SAUDI ARABIA: REPRESSIVE DRAFT PENAL CODE SHATTERS ILLUSIONS OF PROGRESS AND REFORM

The report, Manifesto for repression, analyses the leaked draft code revealing how instead of improving the country’s abysmal human rights record as part of the Crown Prince’s reformist agenda, it contravenes international law and codifies existing repressive practices into written law

A leaked draft of Saudi Arabia’s first written penal code falls woefully short of universal human rights standards and exposes the hypocrisy behind Crown Prince Mohammad bin Salman’s promises to position his government as progressive and inclusive, said Amnesty International in a new report launched today. Saudi Arabia’s authorities have not shared the draft penal code for consultation with independent civil society, but a number of Saudi Arabian legal experts have confirmed the authenticity of the leaked draft.

The report, Manifesto for repression, analyses the leaked draft code revealing how instead of improving the country’s abysmal human rights record as part of the Crown Prince’s reformist agenda, it contravenes international law and codifies existing repressive practices into written law. The draft code criminalizes the rights to freedom of expression, thought and religion and fails to protect the right to freedom of peaceful assembly. It criminalizes “illegitimate” consensual sexual relations, homosexuality and abortion and fails to protect women and girls from gender-based violence. The draft also codifies use of the death penalty as one of the primary punishments and continues to permit corporal punishments such as flogging. The report also highlights recent cases of repression of dissidents, illustrating the dangers of adopting the draft as is.

“The absence of a written penal code has long bred systemic violations and injustice in Saudi Arabia. A first written penal code could be a crucial opportunity for Saudi Arabia’s authorities to transform their abusive criminal justice system into one that respects human rights. However, our analysis of the leaked draft code reveals it is essentially a manifesto for repression that would entrench human rights violations and suppress freedoms,” said Agnès Callamard, Amnesty International’s Secretary General.

“As it stands, the draft code shatters the illusion that the Crown Prince is pursuing a truly reformist agenda. Saudi Arabia is at a critical juncture: with a draft penal code currently under legislative review, the authorities still have a chance to demonstrate to the world that their pledges of reform are more than empty promises. They must urgently consult with independent civil society experts and amend the draft code to ensure it is aligned with international standards and reevaluate existing laws to uphold human rights.”

Alongside its report, Amnesty International is also launching a global campaign today to demand the release of individuals unjustly imprisoned or sentenced to death for exercising their rights to freedom of expression as part of the authorities’ repressive crackdown.

PETITION

“Amnesty International’s global campaign seeks to build international pressure for human rights reforms by unmasking the grim truth behind Saudi Arabia’s attempts to launder its international image. The campaign will highlight shocking cases of those unjustly imprisoned or facing the death penalty simply for peacefully expressing their views. We will expose the chilling consequences of the country’s repressive crackdown and raise pressure on key allies of Saudi Arabia to push for genuine reform,” said Agnès Callamard.

The draft penal code – first leaked online in July 2022 – has been drafted with secrecy and is being reviewed without allowing for dialogue with independent civil society and experts. Saudi Arabia’s authorities have not shared the draft penal code with independent civil society experts and nor have they published the draft. However, a number of Saudi legal experts, including a member of the bar association and two Saudi law firms publicly shared and commented on the 2022 draft, confirming its authenticity.  

As it stands, the draft code shatters the illusion that the Crown Prince is pursuing a truly reformist agenda.

Agnès Callamard, Amnesty International

The organization wrote to Saudi Arabia’s Council of Ministers and the Saudi Arabian Human Rights Commission to share Amnesty International’s analysis along with questions about the draft penal code. On 4 February, the Saudi Human Rights Commission responded denying the draft’s authenticity and stating that a draft code is currently undergoing legislative review. Amnesty International invites the Saudi authorities to publish the latest version of the draft for independent civil society feedback.

Amnesty International’s report analyses the 116-page leaked draft penal code, scrutinizing its alignment with international human rights law and its potential to perpetuate existing human rights abuses. The report draws on a decade of human rights documentation of the Saudi authorities’ crackdown on the rights to freedom of expression, association and peaceful assembly, use of torture and other ill-treatment and the death penalty, as well as interviews with experts familiar with Saudi Arabia’s legislative landscape.

