INTERNATIONAL HUMAN RIGHTS STANDARDS
Despite its assertations to the contrary, Saudi Arabia, by virtue of its membership in the United Nations, is committed to uphold universal human rights standards, including those set forth in the Universal Declaration of Human Rights (UDHR), which are recognized as norms of customary international law. Other international instruments elaborate upon these rights, most notably the International Covenant on Civil and Political Rights (ICCPR), to which 138 states are party.59 Although Saudi Arabia is one of the few nations that is not a party, the terms of the ICCPR provide guidance as to the content of the fundamental rights that Saudi Arabia is obligated to respect, based on Saudi Arabia's participation in the United Nations and the universally binding character of such rights.
Article 9 of the Universal Declaration states that "[n]o one shall be subjected to arbitrary arrest, detention, or exile." To classify the legitimate exercise of basic rights as criminal behavior is by definition arbitrary. Criminalizing the possession of religious amulets and books violates the freedom of expression and belief, and so al-Naqshabandi's arrest on those grounds is arbitrary.
Article 10 of the Universal Declaration states that "[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." This language is echoed very closely in Article 14(1) of the ICCPR. Al-Naqshabandi's trial fails to meet the minimum standards for independence and impartiality because the Saudi judiciary is structured to significantly bias outcomes in favor of members of the royal family and their associates. Not only are the Saudi courts unable to subpoena members of the royal family, but the king has the power to appoint and dismiss judges at any time he chooses and to create special courts at will. In a judicial system of this nature, any claim to independence and impartiality is further undermined when the case involves a high ranking member of the royal family who seems to have been the prime mover behind the prosecution.
The trial also fails to meet the publicity requirement of the Universal Declaration, particularly in light of the more detailed explication of public trial given in Article 14(1) of the ICCPR. That article explicitly states that "any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes of the guardianship of children." Al-Naqshabandi's trial was inaccessible to both the public and his immediate family, and the evidence gathered by Human Rights Watch indicates that defendant himself did not attend the sessions where he was allegedly convicted and sentenced.
Article 11(1) of the Universal Declaration states that "[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense." Article 14(3) of the ICCPR, an authoritative guide in interpreting the broad language of this provision, further specifies the content of these minimum guarantees. Articles 14(3)(b) states that at a minimum everyone is guaranteed "adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing," while 14(3)(d) specifies the right
[t]o be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
Saudi Arabia's failure to guarantee access to legal counsel during interrogation and trial is a particularly egregious shortcoming, given the highly complex, specialized, and ill-defined nature of the Saudi legal system. Individuals who cannot afford to pay expensive lawyer's fees - as is often the case with foreigners engaged in disputes with employers over wages - are at an even greater disadvantage because Saudi Arabia does not guarantee the right to free legal assistance for those without sufficient means to pay for it. Without access to a lawyer it is virtually impossible for a defendant to prepare a proper defense, or even take the necessary procedural motions to petition to introduce evidence, call witnesses, or make formal complaints about abuse.
Article 14(3)(e) of the ICCPR specifies that the defendant has the right "to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." In Saudi Arabia, however, only a judge has the power to call witnesses for either side, and that power falls short of compelling members of the royal family to give testimony. A defendant may petition for a witness to be called, but the actual decision remains within the judge's discretion. In al-Naqshabandi's case, the defendant clearly attempted to petition to call witnesses through his letters to the judge, but without legal counsel he was unable to make the necessary formal petition. The only witnesses who did testify appear to have been al-Naqshabandi's employer and an official of the arresting agency, in violation of Article 14(3)(e)'s requirement that defense witnesses be allowed to give testimony. It is not clear whether al-Naqshabandi was ever allowed to question these two witnesses, but al-Naqshabandi's allegations that the CPVPV official gave false testimony, made in his letters to the judge written after the session, raise questions as to whether or not he was free to raise this challenge during the trial.
Article 14(3)(g) of the ICCPR requires that no one "be compelled to testify against himself or to confess guilt." The U.N. Human Rights Committee commentary on this provision makes special reference to Article 7 and Article 10 of the ICCPR, which require that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" and that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person," saying that "[t]he law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable."60 The threats, beatings and ill-treatment al-Naqshabandi alleges he suffered while in police and CPVPV custody, and the court's apparent acceptance of two confessions obtained through coercion, would be inconsistent with the minimum standards set forth in Articles 7, 10, and 14(3)(g).
Article 11(2) of the Universal Declaration further guarantees that "[n]o one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed." In Saudi Arabia, great discretionary powers granted to judges facilitate the post-facto criminalization of activities that were not previously punishable offences, and the application of punishments incommensurate with the crimes committed.
The nature of the Saudi legal system appears to facilitate violations of Article 18 of the Universal Declaration, which guarantees that "[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." Article 19 of the UDHR further guarantees "the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Al-Naqshabandi's conviction for "the practice of works of magic and spells and possession of a collection of polytheistic and superstitious books" is but one instance of Saudi Arabia's strict enforcement of religious orthodoxy, which includes criminalizing non-Muslim worship, practice, teaching, and observance, as well as those forms of Muslim worship, practice, teaching, and observance that it considers heterodox.
Article 14(5) of the ICCPR provides that "[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." To date the Saudi Government has failed to provide any evidence that a review of al-Naqshabandi's conviction did in fact take place. If a review did take place, it cannot have been thorough, as it did not take into account any additional testimony or briefs from the defendant, who according to his family was unaware of any conviction, sentencing, or appeal on the Tuesday prior to his Friday execution.
With regard to the death penalty itself, although the ICCPR does not categorically prohibit capital punishment it clearly favors its abolition, stating in Article 6(2) that "[i]n countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes." Moreover, the U.N. Commission on Human Rights, in its recently concluded 1997 session, "[c]alls upon all States that have not yet abolished the death penalty progressively to restrict the number of offences for which the death penalty may be imposed," and notes that capital punishment is excluded from the penalties which the international criminal tribunals for the former Yugoslavia and for Rwanda are authorized to impose.61 Saudi Arabia's frequent resort to capital punishment, with its inherent cruelty and irreversibility, is even more troubling in light of the Saudi legal system's gross failure to provide the most basic guarantees of due process.59 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of December 16, 1966. 60 U.N. Human Rights Committee General Comment 13(21) on Article 14, paragraph 14. 61 Question of the Death Penalty, Commission on Human Rights resolution 1997/12.