Table of contents:
Executive Summary
Introduction
First topic: the historical and social rooting of the death penalty – retaliation in the soul – before and after the advent of Islam.
* Penalty for murder before Islam
* Retaliation for murder in Islamic legislation
Second topic: causes of mitigation and compassion between Islamic criminal legislation and national criminal laws.
* Compassion in Islamic Criminal Legislation
* Criminal Laws
Third topic: modern criminal policy and different solutions
* The emergence of modern criminal policy
* Restorative (Reconciliatory) Justice
* The path towards the abolition of the death penalty
* The contradiction between Sharia’a and civil law in the Egyptian legal system
Conclusion and recommendations
Executive Summary
This clear discrepancy between the application of the principles of Islamic Sharia’a law and private law systems appears clearly in the issue of applying the death penalty in Egyptian criminal legislation. Between the concept of the state’s right to punish, and the concept of pardon in cases of killing oneself or others, many opportunities are lost to limit the application of the death penalty in Egypt. Egyptian legislation punishes more than 50 crimes with the death penalty.
The “Stop the Death Penalty in Egypt” campaign aims, through this research, to determine the position of criminal courts in premeditated murder cases regarding accepting reconciliation between the parties to the criminal case or paying financial compensation determined by blood relatives, and the impact of that as reasons for the death penalty to be reduced to life imprisonment without parole for specific crimes. Both matters, whether reconciliation or financial compensation in cases of murder, have constitutional, judicial and legal foundations. Constitutionally, Islamic law is considered a main source of legislation – although this differs in its legal and judicial application. Legally, Article 17 of the Penal Code empowers judges to use clemency if the circumstances of the crime require it, and to reduce penalties from death to life imprisonment. This further applies to the rest of the penal pyramid[1]. According to Islamic jurisprudence, reconciliation is consistent with reconciliation between the offender and his blood relatives, and material compensation is consistent with the general legal concept of blood money, which is money paid to the victim or his guardian because of the crime.
The research addresses the historical origins of the crime of murder among Arabs before the Qur’an revelation, how the Arabs dealt with a murderer, and the right of blood guardians. The research then touched on the Qur’an verses that were revealed later, prescribing retaliation for murder, and how they attracted the interest of progressive Muslim scholars and interpreters. Their interpretations differed from the mainstream, erroneous interpretation of these verses. The research also reviewed the possibility of replacing retaliation with pardon of blood relatives from the penalty among other things in light of the opinions of Islamic jurists. The research also presented the contradiction in the criminal judicial system regarding application of these legitimate restorative principles, and the legislative authority’s lack of commitment to international treaties and agreements signed by the Egyptian government, which limits the use of the death penalty as a criminal deterrent.
Research problematic
In recent years, Egypt came among the top states in the annual report on the implementation of the death penalty issued by Amnesty International. In its report issued last May, the organization said that despite the decrease in the implementation of the number of registered executions by 71% in 2022 compared to that of the previous year, the number of death sentences issued by the courts increased by 51% compared to the previous year, as the number of death sentences registered in 2022 reached 538 according to the report.
These numbers constitute a huge social and even economic problem, especially in light of the legislative vacuum that does not pay attention to the modern penal philosophy adopted by international agreements. Also, these provisions reinforce the idea of revenge and tribal protection without the state, represented by the penal institution, taking steps towards implementing the rights of blood guardians in reconciliation, pardon, or even accepting blood money as compensation for harm, while preserving society’s right to other penalties other than the death penalty, as a different philosophy that reinforces the concept of punishments that are more appropriate for society.
Methodology
The researcher used the inductive approach through a literature review, as well as the descriptive and analytical approach to religious texts by presenting the problem, describing its mechanisms and significance, and then analyzing the historical and legal context to reach a conclusion and present recommendations to try to solve it.
Introduction
The history of violence observed by anthropologists begins as far back as the beginning of history of man and religious mythology in the three most widespread religions combines one narrative of the story of the first crime in the history of humanity, where a brother killed his brother as a result of lust and greed, two of the seven sins condemned by religion.
Scholars attribute the beginning of the spread of violence and killing in prehistoric times to the stability of human groups and the extension of their influence over living areas, and thus the change in the economic pattern that led to the emergence of the idea of ownership and then the change in the social hierarchy that increased the feeling of inequality between members of one tribe or between different tribes. . Consequently, this radical change in the social structure led to the emergence of conflicts and attempts to extend influence and gain more advantages, which, if they did not come through alliances, were achieved through violence[2].
The development of societies and the increase in economic prosperity – especially after the discovery of agriculture – led to the development of violence as well, as each tribe in the various human gatherings sought to extend its influence and increase its share of the economic territory. In the Arabian Peninsula, trade and the possession of pastures for sheep, camels, and slaves were the real wealth over which all the tribes competed. This competition created a social hierarchy that was divided between the northern Arabs and the southern Yemeni Arabs, and each tribe was proud of its origin. Tribal fanaticism, boasting, and extravagance increased among them, which eventually led to boasting and also exaggeration in killing and revenge. Perhaps one of the most famous incidents among the Arabs is the war of the Bassus between the tribes of Bakr and Taghlib, in which vendetta lasted for 40 years, as well as the war of the “immoral” people between the tribes of Kinana and Aylan, which was called that because everything was deemed permissible in it, such as killing during the sacred months and severing family ties, all of which were major sins among the Arabs. This war also lasted 10 years of fighting between the two tribes over a satirical verse thrown in Okaz market! [3]
- Historical and social rooting of the death penalty – retaliation for murder – before and after the advent of Islam.
