Published: 08 October 2020 Authors: Mirjam Reiter
On 23 April 2019, the Kingdom of Saudi Arabia executed 37 people on grounds of terrorism. In a statement, the Saudi Ministry of the Interior reiterated that it was “resolutely and firmly continuing to seek justice through carrying out the rules of the sacred Sharia, on anyone who may crosses [sic] the set limits of Allah” and warned “against anyone whose self may rationalize to him committing such terrorist and criminal acts, that the Sharia prescribed punishments shall be imposed upon him/her.” Two of the executed persons’ bodies were publicly hung from a pole for several hours. Of the 37 persons executed, at least three were minors at the time of their sentencing.
Asked to comment on the executions, a spokesperson for the Federal Foreign Office stated on 24 April 2019:
“Our stance on the death penalty is clear and completely unambiguous: it is a cruel and inhumane form of punishment that we reject at all times and in all circumstances – every execution is one too many. Where capital punishment is carried out, we criticize this openly and unequivocally, regardless of which country is concerned. We have repeatedly expressed this view to the Saudi Arabian leadership at all levels.”
The next day, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued the following statement:
“I am deeply shocked by reports from Saudi Arabia that 37 people have been executed. The German Government and I take a clear and completely unambiguous stance on the death penalty, namely that it is a cruel and inhumane form of punishment that we reject at all times and in all circumstances. When the death penalty is carried out, I express my criticism openly and unambiguously, regardless of which country is concerned. We have expressed this view repeatedly and at all levels to the Saudi Arabia leadership and will continue to do so.
These executions unfortunately increase the trend in Saudi Arabia towards an ever-growing number of executions. Reports that those executed included people who were minors at the time of the crime of which they were accused are a cause of particular concern. This violates the UN Convention on the Rights of the Child, to which Saudi Arabia has acceded in principle. I thus call on the Saudi Arabian leadership to uphold the country’s most recent Child Protection Act and to review and overturn death sentences that have already been handed down.”
The imposition of the death penalty on persons who were minors at the time of their offending is prohibited by both Article 6(5) of the International Covenant on Civil and Political Rights (ICCPR) and Article 37 (a) of the Convention on the Rights of the Child. The Federal Government’s Commissioner for Human Rights Policy focused on the Convention on the Rights of the Child as only this Convention was binding on Saudi Arabia. The country has so far not become a party to the ICCPR.
It is of interest to note that the Human Rights Commissioner spoke of Saudi Arabia having acceded to the Convention on the Rights of the Child “in principle”. This may be explained by the fact that upon ratification of the Convention, the Kingdom entered “reservations with respect to all such articles as are in conflict with the provisions of Islamic law.”
Islamic law (the Sharia) allows for the death penalty for persons under the age of 18 years who committed a hudud or qisas crime such as murder, adultery, apostasy and waging war against God. Saudi Arabia could thus argue that Article 37 (a) of the Convention on the Rights of the Child does not apply to the extent that Islamic law provides for the death penalty for minors. This also seems to be the situation under the Saudi Child Protection Act of 2014, which – while guaranteeing the right to life of all children – affirms in Article 2 the provisions of the Islamic Sharia, international law and the treaties ratified by the Kingdom.
Germany and several other States parties to the Convention on the Rights of the Child objected to the Saudi Arabian reservation. On 12 February 1997, Germany sent the following objection to the United Nations Secretary General as depository of the Convention:
“The Government of the Federal Republic of Germany has examined the reservations made by the Government of Saudi Arabia at the time of its accession to the Convention on the Rights of the Child.
The Government of the Federal Republic of Germany notes that the said reservations include reservations of a general kind ‘with respect to all such articles of the Convention as are in conflict with the provisions of Islamic law’.
The Government of the Federal Republic of Germany is of the view that these reservations may raise doubts as to the commitment of Saudi Arabia to the object and purpose of the Convention.
It is the common interest of states that treaties to which they have chosen to become parties should be respected, as to their object and purpose, by all parties.
