Issues on Capital Punishment

31.10.2004

The Brother the Leader of the Revolution addresses the heads and members of judiciary organs in the People’s General Committee of Justice, academicians, graduate and advanced degree students in the School of Law of al-Fateh University, The Seventh of April University, Al-Marqab, Academy for Graduate Studies, and the Green Auditorium

I wish you well in Ramadan. How are you? I greet you in this Holy Month and thank you for being here. I know you are fasting. Forgive me for the inconvenience.

I would like to avail myself of this opportunity to share with you my thoughts on some legal questions. You are Professors and students of law. I believe we are about to submit a draft penal code to the People’s Conferences. This new draft contains new amendments. We only make suggestions because the final decision has to be taken by the People’s Conferences.

The People are above the principles and above the law because they lay down principles and make the law.

One may say principles take precedence; another says no, the law rules. We say the people rule. The people are above principles, and above the law. They make the laws; they lay down the principles of their choice that suit their circumstances and their lives.

The conferences of the people adopt the laws and authority is the prerogative of the people’s conferences, which adopt the laws; the laws could be amended and rescinded. The People rescind and amend the law. Nothing that we say here is final because the People’s Conferences have the final word. However, as long as we have an opportunity to make our contributions to clarify these issues, we must do what we can.

The world calls for an abolition of capital punishment but practically goes in the opposite direction.

The world, as you may be aware, declares that it will abolish capital punishment.

This is only a lip service. In reality, the world takes the opposite direction.

It expands capital punishment but declares that it is moving in the direction of the abolition of capital punishment. We must prove this to the world. We must not let any governmental or non-governmental organization insult our intelligence. If they fooled other people, they cannot fool us. We know that the world declares that it will abolish capital punishment or wishes to abolish capital punishment, but in practice, it is expanding capital punishment. What is more dangerous is that the death sentence is carried out extra-judicially and collectively. This is dangerous.

The death sentence is carried out collectively and extra-judicially!!

Therefore, the call to abolish capital punishment in courts is naïve and has no moral force particularly when it is seen in the context of cases of capital punishment carried out collectively and extra-judicially.

Furthermore, the countries that abolished capital punishment or that call for its abolition are the same countries that enforce the death sentence on a wide scale.

The states that are calling for the abolition of a death sentence handed down by courts are the same states that resort to collective wide scale extra-judicial capital punishment.

Therefore, arguments by international organizations or states against another state that did not abolish capital punishment in courts hold no ground. Those who declared that they abolished capital punishment and other major powers are still enforcing capital punishment collectively and extra-judicially. They call upon states that have not yet abolished capital punishment to do so; in return, those same states call upon them to stop imposing the death sentence extra-judicially. Under these circumstances, a death sentence handed down by courts is more legal, legitimate and humane than a summary execution that lacks due process and legal guarantees.

The Israelis have abolished capital punishment. Who believes them? If they themselves say that capital punishment is abolished, how then do they commit mass killings? It is easier if the Palestinians were to be apprehended and tried in Israeli courts and if they had access to counsel.

America sentenced me to death. It carried out the sentence, execution by bombs style, but my life was spared for reasons beyond America’s control.

America opposes the death sentence. It may have abolished capital punishment in some but not all states. Nevertheless, it still carries out a collective form of death sentencing. America handed down a death sentence against me; I was condemned to execution by bombs, but for reasons beyond its control, my life was spared. Which is better? Is it better to be tried, have access to counsel, and the right to appeal, or to face a death sentence without guarantees?

We need to make our position clear and reflect that position in our school curricula, and in the arguments, we advance in international fora. Libya is in the limelight. There are those who fear Libya, who want to establish a relationship with Libya, who will invest in Libya, who come as tourists to Libya, who will work in the oil or gas field, or who will have something to do with Libya. There is Barcelona, the European Mediterranean [partnership]; Libya is in the spotlight, and Libya must, therefore, publicize its opinions, and chart the course it intends to follow in international fora. We do not want to become another Turkey, a county that has ambitions for admission to the European Union. The political, legislative and social particularities in Turkey would not qualify Turkey for membership in the European Union according to European standards. Therefore, Turkey’s behavior is random and is not compatible with its reality. The result is ludicrous, even humiliating. In the Turkish context, there are crimes that are serious, and unacceptable. Impunity is not an option.

The Europeans do not give weight to these considerations. They say, “The penalty for these acts must be abolished”. This approach, however, is untenable because if pursued, it will destroy the Turkish society. That society is organized around a given set of values. When those social, political and legislative values are eroded, the society will collapse. We must not be another Turkey. As we take center stage in this era, we cannot afford to be like Turkey. We must be backed by solid arguments to silence our detractors. For this reason, I requested to meet with law professors, students, and judges. It is important that we shed light on the issue.

The world today is divided into two camps: formal and informal. We fear the aggression of the mighty

The world today is divided into two camps: formal and informal. The formal camp is comprised of governments and major powers. International organizations are part of the formal camp. The formal stakeholders could manipulate these organizations, so could the major powers that have veto rights and permanent seats in the Security Council as well as military and economic prowess.

The other camp is called the “informal” camp, which is made of non-governmental organizations established by groups and individuals. They are unrelated to states.

On the world map today, there are two camps: one formal the other informal. Both camps could call for an abolition of capital punishment. Nevertheless, their purposes are different. The formal camp has an agenda. The informal camp is the humanitarian establishment that may call for the abolition of this form of punishment for purely humanitarian reasons, unless they themselves fall victim to manipulation, or are controlled or exploited.

Major Powers like the United States, Britain or the Israelis may infiltrate one of the institutions of civil society and manipulate it. We correctly assume that these groups, the civil non-governmental organizations are informal organizations. When they appeal for the abolition of capital punishment in the world, we assume that their appeal is launched for purely humanitarian considerations.

They do not have an agenda. They do not have political or economic interests that they want to advance; they are good Samaritans, decent and kind ordinary people who want to save themselves, their offspring, and humanity at large from capital punishment. For that reason, they established organizations that call for the abolition of this penalty and tried to pressure some states to abolish it too.

World intelligence services are pushing for an end to capital punishment to protect their agents

The formal camp is advocating the same. It calls for an abolition of capital punishment and exploits the non-governmental organizations to divert the attention that could otherwise be focused on them. Their objective is different.

The formal world headed by Major Powers wants to abolish capital punishment, but it has an agenda. Unlike humanitarian organizations, it is not seeking the abolition of capital punishment because it is a good deed, and as such, is its own reward. They are serving their own interests. Some states have agents in Libya, Egypt, Iran or India, who could be Libyan, Egyptian, Iranian or Indian nationals or could be nationals of other countries. Those states want to protect their agents from execution.

They want to station their agents in countries where the death penalty has been abolished. This may encourage agents to work for intelligence circles. All those intelligence services have a stake in abolishing the death penalty in countries in which their agents are stationed because they fear for their safety.

The agents themselves will be afraid to work in a country that still enforces the death penalty. The situation of the agent in that country will be different from his situation in a country that does not enforce capital punishment. The spy and the traitor will know that they will face death if their cover is blown.

Therefore, the countries that seek the abolition of capital punishment are not concerned about the welfare of the people of this state, or the nation. They are doing this for the sake of their agents.

The abolition of capital punishment may be pursued to protect foreign agents.

This was the scenario at the security and intelligence level. Then we have smaller scale levels. Some states install puppets in other countries to govern on their behalf. Therefore, they want to abolish the death penalty that may be enforced against puppets and traitors. They want to keep them out of harm’s way, so that they continue working for them.

How could the call for the abolition of the death penalty through legal avenues be deceptive?

Governments, official circles, intelligence services, and foreign services are calling for the abolition of capital punishment that is still in force in Third World countries in defense of their agents. They want to guarantee that these agents would continue to work in these countries but not face the death sentence.