* Penalty for murder before Islam
Pre-Islamic society consisted of tribes and clans, and each tribe had rules and customs that differed depending on the location of these tribes, whether by their proximity to urban areas and their connection to surrounding civilizations, or by their isolation in the desert. Given the simplicity and lack of complexity of this tribal life, there was little space for conflict. The people of the desert defined the concept of “right” as the ability to seize that right. The ability here had two measures, one of which was power and the ability to bear arms and extract the right, and the second is tribal fanaticism. The strength of the tribe and its economic position was an influential factor in enforcing the right and punishing those who deviate from customs and laws. This was followed by the implementation of the orders of the kings and tribal leaders, and the heads of the council houses were such as the “mullahs” and “nadwa” (tribal council) who were the Legislators and implementers of these orders. Their judgments were followed in times of peace and times of war. [4]
Some of the rulings that were approved by the Arab tribes before the emergence of Islam were adopted by Islamic law after that, and even revealed decisive verses with them, such as the ruling of “Amer bin Jashm bin Ghanam bin Habib” regarding the inheritance of daughters, who did not have the right to inheritance among Arabs until Amer ruled that the daughters inherit his wealth. What is even more surprising is that he was the one who decided that the male has the same right to inheritance as the share of the two females! Throughout history, clans and tribes in the Arab region still apply the “tribal custom” among themselves in terms of disagreement and conflict, despite the contradiction of those customs with religions or the man-made laws legislated by governments in their modern form.
In the past, Arabs distinguished between two types of murder: premeditated murder and manslaughter. All Arabs also agreed on their differences in the application of retaliation as the punishment for the murderer. They also recognized the right of the blood guardian to take revenge, which they called “al-qod,” or taking blood money. However, they differed in their application depending on the social context in their societies. Northern Arabs were lenient in retaliation and accepted blood money, while the people of the desert saw this as pettiness and disgrace, and that the right to retaliation was passed from generation to generation until the land and those on it perished. As for southern Arabs in the kingdoms of Yemen, they limited the right to inflict penalty on the murderer to the king, as he was made the only one to determine the type of punishment that could be inflicted on the murderer, whether allowing him to be killed, or obliging him to pay blood money[5].
Thus, the rules established by the Arabs before the emergence of Islam were very similar to what was approved by Islamic legislation at a later time. In the pre-Islamic era, passion, tribal fanaticism, and the individual’s status in society were the elements that controlled the ability to seize a right or inflict punishment in Arab society, especially as regards the punishment for murder. As seen from the above, the matter for them was one of displaying strength, proving one’s status, and asserting one’s superiority over others, as in the matter of honor, just as the rules followed today by family fanaticism in Upper Egypt. So what about Islam?!
* Retaliation “qisas” for murder in Islam
Islam did not legislate for or against retaliation in itself. Rather, the Qur’an verses came to organize the situation that existed before the emergence of Islam, like other issues that had been left unregulated, such as marriage, divorce, inheritance, and drinking alcohol among other matters, in which the rulings changed throughout the time of the call until the end of the revelation with the death of the Messenger (PBUH).
The famous verses of retaliation were revealed in Surat Al-Baqarah – a Medina surah that was revealed after the Hijra (the migration from Mekka to Medina). The verses 178 and 179 of Surat Al-Baqarah God Almighty said, “O you who believe! Retaliation for the murdered is ordained upon you: the free for the free, the slave for the slave, the female for the female. But if he is forgiven by his kin, then grant any reasonable demand, and pay with good will. This is a concession from your Lord, and a mercy. But whoever commits aggression after that, a painful torment awaits him.* There is life for you in retaliation, O people of understanding, so that you may refrain.”
Interpreters differed in determining the reasons for the revelation of those verses. It was said that they were revealed about a people in Medina who, if a man among them killed a slave of another people, would not be satisfied except by killing his master, and if a woman killed a man from a different clan would not settle except for the blood of a man from that woman’s family or clan. So, God revealed this verse[6]. Quoting Ibn Abbas, others said that it was revealed about two warring Arab tribes who were exaggerating in killing. If one of them killed a slave of another clan, the other would kill a master in his place, out of arrogance and vengeance[7].
There are many interpretations of these verses, which have become more stringent with the passage of time. Arab history witnessed fighting between tribes, which was essentially based on the principle of revenge, in which the matter ends in a permanent war between two or more tribes and their allies and brought them together as one group, so their blood mixed and no one could tell one from the other. The early interpreters of the Qur’an saw that these verses were revealed to limit the chaos, and to legislate for the restriction of retaliation among Muslim Arabs, since that was an act of “pre-Islamic times,” and to allow the acceptance of blood money for the nation of Islam.
Al-Tabari states in his interpretation that the verses in Surat Al-Baqarah did not impose retaliation by the blood guardian against the murderer of his guardian, but rather allowed Muslims to choose whether to accept it, pardon the murderer, or take blood money. As for the Almighty’s saying, “The free for the free, and the slave for the slave…”, it was only prescribed to stress equality between the blood of human beings, and for retaliation to be only against the murderer to the exclusion of other people, so it is forbidden to kill others who did not commit the crime of murder.