Amnesty International notes that the draft penal code only covers discretionary crimes (ta’zir crimes), for which punishments are not specified in sharia law, and does not codify crimes that have fixed punishments under sharia (known as hadd or qisas crimes), continuing to grant judges wide discretion in determining whether the evidentiary threshold is met.

Freedoms criminalized

Over the past decade, Saudi Arabian authorities have severely restricted freedom of expression, targeting a large number of dissenting voices—from human rights defenders to journalists and including clerics and women’s rights activists—through incarceration, exile, or conditional releases which include travel bans. The authorities have used counterterrorism and anti-cybercrime provisions to silence critical expression and independent thought. In one harrowing case, Salma al-Shehab, a PhD student and mother of two, is now serving 27 years in prison for supporting women’s rights on X (formerly Twitter).

In an ongoing case, Manahel al-Otaibi, a fitness instructor, blogger and human rights defender who has been forcibly disappeared since November 2023 awaits trial before the Specialized Criminal Court, Saudi Arabia’s notorious counter-terror court, for posting photos of herself without the abaya (a traditional robe) and for content protesting Saudi Arabia’s repressive male guardianship laws.   

The draft penal code would reinforce these repressive measures by criminalizing defamation, insults and questioning the judiciary under vague terms, risking further infringement on individual freedoms and perpetuating the crackdown on dissent.

Our analysis of the leaked draft code reveals it is essentially a manifesto for repression that would entrench human rights violations and suppress freedoms.

Agnès Callamard, Amnesty International

The draft penal code also criminalizes “illegitimate” consensual sexual relations, consensual sexual relations between two men, committing “indecent behaviour” and “imitat[ing] another sex through his dress and appearance”. Such provisions would allow for the persecution and harassment of members of the LGBTI community. While Amnesty International has documented cases of individuals being convicted for these acts, these prosecutions and the sentences were at the discretion of the judge and are not codified as criminal acts in existing Saudi legislation. The sentences associated with these acts in the draft penal code are more severe than the sentences currently meted out by judges today.

In the absence of a penal code in Saudi Arabia, judges currently use their interpretation of Islamic law (sharia) and jurisprudence to determine what constitutes a crime and to impose punishments. Such practices allow judges wide discretion in adjudicating cases and leave crimes and punishments vaguely defined, in violation of international human rights law.

Draft code perpetuates gender-based violence

For years, women and girls in Saudi Arabia have faced rampant discrimination, in law and practice, with inadequate domestic legislation to shield them from gender-based violence. Alarmingly, the draft code does not allow for the criminal prosecution of individuals who commit acts in the name of “honor”, which could include assault or murder.  This new provision would effectively grant abusers immunity in flagrant violation of international law.

The draft law also provides an overly broad and vague definition of harassment and fails to recognize marital rape as a crime.

Codifying use of the death penalty

Despite Crown Prince Mohammad bin Salman’s promises to limit capital punishment to the most severe crimes as dictated by sharia there has been a horrifying surge in executions under his rule, including one of the largest mass executions in recent decades of 81 people in March 2022.

Saudi Arabia’s draft Penal Code codifies the death penalty as a primary punishment for a spectrum of crimes, ranging from murder to rape to non-violent offenses like apostasy and blasphemy, in violation of international law. The draft code allows child offenders to be executed for certain crimes and sets the age of criminal responsibility at a shockingly low seven years. The Committee on the Rights of the Child, which Saudi Arabia is a state party to, recommends that the minimum age of criminal responsibility be no lower than 12 years.

The draft code also continues to allow regressive corporal punishments, which could include flogging and amputation of hands, for crimes such as adultery and theft. Corporal punishments are a form of torture and other ill-treatment and are prohibited under international law.

“It is vital that the UN Human Rights Council establishes a mechanism to monitor Saudi Arabia’s human rights situation so that the Saudi authorities cannot continue to cover up the dire reality of their repression by buying the world’s silence and peddling an image of progress and glamour to the world with their expensive PR machine,” said Agnès Callamard.