The abolition of the death sentence encourages them. They will work knowing that beheading is not permissible; any other sentence, like a jail sentence, is fine. Therefore, the call for the abolition of capital punishment will not fool us. We are not naïve and we are not children. They cannot make a mockery of us.

What is the difference between handing down a death sentence through a legal system, or handing down a collective death sentence by firing rockets, bombing, starving or terrorizing people?

We call for the abolition of the death sentence that is carried out extra-judicially

We wish to abolish capital punishment but want to define what capital punishment we are referring to. First, we want the indiscriminate death sentences handed down to people extra-judicially by bombs, rockets and starvation abolished. We have ten numbers, from one to ten, we cannot choose one only and say number seven or number eight or three for that matter. The ten counts are all death sentences, so why chose only number seven and abolish the rest. All the sentences are death sentences, and they must be all abolished.

They are death sentences executed by bombing, firing rockets, by planes even by starvation, terror, or disease. In the final analysis, a sentence handed down by courts is better. It is not a surprise attack like an air raid carried out while we are fast asleep, or like an inter-continental missile.

A death sentence handed down by courts is ultimately better. States, which indiscriminately carry out death-sentences extra-judicially, will be found guilty, while those, which enforce capital punishment in courts, will be acquitted. This is what we have to say at the United Nations and the United Nations system, at human rights organizations or at Amnesty International. We can advance this logic.

We are against executions and against the death sentence. A death sentence is a death sentence whether carried out by a laser bomb, a cruise missile, a firing squad, a rope, an electric chair, poison gas, or by lethal injection.

These are all executions. Is it not better to bring the accused to court, guarded against any possible harm, with a defense lawyer, an opportunity to hear charges against him, to defend himself, appeal the sentence or have the sentence commuted even after it is handed down? A governor, when this post exists, usually hands down the sentence or signs of the death sentence.

This is the case in the Supreme Judicial Council in Libya. The Council can commute the death sentence into a jail sentence. It is possible to file new evidence and the convicted could be found innocent. Given these circumstances, which do you think is better: this scenario or that in which you could be suddenly executed by an air raid, by tank fire, a cross-continental missile or by other means that deprive you of your right to a defense lawyer? Who could be your defense lawyer against a Cruise Missile? Against a Cruise Missile, you may have a Patriot. However, you may not have a Patriot. It is impossible for every state, household, street, and family to have a Patriot or an anti-missile defense device. As long as you do not have that, you do not have the means to defend yourself.

As long as you do not have an anti-missile defense device, you do not have a defense lawyer. You are in a big court that hands down indiscriminate death sentences. The victim does not have a lawyer and cannot defend himself against a nuclear bomb, an intercontinental missile, cluster bombs, or incendiary devices (Napalm). Neither does the victim have anti-chemical and bacteriological devices, no masks or protective gear, no shelters. They went high-tech in executing the death sentence.

They developed bombs and missiles that can penetrate protective barriers and hunt down the target. Therefore, someone can come to an ordinary court accompanied by a lawyer, a competent famous lawyer while another is unable to get this lawyer. You enter the shelter but they develop an anti-shelter bomb. They deprive you of the means for self-defense.

These are the worst courts, courts where people get the death sentence but lack the means to defend themselves, protection, the opportunity to appeal the sentence, or the hope to be exonerated. They will be executed, extra-judicially. The shrill voices of the mighty began to resonate around the world about the death penalty, which continues to be carried out by courts around the world.

Half of the countries of the world enforce the death penalty; the other half or even less abolished it. The campaign against capital punishment suffered a setback after the attacks against New York. It suffered a major setback. Torture, violence and brutality are tolerated. America declared that it will hand down death sentences against its adversaries and will, for that purpose, use all available means, including covert ones. These means could remain secret until kingdom come.

The American President himself said that. What is a death sentence? What is the purpose of the death sentence? Society hands down a death sentence against a criminal because it wants to get rid of this criminal. The criminal is the enemy of society. A criminal disrupts and threatens society. Therefore, society hands down a death sentence against this individual in a court.

Let us take the example of Bin Laden. He is the enemy of America. The U.S. states that if it finds Bin Laden it will kill him. It will also kill Al-Zarqawi if it finds him. Is this not what they say? Why does America say that? It does because America considers him an enemy. You kill your enemy.

Why do they say society should not kill its enemy if the enemy endangers the welfare of society? What shall we do? We should agree at the United Nations or at other international fora that killing a human being is inadmissible, that we cannot spill blood neither in courts nor by jets, ships, cruise missiles, starvation, covert assassination or any other means.

The Israelis abolished the death penalty in courts. They, however, continue to execute Palestinians extra-judicially, on a daily basis and on a massive scale. What then is the value of the abolition of the death penalty in Israeli courts? This is a charade, but no one seems to notice. Are the Palestinians not killed on a daily, deliberate and premeditated basis? They track a Palestinian, plant a homing device in his car or house that emits signals to the Apache helicopter which hunts him down. Is that not a deliberate death sentence by a firing squad executed extra-judicially outside the courts?

The world watches the execution of the Iraqi and Palestinian peoples carried out outside the courts and without due process.

Human beings must be respected wherever they are.

We will not give in to this travesty. Human beings must be respected wherever they are; human life is precious and must not be wasted. They must put an end to wars, invasions, and colonialism.

We, on our part, must do likewise. This does not only apply to the abolition of the death penalty in courts but to executions in general, executing individuals and peoples.

In a court of law one person is executed. Outside the courts, an entire people are executed. A death sentence has been issued against the Iraqi people and against the Palestinian people in an extra-judicial context, without trial or due process.

Being serious about abolishing the death penalty means putting an end to bloodletting anywhere, by ending invasions, aggression and wars.

I think that the abolition of the death penalty that is collectively enforced is more significant that the abolition of the death penalty handed down against individuals. The abolition of the death penalty outside the courts is more important than the abolition of the death penalty inside the courts. It does not mean that we support the death penalty. On the contrary, we insist on the abolition of the death penalty on a wide and not limited scale only. Opting for the latter will render the purpose meaningless. They abolished the death penalty in courts but continued to strike at us outside the courts, killing us indiscriminately. You should stop executing us in public squares and streets. We are sincere in our desire to abolish the death penalty in the true sense of the word, in the judicial and extra-judicial contexts. Let us, however, begin with what is more significant. Let us put an end to executions outside the courts, indiscriminate massive scale executions, and death squads, otherwise called armies, which must stop executing people. Seriously, the abolition of the death penalty is a civilized act. It should not be the result of pressure. Turkey is a case in point. Pressures are mounting on Turkey prior to its admission to the European Union; they can mount pressures against us in the process leading to the Mediterranean Partnership. The Third World could be pressured to enter into partnerships with Western societies.

The call to abolish the death penalty has become a bargaining chip in international relations.Being civilized and enlightened does not necessarily entail abolishing the death penalty.

A backward country decides to abolish the death penalty to satisfy some or reap certain benefits. Shockingly though, it continues to exact this punishment and liquidate its opponents through unconventional means – outside the courts and without legal counsel. The result is worse. This country did not abolish the death penalty due to enlightenment, sophistication, or culture.

It did not do it because its society is so civilized it cannot fathom killing human beings. Not at all. They did not get there yet. They are extremely backward. People kill each other, and that is quite normal! To enter the European Common Market, the European Union, the Mediterranean Partnership, Barcelona, the United Nations, this or that organization, to get assistance, to prevent them from staging a coup against you, out of courtesy you, for example, say, “I abolished the death penalty”. This act is not a proof of sophistication. The country that abolishes the death penalty is a country where no man stabs or shoots another man to death.

