Singapore: Death sentences of Tan Chor Jin, Hamir Hasim, Kamal Kupli and Abdul Malik Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 4 males
Character of reply: Allegation rejected but without adequate substantiation
Observations of the Special Rapporteur The Special Rapporteur notes the legal interpretations asserted by the Government of Singapore and appreciates the information provided. Urgent appeal dated 29 February 2008 I would like to draw the attention of Your Excellency’s Government to two cases. One concerning Tan Chor Jin and the other concerning Hamir Hasim, Kamal Kupli and Abdul Malik:
According to the information I have received:
Mr. Tan Chor Jin, was found guilty of the murder of a man who allegedly owed him money. He was sentenced to death, which is mandatory for that offence, on 22 May 2007. On 30 January 2008, his final appeal against his sentence was rejected by the High Court.
Mr. Hamir Hasim, Mr. Kamal Kupli and Mr. Abdul Malik, all Malaysian nationals, are at risk of imminent execution. On 1 March 2007, they were convicted for the murder of a man they robbed in December 2005, and sentenced to death, which is mandatory for that offence. On 18 February 2008, their final appeal was rejected by the Court of Appeals.
I recall the extensive prior correspondence on the subject of the mandatory death penalty between myself and the Your Excellency’s Government. I am aware of the view of the Government that “the death penalty is primarily a criminal justice issue, and therefore is a question for the sovereign jurisdiction of each country”. Criminal justice issues do, however, fall squarely within the domain of international human rights law and are in no way immune from its requirements. Moreover, the organs of the United Nations concerned with human rights, including the General Assembly, the Economic and Social Council, and the Human Rights Council (together with its predecessor body), have insisted that respect for those safeguards required to protect the human rights of persons facing the death penalty is indeed a matter of international concern. (See, e.g., GA Res. 61/173 (2006), para. 4.) In particular, it has long been understood that, as the first Special Rapporteur on extrajudicial, summary or arbitrary executions stated in 1985, the Safeguards guaranteeing protection of the rights of those facing the death penalty adopted by the Economic and Social Council would “serve as criteria for ascertaining whether an execution is of a summary or arbitrary nature” (E/CN.4/1985/17, para. 24).
In this regard I further wish to bring to the attention of Your Excellency’s Government the consistent finding by international expert bodies that laws imposing mandatory death sentences, such as the Penal Code, unavoidably violate human rights law. The distinctions that may be drawn between offences in legislation are not sufficient to reflect the full range of factors relevant to determining whether a death sentence would be permissible in a capital case. Respect for the human rights to life and to freedom from cruel, inhuman or degrading punishment recognized in the Universal Declaration of Human Rights is impossible to ensure without permitting the judiciary to evaluate whether the death penalty would be permissible in each particular case. In this regard, I find the conclusions of the Indian Supreme Court particularly persuasive. While that court’s analysis pertains to the provisions of the Constitution of India, it is no less relevant to our understanding of the provisions of international human rights law:
It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example ‘Theft’, ‘Breach of Trust’ or ‘Murder’. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. . . . A standardized mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances which constitute a safe guideline for determining the question of sentence in each individual case. The infinite variety of cases and facets to each would make general standards either meaningless ‘boiler plate’ or a statement of the obvious. . . . The task performed by the legislature while enacting [mandatory death penalty legislation] is beyond even the present human ability. . . . (Mithu v. State of Pubjab, 2 S.C.R. 690, 704, 707–708 (1983) (internal citations and quotation marks omitted).)
As I have noted in earlier correspondence and in my latest report to the Human Rights Council (A/HRC/4/20), similar conclusions have been reached by numerous human rights bodies, including the UN Human Rights Committee, the Inter-American Commission and Court of Human Rights, and the Judicial Committee of the Privy Council. In addition, I might note that the Commission on Human Rights has “urge[d] all States that still maintain the death penalty . . . [t]o ensure . . . that the death penalty is not imposed . . . as a mandatory sentence.” (CHR Res. 2005/59, para. 7(f).) Ultimately, as noted by the Supreme Court of India, “law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead.” (Mithu v. State of Pubjab, 2 S.C.R. 690, 704 (1983).)
In light of this review of basic human rights norms recognized by the international community, I would respectfully request Your Excellency’s Government to take all necessary steps to avoid executions that would be inconsistent with accepted standards of international human rights law.
Response from the Government of Singapore dated 9 April 2008 The death penalty in Singapore is provided for as part of the judicial process. Its imposition is neither summary nor arbitrary. It thus does not fall within the mandate of the office of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Mr Tan Chor Jin, Mr Hamir Hasim, Mr Kamal Kupli and Mr Abdul Mali were convicted and sentenced in a court of law where due process and safeguards were fully complied with. They were represented by legal counsel during the proceedings save for Mr Tan who was offered legal representation by the state but chose to represent himself at the trial.
