;
- Review all existing death sentences passed on persons who were under 18 at the time of the crime, and immediately commute those sentences to custodial or other sentences in conformity with international juvenile justice standards.
Governments in states that have banned the juvenile death penalty should
- Ensure that children in conflict with the law have prompt access to legal assistance, including assistance in proving their age at the time of an alleged offense, and require police, prosecution, and judicial authorities to record the ages of children who come before them;
- Promote universal birth registration;
- Ensure that judicial authorities understand and enforce the ban on the juvenile death penalty, including by providing judges and prosecutors with training on its application, and by ordering a review of all death sentences where there is doubt that the individual was over 18 at the time of the offense.
The UN and its member states should
1.Support the efforts of governments and civil society to ensure the fundamental rights of children in conflict with the law, including through technical and financial assistance.
2.Request the UN Secretary-General, with the assistance of the Office of the High Commissioner for Human Rights, to submit a report to the 64th session of the General Assembly on compliance with the absolute ban on the juvenile death penalty, including information on
a)the number of juvenile offenders currently sentenced to death, and the number executed during the last 5 years;
b)rates of birth registration;
c)states' implementation of relevant domestic legislation, including mechanisms ensuring juvenile offenders have legal assistance at all stages of investigation and trial;
d) any other obstacles to full implementation of the ban on the juvenile death penalty.
3.Provide the Secretary-General with information on legislation and practice relating to the use of the death penalty against juvenile offenders.
Clarisa Bencomo, Middle East and North Africa researcher for the Children's Rights Division, authored this report, which reflects research conducted in Saudi Arabia in March 2008 and November and December 2006; communications with lawyers, nongovernmental organizations, and experts on juvenile justice in Iran, Pakistan, Sudan, and Yemen between April and September 2008, and a review of legislation, court documents, newspaper accounts of trials, and other written sources.
Jo Becker, advocacy director of the Children's Rights Division; Clive Baldwin, senior legal advisor; and Andrew Mawson, deputy program director, edited the report. Ali Dayan Hasan, senior researcher for Pakistan; Christoph Wilcke, senior researcher for Saudi Arabia, and Joe Stork, deputy director in the Middle East and North Africa Division provided valuable comments on sections of the report. Kennji Kizuka, Cassandra Mikicic, Grace Choi, Fitzroy Hepkins, and José Martinez provided production assistance.
The Children's Rights Division salutes the courageous efforts of those lawyers, judges, and human rights activists in Iran, Saudi Arabia, Pakistan, Sudan, and Yemen working to end the juvenile death penalty, too often in the face of tremendous pressure to maintain the status quo.
We acknowledge with gratitude the financial support of the Countess Moira Charitable Foundation.