How do you abolish the death penalty in courts then allow people to shoot, stab or club each other to death or run each other over by cars? When you speed in a car, you may be about to kill someone. If you are civilized, you will not speed because speeding up may be a prelude to killing passengers in another vehicle or pedestrians strolling down the street. You could be one of them. If you die, you would have committed suicide.

How could you abolish execution in courts but allow it to remain in force outside the courts?

When a man is sophisticated and careful enough he controls the speed of his car because he knows the consequences of speeding. He knows better than to own a knife that he would use to kill a fellow man or a shotgun that he may even use in self-defense. Why? Because the other party is sophisticated and civilized, and would not use a knife or a shotgun. Only then will the abolition of the death penalty be the result of a higher calling, a quid-pro-quo and not an act of intimidation, greed, fraud, and hypocrisy.

I have always called for the abolition of the death penalty. Bahrain has abolished the death penalty. It was the only Arab country to abolish the death penalty. Are we to believe that Bahrain has already attained this high degree of sophistication and progress that it no longer needs the death penalty? This is not possible. Bahrain is like Libya and Morocco. We have the same mentality. When did they get there? Libya may be abolishing the death penalty tomorrow.

More than once, I personally called on the People’s Conferences to abolish the death penalty. The Conferences did not endorse this proposal. The reason is that they are still not convinced. How could they be convinced if one may end up being stabbed on the street? If someone knows that stabbing me to death means the death penalty for him then he may not do it. This will deter others.

In a way, my position and that of the People’s Conferences are the same. The Libyan people were prudent and refused to abolish the death penalty. Moammar says the death penalty should be abolished. Maybe he wants to believe that we are a civilized nation. He wants to brag about us in Europe, the United States, the United Nations, Asia and Africa among others. Libya is a civilized nation. It abolished the death penalty.

Moammar thinks this way; we, on the other hand, think in a practical way, we will not abolish the death penalty. I heard them say that in the People’s Conferences. They debated the issue in seminars. I was satisfied that the people said no. They said, do you think the death penalty was easily instated? Our society did not yet reach the stage at which it can abolish the death penalty. Other parties should abolish the death penalty that they enforce extra-judicially and indiscriminately. The call to abolish the death sentence means ceasing manufacturing and exporting weapons. This is what the Libyan people said. We frequently called for the abolition of the death penalty but the Libyan people refused. They believed that we did not reach the stage that would justify this step. The world is largely barbaric; it continues to manufacture atomic bombs, aircraft carriers, chemical agents, artillery, tanks, anthrax and other germs in addition to other instruments of death. It manufactures all of the above then calls on you to abolish the death penalty.

Every day you sharpen a knife and every day you manufacture a knife you do so to slaughter people. How could you ask them to abolish the death penalty? You must abolish knives, stop manufacturing knives, and destroy all weapon stocks.

We will have a measure of confidence that Libya would not attack America, and America would not attack Libya. Iraq would not attack Kuwait and Kuwait would not attack Iraq. Pakistan would not attack India and India would not attack Pakistan, India would not attack China and so on and so forth. When we get to this stage, and when there is confidence, the world and we would have reached an advanced level of progress then we will be fully convinced.

Human life must be spared, and must be equally precious.

When we say we should have one African army in Africa, which is a proposal we submitted to the African Union, and we should disband individual African armies some may come and say, “how could you disband my army? Is it not possible that my African neighbor will mount an attack against me?” In response we say, “Your neighbor does not have an army. We simultaneously requested that it too disband its army.

Be assured, so long as your neighbors do not have armies to commit an act of aggression against you there is no army that could attack you. Your situations are identical. Moreover, should you be victim of an external attack, an African army will defend you.” The day you decide not to execute me, to abolish the death penalty that could be imposed on me and I do likewise, when we have faith in each other, things will fall into place.

This will be the end, and capital punishment could then be abolished. In other words, we should include in the curricula of the schools of law in the Jamahiriya, and we must say in our statements that we cannot be selective in exacting the death penalty. Wasting human life and bloodshed is the same everywhere. Life is equally precious, and must therefore be equally spared.

A Libyan is not different from an American or an Iranian, Indian, Pakistani, Chinese, British or German. A human being is to be respected, and his life must be spared. He must not be executed by bombs or missiles, by hanging or bullets, by electric shock or poison gas.

These are different methods of execution. We must agree on abolishing the death penalty and the means of carrying it out. This approach pursues a secular, civic and social approach that has no theological or religious dimension. If we were to introduce theology into this equation, we will end up in another controversy.

How was the issue of capital punishment, or the law of retaliation in killing addressed in religion, jurisprudence, and philosophy?

A Muslim would respond, religion ordered me to kill the killer. God mandated retaliation, ordered me to cut off the hand of the thief, and ordered me to flog. How can I disobey? Who is going to defend me to god on the Day of Judgment? Who would say, “God do not judge him for failing to apply your law [Sharia], it was me who ordered him to do so”. If they guarantee us that God will not find us at fault on the Day of Judgment because they were the ones who told to follow this or that path, and we carried out the orders and obstructed God’s laws, that is another thing. However, it is impossible.

They cannot do that, nor are they sure it can happen this way. What would you say when you see manifest signs as God addresses you as “O ye who believe?” We should be attentive. It means that God addresses us, saying, “You, people” or “You, Citizens”, then we are the addressees “O you who have attained to faith, Just retribution is ordained from you in cases of killing” we listen to God. What do you want from us? “O you who have attained to faith”, he said. We are listening, Lord. We shall obey. He says, “Just retribution is ordained from you”, “the free for the free, and the slave for the slave and the woman for the woman”. What do we say then? This is ordained. There is nothing more to say. This is our fate. It is sealed. “Fasting is prescribed to you”. That is it. We therefore fast “as it was prescribed to those before you”. So we still fast, fasting is prescribed to us. Do we interpret that? Do we say, “No, we will not fast”? “Prayers are enjoined on believers at stated times”. This is it. Prayers have to be performed at stated times. So we turned our backs to the United Nations, Amnesty International, Human Rights Organizations, the thoughts of philosophers and intellectuals, then we came to turn a new page. Why did we turn to religion? We sought God’s advice and found that God expects us to submit to other demands. In retribution, it is “the free for the free”, for, “in [the law of] just retribution, O you who are endowed with insight, there is life for you”. “And if anyone is slain wrongfully, we have empowered his heir with authority (to demand retribution or to forgive): but let him not exceed bounds in the matter of taking life; for he is helped (by the Law). Therefore, man may demand retribution in killing, but must not exceed bounds in taking life. Therefore, if someone is wrongfully slain, those who are authorized to defend him can demand death for his slayer. His counsel cannot exceed bounds, so his maternal and paternal cousins may not be killed in retribution. “Nor take life – which Allah has made sacred – except for just cause.” This means that god proscribed taking life, which He has made sacred. We then go back to our earlier proposal. We said life is precious and sacred. God made it sacred, and it must not be wasted. No one says the God you worship sanctions killing. We are involved in bloodshed. “Wilt Thou place therein one who will make mischief therein and shed blood? The angels said, Lord, you create Adam, a human being to make mischief.

“[God] answered: “Verily, I know that which you do not know.”” God knows better. He had a reason for creating us although we are involved in bloodshed. God proscribed taking life. They may answer, “The God you worship likes bloodshed in addition to the death penalty.” Absolutely not. Do not “take life – which Allah has made sacred, except for a just cause”. Therefore, the only exception to the prohibition of taking life is when life is taken for a just cause. When there is a just cause, one can take life. There are other verses in the Quran, stressing the sanctity of human life, followed by the word “except”. He sets the conditions for taking life, not through injustice, aggression, colonization, dictatorships, oppression and mutilation. This is dictatorship.