As for the obligation that the verses talk about – Al-Tabari says: God revealed these verses to prevent people from transgressing in fighting, so that no one of them would be killed by someone other than the one who killed him, regardless of his status among his people and tribe. Al-Tabari also saw that the obligation of retaliation on Muslims is not an obligation like prayer and fasting, since if that were the case and it was not permissible for Muslims to abandon retaliation, it would not have been stated at the end of the first verse, “But if he is forgiven by his kin,” meaning that there is no pardon after retaliation[8].
In His saying, “And there is life for you in retaliation,” Al-Tabari said in his interpretation that God singled out those with rational minds to be addressed in this verse because they are the ones who reflect on His verses and arguments to the exclusion of others, and He addresses in them the fear and piety of retaliation, as if God meant to protect people from one another through retaliation. [9]
As for Al-Qurtubi, he saw in the interpretation of these verses seventeen issues, among them what he stated in what Al-Bukhari and Al-Nasa’i narrated quoting Ibn Abbas, that he said, “There was retaliation among the Children of Israel, but there was no blood money among them,” so God revealed to this nation that verse as a mitigation and mercy from Him in legislating amnesty by accepting blood money in premeditated murder[10].
Al-Qurtubi also saw that retaliation can only be carried out by those in authority, since it is not possible for all believers to come together on retaliation themselves, so they authorized the sultan place in that matter, “and retaliation is not obligatory”, rather, the obligation stated in the verse is that retaliation and the limits should not go beyond aggression and transgression. So, if the blood guardians accept clemency or blood money, then that is permissible. As for the meaning of “It is decreed upon you…” it was said that its meaning is “if you wish”.
This is what the imams relied on from the hadith of Abu Shurayh al-Kaabi, who said, the Messenger of God, may God bless him and grant him peace, said: “Then you, Khuza’ah, have killed this man of Hudhayl, but I will pay his blood-wit. After these words of mine if a man of anyone is killed, his people will have a choice to accept blood-wit or to kill him.”
Also, Abu Shurayh Al-Khuza’i, on the authority of the Prophet, may God’s prayers and peace be upon him, said: (if a man of anyone is killed, he may kill, or pardon or accept blood money.” [11]
And in his saying, “And there is life for you in retaliation”, according to Al-Qurtubi, the imams of fatwa agreed that it is not permissible for anyone to take retaliation against another in any of the rights without the permission of the one who rules or has authority. For this reason, God has given authority to withhold the hands of people from one another to avoid killing and to be safe from retaliation, and to promote piety in other matters, since God rewards obedience with obedience[12].
From the above, the first Muslim interpreters of Islam tended to interpret the verses of retaliation to serve the basic principles that Islam came to preach in the social environment in which it was revealed, such as equality, tolerance, enjoining the good and forbidding the evil, and perfecting good morals. Many of these interpretations conclude that the two aforementioned verses were revealed to command the Arabs to refrain from fighting and shedding blood, and to abstain from fanaticism and oppression. The most important principle is that the sanctity of all blood is the same, so no one is preferred over another, nor is the status of one person higher than the status of another.
These general goals called for by Islamic law, in their entirety, appear to be goals aimed at justice, equality, and prosperity. However, these goals have been interpreted throughout history to serve specific goals required by consolidating the pillars of rule, expanding the Islamic state, and tightening the grip of kings and princes throughout centuries of time.
All of these interpretations added sanctity to certain interpretations that restricted the Qur’an text to be used to implement the goals of this state or that ruler who repeated the history of the early pre-Islamic era of feuds, bloodshed, and demanding retaliation for purely political reasons. This began since the incident of “Othman’s shirt” until the end of the era of the “Ottoman Empire,” which made discussing retaliation by death or the death penalty a taboo “matter” among the imams appointed by rulers and princes. They even proclaimed it an invitation to slander and trivialization of the rule of God and His Messenger and ridicule of the opinion of jurists and scholars.
II: Causes of mitigation and compassion between Islamic criminal legislation and national criminal laws.
- Mitigation in Islamic criminal legislation
From the above we conclude that Qur’an verses that approved of retaliation also legislated for another path in the Islamic nation, which is clemency and forgiveness, in line with the overall objectives of Islamic law. Muslim scholars have interpreted – as we mentioned in detail – that the intent of these verses is not to impose retaliation in itself, but rather giving Muslims the option of adopting it or pardoning and accepting blood money.
Muslim jurists have established pardon for retaliation based on the Almighty’s saying: “But whoever is forgiven anything from his brother, follow what is right and repay him with goodness. This is alleviation from your Lord and a mercy…”, where the verse opened a gateway to forgiveness and mercy between Muslims and to fight the situation that existed before Islam where they – i.e., the Arabs – took pride in oppression and invincibility.
The jurists of the four major schools of Islamic thought derived from this the reasons for mitigation in the implementation of retaliation and set conditions and obligations for it in one of three ways: concession, pardon, or reconciliation. They distinguished between them as follows:
Concession is abandoning and forfeiting the right to retaliation; it is a term that includes absolution, pardon, and reconciliation.