Singapore recognises that the death penalty is a severe penalty and should only be imposed for the most serious crimes in accordance with the law in force at the time of the commission of the crime. There is no question that murder and firearms offences are regarded by every country as some of the most serious offences under their domestic penal laws. The Singapore Govemment considers that the gravity of the crimes of murder and the use of arms (which Mr Tan was convicted of) warrants the imposition of the mandatory death penalty.
Singapore agrees that criminal justice matters are not "immune" from the requirements of international human rights law. International human rights law does not, however, prohibit making the death penalty mandatory. There is no consensus for or against capital punishment, including mandatory capital punishment, imposed according to the due process of the law. Key international instruments that apply to countries with a wide divergence in cultures and values do not proscribe the use of the death penalty in their texts.
Mandatory sentences are provided for only after careful consideration based on factors such as the seriousness of the offense. They are also reviewed on a periodic basis.
Singapore's laws which provide for tough mandatory penalties, for example, for drugs and firearms offenses, are well known not only in Singapore but also internationally. As a result of our tough stand against murder and the illegal possession and use of firearms, the murder rate in Singapore is low and the incidence of the use of firearms in Singapore by criminal elements, including triads and gangs, is very rare. Our tough stand against crime in general has made Singapore one of the safest places in the world to work and live in. The Singapore Govemment has a responsibility to protect the interests and welfare of Singaporeans and those living in Singapore, and cannot allow the actions of an individual or a few individuals to harm the larger interests of society.
It bears reaffirming that all capital cases in Singapore are conducted with due process and judicial safeguards. All capital cases in Singapore are heard by our High Court, and the sentences meted out in accordance with the laws passed by the Singapore Parliament that is freely elected by its people. Your mandate is confined to extrajudicial, summary or arbitrary executions. Whether or not a death sentence should be mandatory in our view lies outside your mandate. By raising the question, you have clearly exceeded the authority of your office.
Somalia: Death Sentences of Abdulayhi Dahir Muse Afweyne and Mohammed Abdi Wardheere Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 2 males
Character of reply: No response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Government of Somalia has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Allegation letter dated 13 July 2007sent with the Independent Expert appointed by the Secretary-General on the situation of human rights in Somalia
We are writing regarding the reported execution of Abdulayhi Dahir Muse Afweyne and Mohammed Abdi Wardheere on 5 July, 2007 who were convicted of murder. It is my understanding that:
The above two may have been convicted by a military court of the killing of Osman Ali, the deputy district commissioner of Mogadishu's Horuwa district which occurred on 2 July, 2007. The executions of the two above persons at the police school in Mogadishu apparently occurred before a large crowd. According to the reports I have received these two executions would be the first meted out by a court of the Transitional Federal Institutions since they embarked on regaining authority over Somalia and rebuilding State institutions with assistance from the United Nations and others.
While we do not wish to prejudge the accuracy of these allegations, we respectfully remind your Excellency that “in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the (International Covenant on Civil and Political Rights) (“ICCPR”) admits of no exception” (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10). We note that Somalia is a State Party to the ICCPR and that these guarantees include the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. We do not have any detailed accounts of the procedures followed in relation to the trials of the two individuals but note that the Transitional Federal Charter contains provisions in its articles 17 and 57 that are broadly in line with international standards.
Relevant to the cases at issue, the right to a fair trial further includes the guarantee of “adequate time and facilities for the preparation of [one’s] defence and to communicate with counsel” (Article 14(3) (b) ICCPR) to which Somalia is a State Party. In particular we are concerned that the reported period of three days from the date of the commission of the offence to the time of execution appears to have been in violation of the above provision.
It is our understanding that the executed men in this case were not afforded the right to have their death sentences reviewed by a higher tribunal according to law, in violation of article 14(5) ICCPR to which Somalia is a State Party.
Similarly the executions as carried out in these cases may have been in violation of common article 3 to the Geneva Conventions which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
We would like to recall the principle whereby all States have “the obligation (…) to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions”, as recently reiterated by the 61st Commission on Human Rights in Resolution 2005/34 on “Extrajudicial, summary or arbitrary executions” (OP 4). The State obligation to conduct independent and impartial investigations into possible violations does not lapse in situations of armed conflict, as in Somalia. As noted in a previous report to the Council, whilst the modalities of this obligation in situations of armed conflict have not been fully settled, some points are clear:
"While human rights law does not dictate any particular institutional arrangement for the administration of justice, neither does it permit exceptions to its requirements. . . . As an empirical matter, subjecting allegations of human rights abuse to military jurisdiction often leads to impunity. In such situations, investigation and prosecution by bodies independent of the military is necessary." (E/CN.4/2006/53, para. 37).