You are about to present a draft penal code to the People’s Conferences. In my opinion, you must take your time to study it carefully. Then you can submit it to the People’s Conferences. You should not hasten to adopt it; it must be thoroughly and extensively debated.

In this law, there is the crime against society, otherwise called haraba. Under this crime, the death penalty is permitted. Haraba is identical to terrorism. It applies to terrorism. The word Haraba is not God’s word. Jurists coined this word. They may have coined it from the verse: “The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land”. This is what you can use as a basis for the Terrorism Act.

The counter-terrorism act is what you call haraba. It should not be called Haraba, because haraba is not a word used by God. God said, “The punishment of those who wage war against Allah”. They coined the word from the Arabic “yuhariboun”, i.e., wage war, against god and his prophet. What are the acts punishable under this concept? The include banditry, terrorizing people by threatening their security on the roads, at home, or just anywhere among other things. This is terrorism. They annihilate people under the pretext of combating terrorism. The result is that when we counter terrorism inside the courts and hand down death sentences some say, “Do not sentence a terrorist to death”.

The moment we discuss things from a theological point of view of, someone like Dr. Rajab Aboudabous may present a very different perspective. We do not know where it could take us, it may be right, and it could be wrong. I am confident that like Dr. Aboudabous, you may respond that the verse “The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land” was revealed on a specific occasion. Therefore, he will refer us to the historical context of revelation of the surahs. “DOOMED are the hands of the Father of Flame! And doomed is he. What will his wealth avail him, and all that he has gained?” They are verses we recite with owe and respect.

They however concern Abou Lahab, the father of the flame and his spouse. They burnt firewood on a road that Mohammad used to travel. God told them that they would both be burnt in a fire of blazing flame on the Day of Judgment. The story ends there with Abou Lahab and his spouse. God responded to an incident. “Allah has indeed heard the story of the woman who pleads with thee concerning her husband and carries her complaint to Allah”. This is the story of a woman who had a problem with her husband, and God revealed the solution in this Quranic verse. Aisha was accused. God exonerated her. God revealed this verse, said that she is innocent, and her accusers in Medina were liars. So one person was wrongfully charged, and god exonerated her. This applies to the spouse of the Prophet. Some went to the prophet and complained because they were poor. The Prophet gave them some camels and a shepherd and directed them to where they should go. This is one version of the story. The other version is that they went to the prophet, converted to Islam and fell sick in Medina because there were many swamps in Medina. They complained to the prophet.The prophet told them “we have camels in the desert, stay in the desert, use the urine and milk of camels as treatment and you will get better.” Apparently, they did but ended up killing the shepherd, stealing the camels and turning back from Islam. According to the narrative, the prophet asked that they be apprehended and brought back, which they were. Their hands and feet were cut off from opposite sides, they were crucified, and their bodies were mutilated. There were other stories. Some said their eyes were gouged out and were never given a second chance, God forgives us. The punishment was exacted. The question is did the prophet issue his orders after the revelation? Did he wonder what punishment he could inflict on people he treated well but who betrayed him in return? They were sick. They converted to Islam. He sent them to the camel shepherd. They slaughtered the shepherd and took the camels. Either God instructed the prophet to exact this punishment, or the prophet improvised and God seconded. When Dr. Abou Dabbous argues the case, he will tell you this is an incident that happened to a group of people in the past, and it has no relevance today.

Dr. Abou Dabbous will refer you to the context of its revelation. Dr. Abou Dabbous who teaches philosophy will look at this story from that perspective. He will say, this verse was revealed because of a group of people who committed a heinous act, and were punished. This does not mean that every time a heinous act is committed peoples’ hands and feet should be chopped of. This argument applies across the board. A thief stole something. At that time, the punishment was that the thief, Male or female, should have their hands cut off.

The question is shall we continue to cut off the hands of thieves? Should this punishment rather apply only to those people, at the time the crime was committed, and under the specific circumstances that prevailed? People steal all the time. Shall they remain without arms? Jesus said he who has not sinned should cast the stone. Is it possible that no one stole anything ever in his life? It is possible that everybody stole something one way or another. Does this mean we cut off the hands of everybody? God says we cut off the hands of thieves, males or females. If we start arguing about this, and we arrive at solutions, it will no longer be a religion but will become positive law.

This is the case with Islamic Sharia (jurisprudence). Islamic jurisprudence is a positive set of laws with the seal of Islam. Islamic Sharia is a positive law, not different from Roman law, Napoleon’s Law and all other laws. They call these laws “Islamic Sharia” to give force to these laws so that the Caliphs and leaders would secure obedience from their people. Caliphs, governors and sultans are consistent; they want to control. How can they control the world and its people without holiness?

Their laws are God’s laws. Therefore, they call the set of laws “Islamic Sharia”. Any breach of the laws would be a breach of Islamic Sharia. You will be running up against Islamic Sharia. This is a serious crime. What is Sharia law? It is interpretations. Malek said, Abu Hanifa said, they interpreted the law. Even Abou Dabbous said, and all what they said became Islamic Sharia. A Muslim interpreted the law and said something today. What he said is not different from what was said before. The only difference is the temporal dimension.

What crimes deserve to be punishable by the death penalty?

We come to the last or penultimate page. I asked for the record of crimes perpetrated in Libya, whose perpetrators deserved the death penalty. I found death penalty cases endorsed by the Supreme Council for Judicial Bodies. I found some of these cases to be questionable.

I found it difficult to understand how they were endorsed. We shall refrain from naming the defendants, but will only cite the judgment. The defendant (sentenced to death) and the victim drank wine, may God preserve us, with others. God says “Satan seeketh only to cast among you enmity and hatred by drinking wine and gambling”. Sure, it is the drinking and the gambling that led to the crime.

That is what happened. Animosity ensued when they were intoxicated, and a misunderstanding between the victim and the perpetrator led to the latter stabbing the former to death.

The motive for the crime was simply a misunderstanding between two intoxicated individuals. The judgment handed down was the death sentence. How could you pass down a death sentence in this case? Who among you could explain the sentence? The crime was not of the first degree. It was not premeditated. They were all intoxicated. Criminal intent is absent in this case. They could be friends. Is there a judge who can explain this to us?

Interventions and Exchanges of views:

[Intervention] in this instance, the victim was harassed.

[Leader] I have one comment to make. Distinguished Judges, should any one of you decide to take the floor, please do not disclose whether you were sitting on the Bench in this case. You may comment on the judgment, even if you were the sitting judge or the Chief Judge, please indicate your opinion only without further explanations.

[Intervention] I was not one of the judges sitting on the Bench in this case, but I read the case as a member of the Judicial Council that endorsed the sentence. The defendant and the victim were not Libyan nationals. They were partying. The victim sexually harassed the defendant. He persisted. The victim sexually abused the defendant. When he did not relent, the defendant stabbed the victim to death. The court found him guilty of murder of the first degree.

[Leader] The person was harassed. He acted in self-defense. How could he be sentenced to death?

[Intervention] He could have defended himself differently, even through passive resistance.

[Leader] What else could he have done?

[Intervention] I do not believe he was in a state of self-defense because the other person did not hate him.

[Leader] This is exactly why I had a question mark in the first place. How could a person like him be sentenced to death? They could have handed down a different sentence. He came with his friend and they were drinking together. They were friends and he did not intend to kill him. The other person sexually attacked him, and he defended his honor with the tool available to him. This act of self-defense led to the death of the victim. How could some one act in self-defense and end up facing a death sentence? Does that mean you must not defend yourself if you want to avoid the death sentence?

[Intervention] The perpetrator intended to kill.

[Leader] Yes, he did. He intended to escape harm, he deliberately sought defense.