As for pardon, the four imams differentiated pardon based on the effects it entails. The Hanafis and Malikis interpreted the term pardon as waiving the right of retaliation without blood money[13], and the Shafi’is and Hanbalis held that pardoning the right of retaliation takes place whether it is with or without blood money, since the blood guardian has the choice[14]. Here, they relied on the hadith of Abu Hurairah on the authority of the Messenger (may God bless him and grant him peace) that he said: “Whoever has someone killed for him is the better of the two parties[15]”, he may pardon, and he may take blood money.
As for reconciliation, it has been defined idiomatically as the replacement of a right or a claim with compensation to resolve a dispute, just as Ibn Rushd defined it as receiving something as compensation[16]. The jurists agreed on the permissibility of pardon and forfeiting retaliation for a person or otherwise, and they considered it a reason for forfeiting the punishment. This is because retaliation is a right for a person, and reconciliation is permissible in that case. If the blood guardian pardons retaliation, it is waived by agreement, according to the words of Anas Ibn Malik, may God be pleased with him: “I have never seen the Prophet, may God’s prayers and peace be upon him, being presented with a matter that involved retaliation, has ordered anything but pardon[17].”
* The principle of clemency in criminal law
The current Penal Code was enacted in 1938, and over the years several amendments were made to it, most of which were aimed at increasing and tightening its penalties. Although many cultural, social, and economic factors have changed since the 1930s until today, the penal system in Egyptian national legislation is still influenced by the punitive philosophical schools of the eighteenth and nineteenth centuries, ignoring all the developments that were introduced to those schools, which are now considered part of the distant past of nations and civilized peoples.
The Egyptian penal system is philosophically influenced by the first traditional school, which is a school that arose in the second half of the eighteenth-century under the influence of the social contract philosophy of Jean-Jacques Rousseau, who defined society’s authority to punish in terms of the social benefit that justifies punishment as a necessary means to achieve society’s interest in combating crime.
This school is characterized by a famous principle, which is the generality and abstractness of the legal rule. It established an abstract definition for every crime and a fixed penalty that applies to everyone who commits it. Thus, its interest in defining the material nature of the crime diverted it from caring about the identity of its perpetrator, considering that every person who commits a crime is nothing but an abstract criminal and there is no importance in examining his personal traits or pay attention to his social circumstances.
Philosophers of this school have unanimously agreed that the purpose of punishment is for the criminal not to repeat the act and for others not to imitate it and that this is meant in defense of society, in a clear definition of the meaning of general deterrence, that is, to warn everyone considering a crime of the bad consequence of that crime so that he would avoid it! [18]
Egyptian law did not regulate the acceptance of blood money or financial compensation as an alternative to imposing punishment for murder crimes of both types, although some Arab countries that rely on Islamic law as the sole source of legislation permit the acceptance of blood money. Also, if blood money is agreed upon between the parties to the criminal dispute, it has no legal or judicial effect in mitigating penalties. This is even though the system of blood money in Islamic law is to provide it as an implicit admission of committing the crime, because blood money means a material punishment in exchange for exemption from the original criminal punishment, so the blood guardian accepts the blood money and pardons the criminal, and thus exempts him from punishment.
However, comprehensive punitive exemption for those convicted of premeditated murder is not the purpose of this research and certainly does not support it. Rather, what this research seeks is to support the idea that the financial compensation that the victim’s family deems necessary – and this is consistent with the general framework of blood money – after reconciliation between the accused and his blood relatives must be a reason for clemency and commutation of the death penalty – retaliation – to life imprisonment without the opportunity for parole for certain crimes. However, this reconciliatory assumption is not in line with the Egyptian punitive philosophy, which believes that the state is the custodian of blood and does not recognize blood money, but rather recognizes the right of the injured person – that is, the family of the victim – to receive redress in an implicit approach to the concept of blood money according to Muhammadan Sharia.
The Egyptian judicial system is not affected by reconciliation or paying compensation to the victims before a ruling is issued in the case, and it is not conceivable that it might prompt the court to reduce the penalty if this reduction is justified by the details of the case. This is an objective matter left to the court and its authority here is absolute. The Court of Cassation has no control over it in assessing the penalty, leaving it as the only body to consider and implement. Article (17) [19] of the Penal Code allows the criminal judge to use clemency in rulings if the circumstances of the case require it based on the facts of its papers.
There are repeated rulings of the Egyptian Court of Cassation showing how judges use the principle of clemency to reduce punishments, stating that “if the judge wants to use clemency and reduce the level of punishment stipulated by law to a lighter level, then he is not obligated to state a reason therefor. Rather, all that is required of him then is simply to say that there are mitigating circumstances and refer to the text on which he relies in assessing the punishment; that is because clemency is an inner feeling that is aroused in the judge’s soul by various reasons that he sometimes cannot determine until he depicts them in writing or verbally. For this reason, the law did not assign the judge – and he could not have assigned him – to explain it, but rather it accepts from him his mere statement that this feeling exists within himself, and it does not ask him for evidence.” [20]
The criminal cassation rulings also dealt with how judges exercise their discretionary power in assessing the punishment, stating that “the assessment of the punishment and the fulfillment or non-fulfillment of the requirements for clemency are entrusted to the judge of the matter without anyone commenting on it, and it does not affect the validity of the ruling if it ignores the reconciliation concluded between the appellant and the victim as long as the elements of the crime remain, since this settlement has no effect on its establishment, so the appellant’s objection in this regard is unacceptable. Given the above, the entire appeal is without foundation and must be rejected on the merits.” [21]
Despite this – and in a rare incident – a recent ruling was issued by the Criminal Court in Dakahlia Governorate[22] of 15 years of aggravated imprisonment based on the principle of clemency approved by the law, after the Public Prosecution referred the accused on charges of premeditated murder of the first victim, and attempted murder of the second victim. The families of the two victims agreed to waive the civil lawsuit through reconciliation, and the second victim refrained from accusing the accused of attempting to kill him before the court[23].