In light of this review of basic human rights norms recognized by the international community, I would respectfully request Your Excellency’s Government to take all necessary steps to avoid executions that would be inconsistent with accepted standards of international human rights law. Whilst we recognize the current serious security challenges facing Somalia, the rule of law must be upheld and human rights safeguards respected as required under domestic, regional and international law.
It is our responsibility under the mandates provided to us by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify cases brought to our attention. Since we are expected to report on this case to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters:
1. Is the information above regarding the execution of the two men accurate?
2. Please provide details of all court proceedings pertaining to these two individuals, if any, whether before civil or military courts
3. Please provide the details of any investigation conducted by the authorities into the execution of the above two men.
Somalia: Killing of Civilians in Mogadishu Violation alleged: Violations of the right to life during armed conflict; Deaths due to attacks or killings by security forces
Subject(s) of appeal: Unknown number of civilians
Character of reply: No response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Government of Somalia has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Allegation letter dated 21 September 2007 I would like to bring to the attention of your Excellency’s Government reports I have received regarding incidents of the killing of civilians in Mogadishu between 29 March – 1 April, and 18 April – 26 April 2007. I have also written to the Government of Ethiopia regarding related allegations.
According to the information received:
Ethiopian forces, with the consent of your Excellency’s Government, were stationed in Mogadishu to reduce and prevent insurgent attacks, and with the aim of ensuring the Transitional Federal Government (TFG) of Somalia’s control of the capital. However, it is alleged that in seeking to do so, the Ethiopian forces indiscriminately and disproportionately deployed mortar, rocket, and artillery attacks against insurgent forces into civilian neighbourhoods. Insurgents often used mobile tactics by launching mortars at Ethiopian and TFG bases from a civilian populated area, and then leaving the area. It is alleged that Ethiopian counter-attacks and offensives against insurgents generally struck the civilian areas from which insurgent attacks were launched, but that Ethiopian forces failed to take feasible precautions to avoid or minimize civilian casualties, failed to verify that targets were military objectives, and failed to discriminate between military and civilian objectives. The evidence provided for these allegations is that the Ethiopian forces engaged in the following means and methods of warfare: area bombardments of civilian areas (using weapons such as BM-21 multiple barrel rocket launchers); firing mortars indiscriminately (by failing to systematically use spotters or guidance systems when firing from distances of over two kilometres) into populated civilian areas; and firing rockets into civilian neighbourhoods in systematic patterns at regular intervals (evidencing a lack of military targeting). According to allegations received, these attacks occurred between 29 March and 1 April 2007 (in the Somali neighbourhoods of Bar Ubah, Al-Baraka, Shirkole, Towfiq, Hamar Bile, Suq Ba’ad, and Hamar Jadid), and between 18 April and 26 April 2007 (in the Somali neighbourhoods of Towfiq, Hamar Jadid, Bar Ubah, Hararyale, Suq Ba’ad, Jamhuriya, and Huriwa). The attacks are alleged to have resulted in the deaths of between approximately 700 and 1300 Somali civilians.
We have also received allegations that some civilian areas may have been intentionally targeted by Ethiopian forces. Allegations received suggest that while most attacks were directed against neighbourhoods used by insurgents to launch attacks, some neighbourhoods without any insurgent presence were also hit.
With regards to the role of your Government in these attacks conducted primarily by Ethiopian forces, it is alleged that four factors indicate that your Government was aware of, appears to have consented to, assisted with, encouraged or requested the bombardment of civilian areas in the manner detailed above. First, it is alleged that TGF forces militarily supported the Ethiopian forces during the March and April offensives. Second, your Government made public statements warning civilians in specific neighborhoods of impending attacks, thereby indicating your fore-knowledge of attacks on populated civilian areas. Third, the warnings to civilians are alleged to have been grossly inadequate, consisting of only a small number of statements made on radio by Government officials, and directed at areas inhabited by tens of thousands of residents all expected to vacate simultaneously within a few hours notice. There were no Government attempts to systematically inform civilians to leave certain locations, no guidance offered for civilians to follow when ordered to vacate, and apparently no measures were taken to ensure that areas were in fact vacated before bombardments began. It is also alleged that in some areas, warnings came after bombardments had already begun. Fourth, that President Abdullahi Yusuf stated on public radio (Voice of America Somali Service, 21 March 2007) that your Government would “bombard [any place from which a bullet is fired by insurgents] regardless of whoever is there”, and that he replied “Yes we will bombard it!” in response to the question: “Even if civilians are there you are going to bombard it?”.