[Intervention] He expressed a desire, and deliberately pursued fulfillment. In the documents that were available to the Court, he did not hold or coerce him. The comment that I wanted to make is that when the Judiciary Council is seized with these sentences, it does not debate the substance. It only considers the admissibility or inadmissibility of amnesty. The Council does not assess the crime or the evidence.

[Leader] What are the Council’s terms of reference?

[Intervention] From the Legislative point of view, the Judiciary Council must not have this authority. Pardoning a crime is a discretionary authority usually vested in society and its guardians. The mandate of the Judiciary Council is confined to supervising the judiciary in all matters that are of concern. These are discretionary matters intended to assess whether society is right in granting or withholding amnesty. The Judiciary Council must not decide on these matters.

[Leader] Who should decide then?

[Intervention] Any other authority must do that. The functions of the Judiciary Council are supervisory in nature.

[Leader] We do not have a president, a governor or guardian. We are a self-governing people. We chose the Supreme Judiciary Council because it is in charge of endorsing sentences.

[Intervention] The General Conference of the People must be able to do that. Any organ that can assess the social and political ramifications is in a position to do that.

[Leader] It is difficult for the General Conference of the People to do this. It is difficult for one thousand people to discuss this issue. They meet annually. Fine. On what basis does the Supreme Judiciary Council discharge its functions?

[Intervention] The Council’s mandate is legislative. This function was not in force. It was delegated to the Revolution Command Council. Later on, that function was assigned to the General People’s Committee. No one exercised this function, until it was later on transferred to the Supreme Judiciary Council. I personally believe that the Supreme Council does not think that this is one of its functions. The Council cannot decide whether clemency is or is not due. It administratively supervises the judiciary bodies, and has oversight functions with regard to promotions, mobility, and appointments. Is it better for society if the Council withholds or endorses the penalty? This is the question that needs to be addressed.

[Leader] Excuse me for asking, but let us take as an example a country that is traditionally governed by a president or a king, a person who is the Supreme Guardian of the people. This Guardian endorses decisions and signs off on death sentences. On what basis does he do that? Does he review the decision according to his whims? Someone on death row today may be pardoned today, but if I was in a bad mood tomorrow so be it, the other death row prisoner may die.

[Intervention] In fulfilling this function, we usually seek the assistance of local authorities.

[Leader] You strayed away from the answer. Fine, it does not matter. You did not answer me. Please continue.

[Intervention] I specifically stated that the Judiciary Council must not have this authority because it is in fact exercising it. Others must be brought in to assist.

[Leader] Excuse me, in any event, what is the Judiciary Council to do when death sentences are brought before it?

[Intervention] If the killing was retribution, the Judiciary Council would not accept the petition in the first place because the party that is eligible to grant amnesty is the family of the victim. If the killing was criminal, the Judiciary Council has the authority to grant amnesty if this amnesty would better serve society.

[Leader] This means that the council reviews the case.

[Intervention] No, it does not review the case. The case is only presented to the Council after the Supreme Court issues a ruling on it. The council can only issue an order of amnesty or execution.

[Intervention] It is the higher judicial level that reviews the case from a technical legal perspective. The sentence becomes final when the Supreme Court endorses it. The Higher Judiciary Council is concerned with verifying it according to observed laws and its jurisdiction. As the speaker before me said, there are issues of punishment decreed by religious law. The Council’s endorsement is no more than a formality because sentences issued in cases of religious penalty cases cannot be ruled on by law. The Council has the authority to lighten the sentence from a death sentence to imprisonment in the cases of other penal sentences if the death sentence was handed down in a case other than one of religious punishment. This practice is currently observed.

[Leader] How? Does it review the case?

[Intervention] The Council does not review the case from a judicial perspective. It is not a court of law.

[Intervention] It means that the Judiciary Council has no role to play in reviewing the factual aspects of the case. The Council’s role is a strictly technical one. It just makes sure that due process was observed in the preliminary stage and before the Supreme Court. This is the role it was accorded by law; namely, to consider the technical aspects of a case and make sure that due process was observed, including appeals. It is only concerned with these issues and its role is very simple and limited.

[Leader] I understand.

[Intervention] Authority over these issues was given to the Council by virtue of a special order as Professor Husayn said. The preliminary or secondary stages were ultimately placed in the Council’s scope because it is the closest thing to knowing the sentences and estimating them. This is why the privileges were taken from the People’s Assembly and General Popular Committee and given to this esteemed council.

[Leader] It is a better guarantee than a governor who may or not believe the argument, because this governor that you speak of — who might be a head of any state in the world or anyone tasked with reviewing death sentences — may or may not endorse these sentences. He does not review the court proceedings to verify that due process was observed as the Judiciary Council does. This person ultimately does not know all the details and endorses these sentences according to his mood. For example, if it is the birthday of the king’s wife today, he would issue an amnesty, and if he is having a bad day tomorrow, he will endorse the death sentence. The Higher Judiciary Council, however, is a guarantee as the professor explained. It guarantees that due process was observed. As long as procedures were followed soundly, the Council has nothing to do with the sentence. This sentence was issued by a court and it is the business of the appeals process and Supreme Court.

[Intervention] This is not an amnesty.

[Intervention] An amnesty is a discretionary authority left to the discretion of the highest ruler in the country, who may issue amnesties as he pleases. That is an amnesty. But this is about a review of the case when the need arises.

[Leader] We are on the right path. I guarantee it. There is a Higher Judiciary Council that reviews all the stages of the trial process, starting with the criminal court and including the court of appeals and the Supreme Court in order to verify that the process was sound. The council has nothing to do with the case or whether the suspect receives an amnesty or not, because that is up to the courts. This is very reasonable.

[Intervention] It reviews the cases when necessary.

[Leader] In any event, I was upset by the death sentence handed down in this case. Ever since I saw that sentence, I no longer feel confident about death sentences. You saw, from what the professor explained, that there could be two persons who are drunk, and who may be friends, and one person assaults the other, who defends himself and kills his aggressor. For the man who defended himself to be sentenced to death is disconcerting.

[Intervention] I have not viewed this particular case, but I have experience with similar cases, there was no attempted assault and despite that the person was sentenced to death. My colleagues the counselors and I see that entering a state of alcoholic intoxication is voluntary. With regard to the perpetrators, no one forced them to drink alcohol but they did and are responsible for their actions regardless of their claims that they were drunk and committed the crime unintentionally. This means that people will go unpunished. That person intentionally drank alcohol and intentionally committed a crime. A second point is the motive for the crime, which has no legal considerations. Let us take stealing for example. If someone says: “I am going to steal regardless of the consequences because I am in need,” then he might think he is justified. He will be treated the same way a person who steals to get rich or buy something will be treated because the motive does not have any considerations on the crime. When an intoxicated person kills, he is handed the death sentence because he drank alcohol of his own free will and was not forced.

[Leader] It is as if by drinking, he already took the first step toward the murder.

There is another case that is worthy of mention. The victim let his sheep graze in the farm of the perpetrator (who was sentenced to death). The perpetrator struck the victim on the head with a club. The victim later died of his injuries. The motive behind this crime is a misunderstanding that broke out because the victim let his sheep graze in the perpetrators’ farm. Now, who is the wrongdoer? Is it the man who grazed his livestock in the perpetrator’s farm? I wanted a judge to explain it to us. It might be the same judge that presided over the trial, but it is not necessary for him to say that he is the one who issued the sentence; we just want his opinion. I said from the start that it is not important for him to say that he is the one who issued the sentence and simply give us his opinion.

[Intervention] If the court found that the killing was intentional even if he only intended to beat him with the club and that led to his death, then the crime would be viewed as premeditated murder. The matter is up to the court to decide.