III: Modern Criminal Policy and Contrasting Solutions
* The emergence of modern criminal policy
III: Modern Criminal Policy and Contrasting Solutions
* The emergence of modern criminal policy
The school of the modern social defense movement emerged in the second half of the twentieth century to establish the principles of modern criminal policy, charting an intellectual trend that would introduce fundamental changes to the stable and outdated criminal systems. The term social defense – as defined by Mark Ansel, one of the founders of the movement – means protecting society and the individual from crime and achieving the protection of society by confronting circumstances that would encourage the individual to commit crime. The protection of the individual is achieved according to the vision of this school by properly qualifying him to protect himself from the evil of the need to commit a subsequent crime or to return to this behavior.
The movement defined criminal policy as “fighting crime with appropriate means.” The movement saw the necessity of implementing criminal law alongside the human sciences that study crime and criminal behavior and their causes, and placed a joint responsibility on both society and the person convicted of crime to work together to rehabilitate him and restore his position in society and his value as an effective individual in the human community. The Social Defense Movement was the first movement to call for the exclusion of the death penalty as a cruel and brutal punishment, based on the movement’s belief that there are no irredeemable criminals[24].
* Reconciliatory Justice
At a time when the traditional criminal justice system had proven its failure in achieving social security and reducing the rate of committing crimes, the international community decided to adopt more reform policies for the existing legal systems by gradually changing the philosophy of punishments applied to minor and serious crimes, and trying to put the authorities of the law at the same distance from the perpetrator and the victim in accordance with the general interest of society.
In order to implement this, the United Nations Economic and Social Council commissioned a group of experts from member states to formulate draft principles for a program of restorative justice in criminal matters, so that these principles are more responsive to the development of the concept of crime, and work to respect human dignity and equality between persons, and to build and enhance social harmony through the treatment of victims, perpetrators and communities[25].
This system works if there is sufficient evidence to charge the perpetrator, and both the victim (his family) and the perpetrator express their desire to settle the criminal case. In the event of reluctance to accept reconciliation, the procedures taken within this program are not allowed to be used as evidence of an admission of guilt in any later legal procedure. The document also left for each member state to legislate the conditions for referring cases to restorative justice programs, how to settle cases, who is entrusted with supervising the implementation of that reconciliation, and to cover all procedures of this process with complete confidentiality.
The draft principles also emphasized ensuring the necessary procedural guarantees for both parties – the perpetrator and the victim – and that the victims should not fall under any type of coercion to accept the results of reconciliation or participate in it. To ensure this, the principles recommended the necessity of judicial supervision of the reconciliation process[26].
* The path towards the abolition of the death penalty
International charters and declarations have enshrined human values and preserved undiminished human rights, linked to and attached to the human person, and cannot be waived. Among these preserved rights is the human right to life, a right for which many international charters have been initiated and which also called for the abolition of all legislation that leads to its violation or derogation.
Considering that the death penalty is the most serious punishment of all, as it leads to the loss of the life of the sentenced person and thus violates the inherent right to life, this punishment has received great attention from the international community, which always calls for a move to abolish it.
Since the issuance of the Universal Declaration of Human Rights, international conventions have gradually called for the abolition of the death penalty. In the beginning, the Universal Declaration did not address the death penalty itself, but it stipulated in its third article that “Every individual has the right to life, liberty, and the security of his person.” This was the general and prevailing idea at the time in a defense by the international community of the human right to life, so that no party has the right to deprive him thereof.
As for the International Covenant on Civil and Political Rights – ratified by the Egyptian government[27] – it is considered the first real step by the international community towards paving the way for reducing the death penalty, as many discussions took place regarding the definition of the right to life approved by the Universal Declaration, and what are the inevitable guarantees that must be approved to protect it. In November 1957, the Human Rights Committee devoted 12 sessions to discuss the article related to the right to life alone, in which members tried to limit the exceptions to this right to the narrowest possible scope[28].
During those years in which the draft covenant was being prepared, the General Assembly finally adopted it in 1966, including the text of Article 6[29], which stipulated the following guarantees: –
1: non-arbitrariness; The article states that it is not permissible to deprive any person of his right to life arbitrarily, and legal jurisprudence[30] considers that arbitrariness consists in the deviation of any behavior – that would detract from a person’s right to life – from its social goal, and from the purpose and spirit of the right.
2: Limiting the application of the death penalty – in the member states that apply it – to the most serious crimes. Despite this article’s attempt to reduce the scope of application of the penalty to crimes that are described as “the most serious,” it is noted that Egyptian law has expanded the application of the penalty for many crimes, as their number in the Penal Code alone reached 34 crimes, which is a very large number, in addition to 10 other crimes in the Law on Combating Drugs and Regulating their Use, a single crime in the Weapons and Ammunition Law, and 10 other crimes in the Military Code.
