Journal Article•
Islam and the Death Penalty
01 Jan 2000-William and Mary Bill of Rights Journal (William & Mary Bill of Rights Journal)-Vol. 9, Iss: 1, pp 223
TL;DR: Schabas as mentioned in this paper argued that Islamic states do not recognize the limited role of the death penalty articulated in the Islamic religion, and pointed out that Islam does not support capital punishment.
Abstract: Capital punishment is not practiced by a majority of the world's states. Anti-capital punishment domestic policies have led to an international law of human rights that emphatically prohibits cruel and inhuman punishment. International concern for the abolition of capital punishment has prompted Islamic states that still endorse and practice the death penalty to respond with equally compelling concerns based on the tenets of Islamic law. Professor William A. Schabas suggests that Islamic states view capital punishment according to the principles embodied in the Koran. Islamic law functions on the belief that all people have a right to life unless the administration of Islamic law determines otherwise. Professor Schabas emphasizes that capital punishment exists in the domestic law of all Islamic states, but the ways by which these states employ capital punishment are varied and inconsistent. Although Professor Schabas acknowledges that Islamic states correctly argue that capital punishment is an element of Islamic law, he maintains that Islamic states do not recognize the more limited role of the death penalty articulated by the Islamic religion.
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TL;DR: In this article, the authors examined sources of variation in possession and use of the death penalty using data drawn from 193 nations in order to test theories of punishment and found that the use of death penalty is rooted in a country's legal and political systems, and is influenced by its religious traditions.
Abstract: We examine sources of variation in possession and use of the death penalty using data drawn from 193 nations in order to test theories of punishment. We find the death penalty to be rooted in a country's legal and political systems, and to be influenced by its religious traditions. A country's level of economic development, its educational attainment, and its religious composition shape its political institutions and practices, indirectly affecting its use of the death penalty. The article concludes by discussing likely future trends.
75 citations
Dissertation•
01 Jan 2015
TL;DR: In this article, the authors examine the issue of ratification and implementation of the Rome Statute by the Arab states by analysing the reasons, challenges and obstacles of Arab states for not becoming part of the international criminal justice system.
Abstract: The Rome Statute of the International Criminal Court is a major landmark in the development of international accountability. Its preamble affirms “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. Thus the signatory states were “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. The ICC contributes to the fight against impunity and the establishment of the rule of law by punishing violations of international legal norms. Accountability is important for the past and the future of societies. The ICC needs the support and cooperation of the states to effectively perform its mandate. So without ratification and implementation of the Rome Statute the ICC will not have jurisdiction over non-member states, unless referred by the UN Security Council. The Rome Statute does not only create the ICC but it also creates the national jurisdiction of its States Parties as these states have the primary responsibility to investigate and prosecute Rome Statute crimes. With only five Arab states to date being State Parties to the Rome Statute, it is obvious that the region is underrepresented at the ICC. Despite their positive role played in the creation of the ICC, not ratifying the Rome Statute raises several questions, especially that the majority of states that voted against the Statute were from the Arab region. Ratifying and implementing the Rome Statute will strengthen the Arab states criminal justice system, enabling them to prosecute international crimes domestically and will deter any individual from committing them in the future, regardless his official position. It will also allow the Arab states to have the primary jurisdiction over international crimes and reinforces the entire judicial system. This research will examine the issue of ratification and implementation of the Rome Statute by the Arab states by analysing the reasons, challenges and obstacles of the Arab states for not becoming part of the international criminal justice system.
64 citations
Dissertation•
27 Mar 2017
TL;DR: In this paper, the authors identify the glaring gaps in the substantive and procedural laws of these countries that lead to arbitrary application of the death penalty and identify the legal and physical problems of one third of the world's death row prisoners.
Abstract: Despite the inexorable global trend towards abolition, India, Pakistan and Bangladesh have not embraced the abolitionist movement and still fail to accept capital punishment as a human rights issue. The application of capital punishment in the Indian subcontinent is not only a violation of international human rights law but is also contradictory to the domestic constitutional provisions that guarantee the right to life, the right to a fair trial and the prohibition of torture. This research identifies the glaring gaps in the substantive and procedural laws of these countries that lead to arbitrary application of the death penalty. Law Commissions’ reports and the case law of these countries reflect: the investigating agencies use torture to extract confession; the indigent accused facing capital charges do not get legal assistance at the state’s expense; and issues related to witnesses cause undue delay in criminal proceedings and an escape route to terrorist and the powerful from prosecution. Simultaneously, the special courts have heightened the risk of arbitrary and subjective application of capital punishment by adopting special procedures that lower fair trial standards and due process guarantees. These special procedures include special powers of arrest and detention, validity to confessions made under police custody and reversing the presumption of innocence. The thesis explains that the scope of capital punishment as enunciated in the primary sources of Islamic jurisprudence (the Quran and the Sunnah) is not only limited but is also entwined with stringent evidentiary requirements and due process guarantees. It helps to dispel the notion that sharia is an impediment to restrict the scope of the application of capital punishment in Pakistan. This dissertation explores the legal and physical problems of one third of the world’s death row prisoners who have been languishing in cells for many years under the conditions of solitary confinement in contravention to guidelines of the domestic courts and law commissions. The pain of death row in the Indian subcontinent is exacerbated due to the denial of fundamental rights to prisoners in the name of safekeeping. As part of a comprehensive approach, the research provides compelling legal grounds to strengthen the criminal justice system by focusing on the process of evidence and investigation in order to prosecute the powerful and terrorists to promote justice rather than revenge.
32 citations
TL;DR: In this paper, the authors investigate the pattern of national abolition of the death penalty since 1960 and hypothesize that certain kinds of democracies are more liable to end capital punishment than others, and suggest that incentives provided by international organizations, particularly in Europe, have drawn some countries toward abolition.
Abstract: On the eve of World War II, eight countries had completely abolished the death penalty and another six had banned it for ordinary crimes. As of early 2008, 92 countries had prohibited capital punishment for all crimes and 10 more had ruled it out for ordinary crimes. The goal of this article is to account for the pattern of national abolition of the death penalty since 1960. We hypothesize that certain kinds of democracies are more liable to end capital punishment than others. Specifically, the negotiated form of democracy produced by parliamentary systems with proportional representation (consensus democracy in Lijpharts terms) is more likely to do away with the death penalty than are other forms of democracy. As previous research indicates, democratic transitions also increase the likelihood of abolition. Finally, international influences can also tip countries toward abolition. We suggest that incentives provided by international organizations, particularly in Europe, have drawn some countries toward abolition. The empirical analysis of approximately 150 countries for the period 19602005 confirms our expectations.
28 citations