The Government of the Federal Republic of Germany therefore objects to the abovementioned reservations.
This objection does not preclude the entry into force of the Convention between Saudi Arabia and the Federal Republic of Germany.”
Article 51(2), of the Convention on the Rights of the Child expressly provides that a “reservation incompatible with the object and purpose of the present Convention shall not be permitted.” It thus echoes the provision in Article 19(c) of the Vienna Convention on the Law of Treaties. Germany seemed to allude to these provisions when it stated that “that these reservations may raise doubts as to the commitment of Saudi Arabia to the object and purpose of the Convention.” The admissibility of Saudi Arabia’s reservation thus turns on the question of whether it is compatible with the object and purpose of the Convention on the Rights of the Child. In its reservation, Saudi Arabia referred in general terms to “all such articles as are in conflict with the provisions of Islamic law.” Reservations invoking provisions of a State’s internal law as a justification for not performing its treaty obligations are not generally incompatible with the object and purpose of a treaty. In the present case, however, Saudi Arabia referred to “Islamic law” in general and did not specify the particular provisions of the Convention which it did not intend to apply. This made it impossible for the other States parties to the Convention to determine the extent to which Saudi Arabia committed itself to the Convention and therefore created uncertainties about Saudi Arabia’s commitment to fulfil obligations under the Convention. While such broad and indeterminate reservations may raise doubts as to the commitment of the reserving State to the object and purpose of the Convention and may contribute to undermining the basis of international treaty law, they are not incompatible with the object and purpose of a treaty as such.
A reservation is incompatible with the object and purpose of a treaty if it intends to derogate from a provision the implementation of which is essential to fulfilling the treaty’s object and purpose. Whether a reservation passes the compatibility test thus depends on the treaty provision to which the reservation is to apply. Article 37 (a) of the Convention on the Rights of the Child protects the right to life, which is the most fundamental human right and conditio sine qua non to the enjoyment of all other rights under the Convention. The right to life must prevail over any Islamic law for the Convention to keep fulfilling its object and purpose of ensuring the protection and harmonious development of children. A general reservation with regard to Islamic law that limits the right to life of child offenders in fact amounts to non-ratification of the Convention with regard to such children. It must be noted that several other Islamic States made similar broad reservations as Saudi Arabia, yet only a handful of European States have objected to them. The (low) number of States objecting to Saudi Arabia’s reservation, however, is not determinative of its compatibility with the object and purpose of the Convention.
The Human Rights Committee declared that provisions that offend peremptory norms (jus cogens) would be incompatible with the object and purpose of the ICCPR. The same must be true for other international human rights treaties. It may be argued that one such peremptory norm is the prohibition on executing juvenile offenders. In 2002, the Inter-American Commission of Human Rights stated with regard to the United States practice of executing offenders under the age of 18:
“The overwhelming evidence of global state practice as set out above displays a consistency and generality amongst world states indicating that the world community considers the execution of offenders aged below 18 years at the time of their offence to be inconsistent with prevailing standards of decency. The Commission is therefore of the view that a norm of international customary law has emerged prohibiting the execution of offenders under the age of 18 years at the time of their crime.
Moreover, the Commission is satisfied, based upon the information before it, that this rule has been recognized as being of a sufficiently indelible nature to now constitute a norm of jus cogens […].”
Three years later, the United States Supreme Court also held that the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed constituted “cruel and unusual punishment”. In its Opinion, the Court noted:
“It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty […]. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. […] It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”
There are only very few countries defying the “opinion of the world community” by continuing to execute juvenile offenders. Individual countries, however, cannot prevent the emergence of a rule of jus cogens prohibiting the execution of offenders under the age of 18 years at the time of their crime. It could therefore be argued that such a rule is now reflected in Article 37(a) of the Convention on the Rights of the Child.
A strong argument can be made that the general Islamic law reservation made by Saudi Arabia is incompatible with the object and purpose of the Convention on the Rights of the Child. Germany thus had good reasons to accuse Saudi Arabia of a violation of the Convention.
Category: Human Rights