This is despite the fact that the phrase “the most serious crimes” should not be defined in a way that goes beyond the concept of international crimes that result in the loss of life. Defining the crimes to which the death penalty is applied must not be in violation of the Covenant or constitute a violation of the rights and freedoms whose exercise it guarantees, including ignoring guarantees of justice, political crimes and crimes of consciousness[31].
3: Recognizing the right of the person sentenced to death to seek pardon, or commutation of the sentence, which is a guarantee that, if there is political will of the concerned authorities, would at least restrict the scope of execution of the sentence to the lowest possible extent.
4: It is not permissible to apply the death penalty to anyone under the age of 18, or to implement it on a pregnant woman. Despite the existence of these guarantees in Article VI of the aforementioned International Covenant, with the passage of years the need emerged to legislate another convention that is more specific and comprehensive, specifically concerned with the death penalty, in order to help member states take more serious steps towards their commitment – not only by reducing the application of the death penalty – but by abolishing the application of the penalty completely.
For this reason, the United Nations General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights in 1989, the first article of which stipulates that no person subject to the jurisdiction of any state party that has signed this protocol shall be executed. The rest of its articles include the steps that must be taken by each state to abolish the punishment. However, the protocol provided one exception, which is limiting the application of the punishment in state parties to a state of war[32]. It is a protocol that the Egyptian government did not sign.
Reviewing the above, it is noted that the international community has been keen to gradually move towards abolishing the death penalty, in order to allow member states with different cultural and social natures, who are not receptive to the idea of complete abolishment, to reach the maximum degree of restricting it to specific crimes or suspending its implementation for infinite periods.
* Contradictions in the Egyptian legal system between Sharia and civil law
According to Article 93 of the Egyptian Constitution issued in 2014, the state is committed to international agreements and covenants that it had ratified, and they acquire the force of law after they are published in the Official Gazette in accordance with established conditions. Despite Egypt’s ratification of the International Covenant on Civil and Political Rights and its publication in the Official Gazette for its provisions to become effective by force of law, Egypt has ratified this covenant and has reservations about all of its provisions which it considered to be in violation or inconsistent with any principle of Islamic law.
Within the framework of international law, commitment to human rights conventions is commitment to the treaties that make up the International Charter as they establish general rules. International jurisprudence defines a legitimate treaty as a treaty whose parties, by concluding it, aim to enact new international rules that regulate relations between them.
International jurisprudence views the conventions regulating human rights as legislation that has acquired the form of treaties, as it has binding force vis-à-vis all members of the international community, and it is an international obligation that the state bears under the agreements of the international Bill of Human Rights with peremptory rules in international law. This commitment must be enacted at the level of the state’s internal policies or its external relations. [33]
Accordingly, Egypt has a clear obligation to implement Article 6 of the International Covenant on Civil and Political Rights, which it has ratified in all its provisions. It is unreasonable that 55 crimes for which the Egyptian laws punish with the death penalty – as we mentioned previously – constitute the “extreme severity” that the legislator intended in the clause of the second point of Article VI of the Covenant, especially when the Economic and Social Council has specified the term “the most serious,” and that it should not be used outside the scope of war crimes or genocide, or its interpretation should not be extended to crimes that constitute a violation of any of the other rights included in the Covenant. Thus, The Egyptian authorities are in clear violation of international law and must review its position.
Also, since the provisions of the Covenant must be taken as a whole, indivisible unit, the last clause of the aforementioned Article 6 obliges member states that signed the Covenant not to use any pretext to delay take serious steps towards delaying or preventing the death penalty. This is another separate obligation in the article that falls is the responsibility of the state parties to delay the implementation of the death penalty, if not stop it completely. This is a commitment which the Egyptian state has failed, especially in recent years in which the rate of implementation of the death penalty has increased incredibly.
While the Egyptian government explains its reservation on this article saying that it violates the principles of Islamic Sharia’a, although it was shown in this paper that Islamic Sharia’a has allowed reducing retaliation for murder, and left the choice to the blood guardians to waive retaliation and grant pardon, or to accept blood money as compensation and reparation for the harm they suffered due to the death of their kin. Despite this, no Egyptian legislation stipulates accepting civil compensation as a synonym for the blood money system in Islamic legislation, with subsequent abolition of the death penalty and its replacement with life imprisonment without the opportunity for a conditional parole in some crimes.
In another contradiction, the Code of Criminal Procedure requires the Criminal Court, before issuing a death sentence, to send the case papers to His Eminence the Mufti of Egypt to obtain a jurisprudential opinion[34]. However, the same article leaves it to the court to decide the fate of the case if the jurisprudential response does not arrive from the Mufti of the Republic within 10 days from the date the case papers were sent to him. The Court of Cassation also interpreted the legislator’s intent in this article as “so that the judge should be aware of whether or not the provisions of Sharia permit the death penalty in a criminal incident in which it is required to take the opinion of the mufti before ruling on this punishment, and without the intent of that being to know the opinion of the mufti in analyzing the act attributed to the offender and giving it a legal description, [35]”
In other words, the court’s decision to refer the case papers to the Mufti is merely a formal procedure that the court must follow as part of the trial procedures, which results in the ruling being invalidated if it is not followed. As for the objective aspect, the Mufti’s opinion is not binding to the criminal court; it doesn’t even have to wait for it, nor adopt it, nor follow it. i.e., it is just a formality, and its role does not go beyond determining in the abstract whether or not the committed act is punishable by death in Islamic law, without an in-depth study of the circumstances of the incident, its adaptation, its evidence, and the context surrounding it.