[Leader] This person has been the victim of injustice and had no intention to kill the other person, who came and grazed his sheep in the accused person’s farm. The latter wanted to defend himself or his property or wanted to take revenge on the person who trespassed into his farm and thus hit him with a club. The beating led to death but it was not intended to kill. Are you — the speakers — judges?

[Intervention] We beg your pardon, brother leader; this is a legal issue or one of strict jurisprudence called “criminal intent”. Criminal intent, under the law can be present even for a moment, so that the assault resulting from this intent is an intentional desire to kill, making it a premeditated murder. This is confirmed by the investigations conducted by the prosecutor’s office and the court and by the evidence and witness testimony. The matter is one of facts, documents, and investigations. Therefore, it would be difficult to answer your question. We must first return to the documents and facts in order to verify whether or not there was criminal intent that led to the assault. The evidence can be indicative. The murder weapon and location could have a role in formulating criminal intent and deciding that the incident was one of intentional murder and not one of manslaughter. It is a complex and sensitive case that are difficult to prove except by the prosecutor general, the defense, or another such body.

[Leader] But if the case is the subject of doubt and involves this much complexity, then the sentence must always be in favor of the suspect.

[Intervention] If investigations prove that the perpetrator’s intent was criminal and resulted in the assault that led to death, then we have before us is a case of premeditated murder.

[Leader] What drew my attention in this case is that I saw someone letting his sheep graze in someone else’s farm. The owner of the farm grabbed a stick and beat the shepherd with it. The victim died at a later time and not at the time of the assault. It is very clear that the assailant had no ulterior motives to kill the victim and that the events were dictated by unexpected developments. This man brought his sheep into another man’s land without his knowledge. In addition, he did not use a pistol or rifle, which can be viewed as a clear intention to kill; rather, a stick is an available tool with very simple uses, and is not meant for murder.

[Intervention] It is a series of events that lead us to conclude that the suspect intended to kill the victim, which entails criminal intent. The judge will consider the crime from every aspect and the surrounding conditions that led to the death.

[Leader] His intention was not to kill. His intention was revenge or to punish this trespasser who was grazing his sheep in his farm. It is clear that he is an ordinary person and that the assault led to death but that the intention was not primarily to kill.

[Intervention] Death is not the same as intentional murder or the intention to kill. We might have a fight with someone but not intend to kill him, but might throw a punch that could be said to have killed him.

[Leader] The first and second cases that we have viewed would cause people not to defend themselves anymore. The first one was defending a transgression against his honor and you sentenced him to death, which means that no one can defend his honor. The second man was defending his property and you sentenced him to death, which means that no one can defend his property…etc. We would arrive at a situation where no one can defend themselves.

[Intervention] A premeditated intent must exist. Issues deserving religious punishment in particular — be they thefts or feuds — are referred to the Supreme Court even without an appeal. The Supreme Court must review all aspects of the case. Procedures must be followed to prove the existence of intent, and the argument must hold. The court’s formation must also be sound and the process followed flawless. We have statistics that the Supreme Court has viewed half the appeal cases and overturned them for reasons. Out of 413 cases of theft, 300 were overturned and returned to the court in question. Approximately half the capital punishment cases were returned to the court in question. Arriving at a sentence in accordance with the law, the details of the case you mentioned must be examined. The court trying the case must prove that the suspect intended to kill the victim before actually killing him.

[Leader] You are the president of the Supreme Court, what do you say?

[Intervention] It is a matter of legitimate defense, which has its conditions, the most important of which is that something must be wrong. This wrongful situation must be immediate. In order for the person not to be sentenced to death, there must be wrongdoing and it must be immediate. In this case, if the person had directly assaulted the animal, then it would have been a case of self defense, but when he assaulted the owner of the sheep, the self-defense claim does not apply because the immediate threat no longer existed. It is necessary for there to be a continued and immediate threat, or else he would not be acting in self defense but as an attacker. In my opinion, the sentence is sound because if he was in a position of legitimate self defense, then he should have attacked the source of the threat; namely, the sheep. Had he done that, he would not have been prosecuted, but once he attacked the shepherd, the conditions needed for self defense were removed. The most important condition is for the threat to be present.

[Leader] Are you, the speaker, and a student?

[Intervention] I am a third-year student at the school of law at Al-Fatih University.

[Leader] You are very interested in and serious about your studies. Here is another case that caught my attention. Here are the facts: The suspect smuggled some drugs by hiding them in small spaces in the vehicles they were riding in with the purpose of selling them. The drugs were caught in their possession, examined by a court body and found to be hashish weighing thousands of grams. Investigations found that the suspects had smuggled other shipments of drugs and managed to traffic them throughout the Jamahiriya. The criminal court sentenced the suspects to death after finding them guilty of the charges rendered against them. What do we gain from executing these people? Their crime had no motives; they were simply people selling hashish.

[Intervention] We have a narcotics law and in reaffirmation of the efforts exerted to combat the growing phenomenon of drugs, it was amended to endorse the death sentence in narcotics cases. This, of course, is a punitive measure and in this case, the Higher Judiciary Council can lessen the sentence. It has the authority to do so because the sentence is not a religious ruling and does not have the circumstances of such a ruling.

[Leader] Why do you say it is punitive?

[Intervention] Because it did not break any religious laws.

[Leader] You put narcotics in the realm of religious cases.

[Intervention] No. The narcotics law is an individual law and the death sentence was added to apply to a special circumstance; namely, trafficking.

[Leader] Religious punishment and punitive measures are in Islamic Law.

[Intervention] No, we call it a punitive measure because it is outside the realm of religious punishment and it is not a form of retribution, which means that the laws of retribution and blood money do not apply. The Higher Judiciary Council has authority in these cases.

[Leader] Focusing on the case before it reaches the Higher Council, why did the court issue a death sentence?

[Intervention] In terms of the narcotics law, law number 7 of 1990 set punitive measures of imprisonment and life imprisonment. It was later amended after narcotics became viewed as a weapon of mass destruction. Article 169 of the penal code considered narcotics crimes as crimes against the state. The punitive measures were set out in three paragraphs:

The first paragraph stipulates imprisonment for using narcotics. The second paragraph stipulates life imprisonment and the third stipulates capital punishment for drug trafficking. The suspects brought large quantities of drugs into the country. It is illogical that they were intending to use them all, so the court concluded that they had the intent to traffic drugs and applied paragraph 3 of article 169 in its sentence, which applies to foreigners who take bribes against the interests of the state and political crimes against the state, all of which have high sentences according to severity. Paragraph three stipulated that the sentence must be the death sentence.

If you allow me, I want to return to the first issue; namely, accidental manslaughter, crimes of deadly assault, and crimes of intentional murder. All of them have one material element in common: That the victim is harmed, whether he is accidentally struck by a car or beaten to death with a stick even though the intent to kill him was not present. But when a car accidentally strikes a person, it is the result of reckless negligence and a lack of regard for the law, all of which is wrong in the first place. Article 63 sets out the punitive measures for this accidental crime. If someone delivers one blow, it is not the same as delivering several blows or multiple stabs. The frequency and the tool used determine the intent to kill.

[Leader] A dispute arose between the convicted person and his cousins, who are the children of the victim, and a fist fight broke out. The victim intervened to stop the fight between his children and his nephew and was stabbed with a knife by the suspect, causing him to bleed to death. The motive was the victim’s intervention in a fight between the suspect and his cousins in an attempt to break it up. Why must he be sentenced to death? The killing was not intentional. This is a family whose members were fighting amongst themselves and using the means available to them. Let one of the judges tell us.