In addition, I have received allegations that Ethiopian troops summarily executed identifiable Somali civilians on your Government’s territory. The following specific allegations have been brought to my attention:
1. On 29 March 2007, it is alleged that an Ethiopian soldier intentionally shot and killed a civilian woman. The woman, approximately 50 years old and identified as “Noura”, was allegedly shot with a machine gun, and died immediately in the Charcoal Market in Towfiq while hiding behind a lorry.
2. On 19 June 2007, it is alleged that when an Ethiopian military convoy was hit by a roadside bomb near Jaalle Siyad College, the soldiers fired on a civilian minibus at the Industrial Road at approximately 3 p.m., killing an unidentified passenger.
3. On 19 June 2007, the soldiers from the attacked convoy are further alleged to have raided a civilian house in the Damanyo neighborhood, and at approximately 4.30 p.m. to have intentionally shot and killed three brothers named Abdulkadir Ibrahim Diriye, Sharmarke Ibrahim Diriye, and 17 year old Jama Ibrahim Diriye; and a fourth man, 19 year old Abdi Abdullahi Abdulle. The men were found by relatives shortly after the shootings, each body evidencing multiple bullet wounds. Abdi Abdullahi Abdulle was found dead with his hands tied behind his back.
While I do not wish to prejudge the accuracy of these reports, I would like to refer Your Excellency’s Government to the fundamental legal rules applicable to all non-international armed conflicts under international humanitarian law and human rights law. Under international humanitarian law, the conflict in Somalia is a non-international armed conflict because, despite the involvement of two states, your country consented to the intervention of Ethiopia. Pursuant to its obligations under the Geneva Conventions and customary international law, your Government is required in an armed conflict to respect – and to ensure respect for – the rules of international humanitarian law.
Specifically, your Government is under an obligation to distinguish between combatants and civilians and to direct attacks only against combatants (Rules 1, 6 and 7 of the Customary Rules of International Humanitarian Law identified in the study of the International Committee of the Red Cross (“Customary Rules”)). Indiscriminate attacks are prohibited (Rule 11 of the Customary Rules). Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, or village are prohibited (Rule 13 of the Customary Rules). Further, launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited (Rule 14 of the Customary Rules). All feasible precautions must be taken to avoid and minimize incidental loss of civilian life (Rule 15 of the Customary Rules). This explicitly requires that parties to a conflict must give effective advance warning of attacks which may affect the civilian population (Rule 20 of the Customary Rules). Further, your Government is under an obligation to not encourage persons or groups engaged in the conflict in Somalia to act in violation of international humanitarian law, which includes an obligation not to encourage the indiscriminate bombing of civilian areas.
I would like to bring to your Government’s attention that your Government has a duty to investigate, prosecute, and punish all violations of the right to life, a right enshrined in humanitarian and human rights law. In relation to the allegations of intentional targeting of civilian areas and of allegations that Ethiopian forces summarily executed civilians, I would further like to bring to your attention that intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities is a war crime (Article 8(2)(e)(i) of the Rome Statute of the International Criminal Court). Your Government has a specific obligation to investigate war crimes allegedly committed by your nationals or armed forces, or on your territory, and, if appropriate, to prosecute the suspects (Rule 158 of the Customary Rules).
It is my responsibility under the mandate provided to me by the Commission on Human Rights and the Human Rights Council to seek to clarify all cases brought to my attention. Since I am expected to report on these alleged incidents, I would be grateful for your cooperation and observations on the following five matters:
1. Are the facts alleged in the above summary accurate? Please refer to the results of any police, medical, or military investigation, or judicial or other inquiries carried out in relation to the alleged incidents.
2. Please provide the details of any disciplinary measures imposed on or criminal prosecutions against members of the armed forces of the TGF or of Ethiopia responsible for the alleged incidents. Please specifically indicate whether any forces were or will be charged with war crimes.
3. With respect to the allegations of your Government’s role in Ethiopian attacks on civilian areas, did your Government assist and/or encourage Ethiopian forces to carry out indiscriminate attacks on civilian neighborhoods?
4. If not, what measures were taken by your Government to ensure that Ethiopian and/or TGF forces complied with international law while carrying out military attacks on your territory? Specifically, what precautions, if any, were taken to ensure that effective advance warnings of attacks were given to civilians? What safeguards, if any, were then employed to verify that only legitimate military targets were attacked? What methods were adopted to distinguish between military and civilian objects? What precautions were taken in the launching of attacks to minimize loss of civilian life? What means and methods of warfare were adopted to avoid incidental loss of civilian life, and to ensure that incidental loss of life was not excessive in relation to the anticipated military advantage?
5. Please state whether any compensation was, or is intended to be, provided to the families of the victims.