From the above, it is clear that the Egyptian judicial and legislative systems contain major contradictions. They do not allow the application of legitimate reasons for mitigating retaliation; they do not apply ratified international agreements, and obligations towards the international community are ignored with regard to limiting the application of the death penalty.
Conclusion
Revenge is a characteristic that has accompanied the human soul throughout history, and in most cases, it was translated into the form of killing. As societies developed, they needed organization and the formulation of a unified social contract that clarifies the rules and outlines the duties and rights that every individual must exercise in these societies.
We see that the tribal and social customs that differ according to nations, time, and spatial circumstances are the main factors that determine the attitude towards retaliation or the death penalty. Killing creates intense hatred and leaves a rage that cannot be extinguished except by revenge and control. Therefore, it is necessary to address that hate and those grudges if our aim is to preserve lives and spare blood. Civilized societies sanctified man’s right to life, and even made all other rights revolve around it so that man could ultimately enjoy a dignified and protected life. As long as it is not in anyone’s power to give this right to any human being, neither should any person have that right to take it away by force or coercion.
Consolidating and spreading the principle that whoever kills is killed throughout society, and giving a sacred religious aura to one direction of interpreting texts is faulty logic and will lead to a catastrophe of endless fighting and revenge. Modernist philosophers believe that the religious text is a historical one that must be understood within its temporal, environmental, and social cultural conditions, so that priority in interpreting the text is given to concrete material facts at the expense of what is unseen, transcendent, and unconditional, by submitting everything to research and criticism.
The inconsistency of the justice system in Egypt leads to many wasted opportunities to limit the implementation of the death penalty, and the only way out stipulated in the Penal Code, such as the principle of clemency, is hampered by many obstacles, legislative vacuum and broad language that is shrouded in local legislation, such as the absolute discretion of criminal judges. Also, replacing the death penalty with other punishments that deprive of freedom does not conflict with the philosophy of the right to punishment, because it is a philosophy that is based on the principle that its application should deter criminality and non-recurrence of crimes, which are conditions that are not included in the current penal system> Last but not least it is important to stress that the persistence of the death penalty did not provide the necessary deterrence so that society can live in a climate of peace and justice.
Recommendations
- We recommend replacing the death penalty whenever mentioned in any penal code with life imprisonment without the opportunity for conditional amnesty for certain legally defined crimes.
- We recommend reducing the number of crimes punishable by the death penalty in Egyptian laws, which at present amount to more than 50 crimes, and to limit this punishment to the most dangerous crimes.
- We recommend amending the articles of the Code of Criminal Procedure to make criminal trial at two levels as recommended by the Egyptian Constitution issued in 2014; and the Egyptian Constitution obliges the legislative authority to establish criminal courts of appeal within ten years of the adoption of the Constitution, and despite the approaching end of that period, the legislative authority is still failing to implement this constitutional and legal guarantee.
- We recommend the introduction of a legislative provision if the perpetrator and the family of the victim agree on material compensation under which the blood guardians waive the civil claim against the murderer; in this case the court is obliged to apply clemency and commute the death penalty to life imprisonment without the opportunity of conditional pardon for certain crimes stipulated by law such as war crimes and genocide.
- The Egyptian government should commit to implementing article 6 of the ratified ICCPR and working to limit the implementation of the death penalty, if not abolish it.
- The Egyptian government should consider signing the Second Protocol to the International Covenant on Civil and Political Rights.
[1] Article 17: “In cases of felonies, if the circumstances of the crime for which the public lawsuit is brought require the mercy of judges, it is permissible to change the penalty as follows:
The death penalty is punishable by life imprisonment or aggravated imprisonment.
Life imprisonment with aggravated imprisonment or imprisonment.
The penalty of aggravated imprisonment is a penalty of imprisonment or imprisonment, which may not be less than six months.
The penalty of imprisonment shall be punished by imprisonment, which may not be less than three months”.
[2] Pato-Matisse, Marilan – The Roots of Violence – published on the official website of UNESCO – 2020 – https://rb.gy/vznlp
[3] Bin Kathir, Abu Al-Fida Ismail – The Beginning and the End – Dar Al-Ma’rifa for Printing and Publishing – Beirut – 1976 – Part 1 – p. 258.