[Intervention] Of course. The most important element in a case of intentional murder is criminal intent. It is important to verify the intention of the perpetrator to kill the victim. How can we prove this intent? We can prove it by different indications mentioned by the Supreme Court and which we will clarify in the criminal investigation conducted by the prosecutor’s office. If the tool of murder was a knife, then it is not the same as a club and if the blow was to a lethal area, then it is not the same as a blow to a non-lethal area of the body. Based on such evidence and witness testimony, we can determine the existence of criminal intent or lack thereof. If criminal intent was found and the result was the death of the victim, then the crime in this case is one of intentional murder, or else it would be deadly assault. The intent to kill is what separates a crime of assault leading to death from a crime of intentional murder. If the intention is to kill, then the act becomes a crime of intentional murder, and if the intention is otherwise, the act becomes a crime of deadly assault. How do we prove it? We prove it through investigations conducted by the prosecutor’s office and through specific indicators; namely, the tool of murder, the place of the murder, and other such facts.

[Leader] Thank you.

[Intervention] Brother leader, welcome to Al-Fatih University. If you would allow me, we want to return to the concept of “guardian” because it is an important theoretical issue. You are the proponent of this theory and are better able to explain it. I conducted a study on the concept of a guardian in Libyan society. From the Quran — society’s constitution — and the Almighty’s saying “those charged with authority among you” where reference is made in the plural and not the singular, I concluded that guardianship is not in the hands of one person, regardless of whom he is, and will not be in the hands of a group either. Since authority will not be in the hands of one group, then the Higher Judiciary Council will not qualify for jurisdiction. Jurisdiction must be given through convening the General People’s Congress. Just as the Congress’s approval is needed to ratify important and critical conventions, we need it to ratify the death sentence and the application of justice. Thank you brother leader.

[Leader] In this case, the suspect killed his wife after premeditating it by striking her with one blow to the head with an axe while she was asleep and suffocating her with a towel. After she died, he struck her with the axe twice to make sure she was dead. His motive was that he suspected his wife of having an illicit affair with someone else. I want to point out that this man is blind. Why did you sentence him to death?

[Intervention] Sir, I am a university professor, not a judge. Criminal cases are not the same as civil cases. In civil cases, the judge is obliged to issue the sentence based on the evidence presented to him, which may be an official or unofficial document. In criminal cases, the judge’s background, culture, and the environment he lives in play a role in the way he evaluates the suspect’s motive for the crime in arriving at his verdict. The sentence might be harsh because the judge might give weight to the fact that the man suspected his wife, or it might be a light sentence if this suspicion is not taken into consideration. In criminal cases, regardless of how strong the evidence is, there is evidence that — in the eyes of the law — might help convict the suspect, such as evidence proving that the person was present at the scene of the crime and showing criminal intent. The judge’s mentality, his personal background, his scientific interests and everything about his personality may play a role as well.

Therefore, you may differ with the judges over many verdicts and judges may differ among themselves in a particular case because penal law gives the judge the ability and a wide scope to arrive at his verdict in every case brought before him. Personal belief and the conviction that the judge reaches has been taken into consideration by the laws governing the process of appealing the judge’s verdict. This conviction may not be reached by the court of second degree or in the Supreme Court, whose jurisdiction authorizes it to view legal issues. The judge may be criticized for his interpretation of a legal concept or even for the extent to which he holds the suspect responsible for the crime. The judge employs everything that is related to his cultural, and ideological and even political affiliations in arriving at his verdict. Even in criminal cases that threaten state security or society, you might find sentences that are somewhat flexible because the judge does not see that this man committed a serious crime while another judge may find that the man committed a serious crime against society and may issue a stricter sentence. Thank you.

[Intervention] I would like to clarify a point. Penal courts do have a special character. There is no crime and no punishment without a legal code. The judge, while free to uncover the truth, is limited by legal code in addition to criminal code. A crime is identified in a particular code and so is the punishment. In addition, even circumstances — especially those involving alcohol and murder — have been identified in the code. The law considers drinking alcohol a felony and murder a felony as well and stipulates that if two felonies are combined they receive a death sentence. Moreover, leader, courts are indeed just because they comprise three or five counselors, not to mention the fact that it is strictly impermissible for the defendant to be present without his lawyer. The verdicts are based on certainty and conviction and not on premise and hypothesis. In addition, death sentences must be reviewed by the Supreme Court even with the attendance of the suspects. Therefore, genuine justice is almost absolute. Everything is clear and due process is observed. Thank you.

[Leader] Is there a judge to tell us about the case I mentioned and why this blind man was sentenced to death without delving into the explanations that the professor and the judge have offered? You, the student, may have the floor.

[Intervention] I am not a student, I am from the prosecutor general’s office. Criminal intent is deduced from the way in which the crime was committed. When the retribution and blood money law was issued, the legislators were influenced by Islamic Sharia considerations. All judges would consider killing with a sharp or pointed object an intentional murder. Stabbing with a knife, striking with an axe, or beating with a stick repeatedly is a clear indication of intent. The judge concludes this from the investigations, which are recorded on paper. We cannot know if intent was present or not simply from listening to an abstract description of the incident. We must review the documents in order to make sure that the judge concluded that intent existed, especially if the murder tool was a knife, a weapon or a stick and if the blows were repeatedly delivered. These factors may have led the judge to pass a death sentence.

[Leader] Thank you for this important clarification. This means that there are elements that are beyond the facts that we have before us. For example, there is the use of a sharp or pointed object to take into consideration.

[Intervention] Scholars have said that striking someone with a sharp or pointed object usually leads to murder. If the tool of the murder was not sharp or pointed, the killer’s intention may be deduced from the number of blows and his behavior during the crime. The judge examines the documents and verifies the presence of intent to be away from the scene of the crime when it is committed; as is the case with the last example you mentioned which does not usually lead to a death sentence. The motive to carry out this task is thus considered an accomplice because it instigated his actions. As for the two, three, or four blows, psychologically speaking, we find that a person experiencing extreme emotional distress would stab someone a hundred times but not have the intent to kill. When a person is experiencing emotional distress he does not know where he struck or how many times he struck. If the matter is one of three or four stab wounds alone that led to death, it means that there was criminal intent present. Frankly, I am uneasy about this issue. I just heard the speakers before me defining intent as an element that could happen at the spur of the moment. This means that that all crimes are intentional because they all exhibit intent and we know that this is not the intended interpretation. He did not contemplate or plan the crime, nor did he arrange for it to happen. An incident could develop suddenly between two persons getting drunk together and having a fight. Saying that the intent to kill was present in such a situation is very unsettling.

[Leader] Yes, yes. This is what unsettled me.

[Intervention] Peace be upon you. It is important to say something on defining intentional murder. There is simple criminal intent and there is premeditated criminal intent. Intentional murder cases only need simple criminal intent that may arise at the spur of the moment. I might be here to attend this lecture but might have an argument with my neighbor and kill him. I would have the desire to kill and direct it at this person so that my desire is to kill this person. This is criminal intent in a case of intentional murder. I would be accused of the crime of intentional murder and my sentence would be to be put to death in accordance with the law of retribution and blood money. However, if I had premeditated the murder, the old law — before the retribution and blood money law — would have been more severe. In the past, the punishment for simple intentional murder was life imprisonment or simply imprisonment, but if the intentional murder was premeditated, the punishment would be more severe and would entail a death sentence. This is because in the case of a premeditated murder, I had time to think and balance things and consider committing this crime or not but ultimately deciding to commit the murder. It means that I had a chance to take the right decision but despite that made a grave mistake.

With regard to the last case, we find that in article 70 of the penal code, under the title “crimes of honor,” the legislators set conditions that, if met by the defendant, would entail a prison sentence and not a death sentence or one of life imprisonment. This is stated in the text of the law, which states: “Any man who is surprised to find his wife, sister, daughter, or mother in the act of adultery or illegitimate sexual intercourse and kills her immediately in defense of the attack upon his honor, his punishment shall be imprisonment.” Imprisonment in Libyan law spans from one day to three years in jail. The judge has the discretion to set the prison sentence in line with the discretionary authority granted to him.