[4] Ali, Jawad – Al-Mufassal fi Tarikh al-Arab before Islam – Part Ten – pp. 143 et seq. – Fourth Edition – Dar Al-Saqi – 2001
[5] Ali, Jawad – previous source – Part Ten – p. 252 et seq
[6] Abu Jaafar, Muhammad bin Jarir al-Tabari – Jami’ al-Bayan on the Interpretation of the Verses of the Qur’an – Part 3 – p. 358 – House of Education and Heritage – Mecca Al-Mukarramah – without date of publication
[7] Abu Abdullah, Muhammad bin Ahmad Al-Ansari Al-Qurtubi – Al-Jami’ fi Ahkam Al-Qur’an – Vol 2 – p. 244 – Dar Al-Kutub Al-Misria – Cairo – 1964
[8] Abu Jaafar, Muhammad bin Jarir al-Tabari – previous source – vol. 3 / p. 357
[9] Abu Jaafar, Muhammad bin Jarir al-Tabari – previous source – vol. 3 / p. 382 et seq
[10] Abu Abdullah, Muhammad bin Ahmed Al-Ansari Al-Qurtubi – previous source – vol. 2 / p. 244
[11] Abu Abdullah, Muhammad bin Ahmed Al-Ansari Al-Qurtubi – previous source – Part 2 / p. 246 et seq.
[12] Abu Abdullah, Muhammad bin Ahmed Al-Ansari Al-Qurtubi – previous source – Part 2 / p. 256 et seq.
[13] Al-Zayli al-Hanafi, Othman bin Ali – Explaining the Truths Sharh Kanz al-Daqaqiq – The Grand Emiri Press – Bulaq – First Edition – 1869 – Part 6 – p. 107. Abu Al-Walid Al-Qurtubi, Muhammad bin Ahmad bin Muhammad bin Rushd – The beginning of the mujtahid and the end of the muqtasid – Dar Al-Hadith – Cairo – 2004 – Part 2 – p. 394
[14] Al-Khatib Al-Sherbini, Shams Al-Din Muhammad bin Muhammad – Mughni who needs to know the meanings of the words of the curriculum – Dar Al-Kutub Al-Ilmiyya – first edition – 1994 – vol. 5 – p. 287 et seq.
[15] Narrated by Al-Bukhari – Book of Blood Money – Chapter: Whoever kills someone who kills him is the better of both worlds – Part 6/2522 – No. 6486
[16] Al-Risa’, Abu Abdullah Muhammad bin Qasim Al-Ansari – Explanation of the Hudood of Ibn Arafa – Scientific Library – First Edition – 1931 – p. 314
[17] Narrated by Abu Dawud in Al-Sunan – Chapter: The Imam Orders Pardon for Blood – Part 4/266 – No. 4499
[18] Hosni, Mahmoud Naguib – Science of Punishment – Dar Al-Nahda Al-Arabi – Second Edition – 1973 – pp. 63 et seq.
[19] See footnote 2.
[20] Court of Cassation – Criminal – Appeal No. 22204 of Judicial Year 66 dated 10/12/1998, Technical Office 49, Part No. 1, Page No. 1060
[21] Court of Cassation – Criminal – Appeal No. 5182 of Judicial Year 52 dated 12-26-1982, Technical Office 33, Part No. 1, Page No. 1054
[22] Case No. 650 of 2023 registered as No. 201 of 2023, South Mansoura.
[23] https://www.elwatannews.com/news/details/6650558
[24] Hosni, Mahmoud Naguib – previous source
[25]Document No. E/CN.15/2002/L.2/Rev.1
[26]Al-Basha, Faiza Younis – Restorative Justice in Criminal Matters – Al-Jami Magazine – Issue 8 – 2005 – pp. 16 et seq.
[27]Pursuant to Presidential Decree No. 536 of 1981 issued on October 1, 1981 and published in the Official Gazette No. 15 on April 15, 1982.
[28]Godi, Zeinab – The death penalty between national legislation and international law – Master’s thesis – Mentouri University – Algeria – 2011 – p. 101
[29] Article 6:
- The right to life is an inherent right of every human being. The law must protect this right. No one may be arbitrarily deprived of his life.
- In countries that have not abolished the death penalty, this punishment may only be imposed as a penalty for the most serious crimes in accordance with the legislation in force at the time the crime was committed and not in violation of the provisions of this Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty may not be applied except pursuant to a final ruling issued by a competent court.
- When deprivation of life is a crime of genocide, it is understood a priori that there is no text in this article that allows any State party to the present Covenant to exempt itself in any way from any obligation that it may have under the provisions of the Convention on the Prevention of the Crime of Genocide. And punish it.
- Any person sentenced to death has the right to seek a special pardon or commutation of the sentence. A general pardon, special pardon, or commutation of the death penalty may be granted in all cases.
- It is not permissible to impose the death penalty for crimes committed by persons under eighteen years of age, nor to carry out this penalty on pregnant women.
- There is no provision in this article that may be invoked to delay or prevent the abolition of the death penalty by any State party to this Covenant.
[30]Definition of jurist Jusran – Hassanein, Muhammad – Al-Wajeez in the Theory of Right in General – p. 303
[31] Economic and Social Council Resolution No. 56 of 1984 regarding international protection rules relating to persons facing the death penalty
[32] https://n9.cl/fae7m
[33] Al-Derbi, Abdel-Al – International human rights obligations in the internal sphere – Al-Manhal Platform (Arab Academy) -platform.almanhal.com/Reader/2/58358
[34] The second paragraph – Article 381 – Criminal Procedure Law No. 150 of 1950
[35]Al-Fiqi, Imad – The death penalty in Egyptian legislation, its roots and analysis – The Arab Organization for Penal Reform – 2007 – p. 187 et seq.