As for this incident, it is true that a provocation did take place but the conditions for the applicability of this legal text and for the husband to benefit from it are not present because the conditions include an element of surprise. The element of surprise is not created by hearing of the act but of witnessing the act, which could constitute extreme provocation that the legislator kept in mind when commuting the sentence. In this case, this man had the intent to kill his wife and the elements of an intentional crime were present, which disqualify the defendant from taking advantage of this legal text. I do not know if these events took place before the retribution law or not. If they took place after the retribution law was passed then the death sentence is a definite thing unless one of the victim’s blood relatives withdraws his complaint. If the crime was committed before the retribution law was passed, then it is up to the judge’s discretion to set the length of the sentence, be it the maximum or minimum length.

[Leader] Thank you, but all these matters are unsettling. The suspect is self-employed as a driver. He was provoked by the victim, who cursed and insulted him and his family. The suspect purchased a gun and premeditated his crime. He approached the victim and shot him twice. He also attempted to intentionally kill — but not with premeditation — another person who was accompanying the victim but missed. The motive was that the suspect was provoked by the victim, who verbally attacked him and his family.

[Intervention] If we clarify this idea, we might reach a semi-final solution to the issue. There are different types of criminal intent. There is immediate or direct intent, which is not justified by provocation. Following up on what Dr. Rajab said, the criminal intent might arise at the spur of the moment because of anger. This is called immediate or direct intent in criminal law and it does not exempt the suspect from punishment. Anger must not be used as an excuse for murder; therefore, the murder is considered intentional with criminal intent presence, even if the excuse of provocation is made. This is called immediate or direct intent. This is why criminal law differs from the retribution law in that it stipulates a life sentence. But in this case, there is no difference between intent, premeditated intent, planning, or any such thing. The new law places immediate and direct intent on an equal footing with premeditated intent. The previous law differentiated between immediate or direct intent — which it punishes with life imprisonment and provocation is not a mitigating factor — and premeditated and planned intent, which it punishes with a death sentence and defines as killing with the premeditated intent to kill. Intent in this case and under the new law be it immediate and direct as a result of provocation or anger or otherwise would be punishable by death.

[Intervention] Peace be upon you. Regarding the moral element of crimes of intentional murder or the general nature of regulations involving criminal intent, a difference exists. Direct criminal intent is a situation where the perpetrator intends to commit a criminal act. It is possible — as the professor said — that when committing this crime, more than one person may be killed. You would have accepted this possible outcome of your criminal act and thus exhibited criminal behavior. These laws are general and apply to every crime, be it a crime of intentional murder or a fight. Criminal intent is always the moral factor required in intentional crimes regardless of their nature or their legal classification. Whether the crime is an intentional murder or a fight, the moral factor must be determined. The cases that you have presented include many possibilities that may require lengthy discussion. If we were to view the fight, which was not sufficiently discussed, and see that a group of people were present and one person intervened to break up the fight. This, according to the description you gave, would make it a crime of fighting.

A person intervened to break up the fight and it led to the death of several persons. There is a legal text that governs fighting and any resulting death if the perpetrator did not intend to kill the person at the time of the crime.

There are many hypotheses governed by many issues. As for the moral aspect, it is very sensitive and is up to the judge’s evaluation of the situation and the facts. The matter may raise many questions but there are agreed general regulations, especially when we say the crime was premeditated. The retribution and blood money law stipulates that the perpetrator’s family must pay damages to the victim in return for withdrawing the case. The issue of intent to kill was not raised because the crime was not intentional under this law. But this crime might be under the scope of another law and qualify as a crime of deadly assault or accidental murder and so on. Thank you.

[Intervention] In the name of God, I am a student at the Graduate Studies School in Janzour. In order to solve this problem, I believe the draft penal code must be presented to the popular congresses. The first article of the penal code, which stipulates that “there is no crime and no punishment except as stipulated by a legal code”, must be amended. I do not blame a judge for applying Libyan law if he works in the judicial system. If the judge’s sentence is illegal, he would be appealed and his verdict would be deemed illegal, which means that no crime and no punishment can be set except as stipulated by the law. In the event the judge sentences the convict to a punishment that is outside the observed legal text, he is immediately in the red zone. I believe that it is necessary to amend article 1 of the penal code so that the legal texts would accommodate precedents.

[Leader] So, the rule “there is no crime and no punishment except as stipulated by a legal code” should be cancelled.

[Intervention] This would give the judge more freedom because the judge is now constrained to applying the punishment that is set by the code.

[Leader] If we were to cancel this rule, how would the judge issue his sentence?

[Intervention] When we ask why a death sentence was passed down, it is because the judge had no choice in the matter. This is the punishment stipulated by law. We cannot blame him.

[Leader] How can we issue sentences without a legal text?

[Intervention] We leave it up to the judge because he is now obliged to implement the text of a superseded article that needs to be amended.

[Leader] You are a good analyzer.

[Intervention] The text that the brother is talking about states: There is no crime and no punishment without a legal text. If this text is cancelled, it means that there is no crime and therefore there indeed is no punishment.

[Leader] No, no, this is not so. He is intelligent and did not mean it in this light.

[Intervention] A problem arose after the retribution law was passed. These problems and questions all arose after this law was passed, while matters were normal before it as the chief prosecutor of Tripoli said. We believe it is necessary to standardize legislation and I believe the draft penal code before you has taken these problems into consideration and tried to avoid them as much as possible.

[Leader] A fight broke out between the families of the perpetrator and the victim and after the victim attacked the perpetrator with a knife, the latter took the knife from him and stabbed him twice, once in the stomach and once in the chest. The motives of this crime show no intent to kill. Why was he sentenced to death?

[Intervention] In the name of God. Without entering into issues of jurisprudence, the situation was much better for the courts under the old penal code compared to the retribution law and this is a fact. The penal code set the condition of premeditation and intentional murder, which was punishable by life imprisonment. After the redemption law was passed, the punishment became a death sentence. Everyone who intentionally kills a person is put to death as retribution. The currently observed retribution law has several flaws. We have discussed this and it requires amendment. Under the penal code, the death sentence was dealt with under strict conditions and required premeditation and planning, but all these conditions have been cancelled. Any murder is immediately punishable by death. Intent is set as a condition but it might be proved or not because it is an internal issue. The retribution law needs amendment.

[Leader] Why was this person sentenced to death? Go ahead doctor.

[Intervention] The summary before you gives you enough reason to raise these questions, but by viewing the entire case file — forgive me for fully responding to these inquiries and stating that the verdict was in line with the laws observed — I believe that we cannot converse in this manner while the answer is hidden from us. It appears to me that the questions are answered in full in the file. All the conditions of the motive exist and the court applied the law. But you have the right to raise these questions.

[Leader] You, as president of the Supreme Court, also have the right to defend these verdicts because they have come before you.

[Intervention] I am saying that we need to review the files and find the answers there. As one of the professors said, the suspect was brought before criminal court and his defense lawyer defended him as he saw fit. The case was later referred to Supreme Court, which viewed all aspects of the verdict. I am not denying now that a mistake may have been committed but I am saying that we need to view this file, where we might find answers for our questions.

[Intervention] I do not think this is what the leader meant. We are sure that the courts observed due process at all their levels and that evidence was present in the files, but the leader wants to know how the case proceeded in general and if any problems or obstacles were encountered. He is alerting us to the possibility of change in the future. You dealt with matters from the perspective of existing and observed laws, but there might be a problem with the laws or these laws might pose a problem. The leader simply wants to know where the problem is.

[Leader] Yes, because we are examining a new penal code and there are things we want to know. Where is the imbalance and what is is it?