THE ORIGINS OF THE "WITCHCRAFT" CHARGE

The Legal Basis for the Charge

Saudi Arabia has no written penal code, code of criminal procedure, or code of judicial procedure, allowing police and judges wide discretion in many cases to determine what activities constitute criminal offenses and what sentences such "crimes" deserve.12 Because there is no constitutional court there is no way for an individual to challenge a sentence without directly or indirectly appealing to the king.13 The king and his appointed Council of Ministers have near absolute authority to interpret written law, while the government-appointed Council of Senior Religious Scholars has final authority over interpretations of the Shari`a. The Council's interpretations give precedence to the Hanbali school of jurisprudence, especially as explicated by the fourteenth century jurist Ibn Taymiya.14 The Hanbali school is considered to be the most conservative of Sunni Islam's four schools of jurisprudence.

All four schools of jurisprudence agree on three main categories of crimes. Boundary crimes (hudud) are those whose punishments and evidentiary and procedural requirements are clearly delimited in the Quran and the collected deeds and sayings of the Prophet Mohammed (al-sunna). Equity crimes (qisas) are those crimes causingphysical injury or death to another person, and their punishments are also specified in the Quran and the Sunna. Discretionary or reform crimes (ta`zir), include crimes whose punishments are not specified in the Quran or Sunna, or which do not meet the evidentiary and procedural requirements of the first two categories.15

Punishments for boundary crimes include execution by beheading or stoning, crucifixion, amputation (of a hand, or a hand and a foot, depending on the crime), banishment, or flogging, and persons convicted of boundary crimes cannot be pardoned. Equity crime punishments are intended to punish the criminal by means equivalent to the harm inflicted on the victim, and thus the judge is allowed discretion in designing a punishment suitable to the specifics of the particular case. In an equity crime the victim or his or her family can choose to accept monetary compensation in lieu of other punishments. Reform crimes allow the greatest judicial discretion in sentencing, including allowing for pardons in cases where the criminal repents of the crime. The only limit on reform punishments is the condition that these sentences be less than those for boundary crimes. Different schools of jurisprudence differ on whether this means that reform punishments must be less than the harshest boundary punishment, less than the least harsh boundary punishment, or less than a parallel boundary punishment.16

Based on this division, the charges against al-Naqshabandi -- "the practice of works of magic and spells and possession of a collection of polytheistic and superstitious books"17 -- would appear to fall into the category of reform crimes described above, where the Quran and the Sunna do not specify a punishment for witchcraft. Indeed, a statement by the Ministry of Interior makes clear that in this case "it was decided he be sentenced to the discretionary punishment of death (qatlihi ta`ziran).18

This criminalization of witchcraft would be highly problematic even without reference to international human rights law. Contradictory definitions and prescribed punishments for witchcraft appear in different classical Islamic texts, and modern Saudi law does not appear to prohibit any specific activities on the grounds that they constitute witchcraft, let alone to mandate the death penalty. Ironically, Hanbali jurist Ibn Taymiya's rulings (fatawa) explicitly permit the use of certain kinds of amulets (hujub or ruqan), and the use of amulets is not unusual in Saudi Arabia or in other parts of the Middle East. Several lawyers and experts in Islamic law contacted by Human Rights Watch expressed great surprise that someone would be executed for witchcraft under Islamic law, raising the question of whether the average Saudi resident is aware that the activities that al-Naqshabandi is accused of might constitute a punishable offense.19 The Saudi minister of justice did not respond to Human Rights Watch's request for clarificationof the terms "witchcraft" and "polytheistic and superstitious books," nor to questions regarding what would constitute sufficient evidence for conviction, or the prescribed punishment for someone convicted of such a charge.

When considered in the light of international human rights law, the invocation of witchcraft in al-Naqshabandi's case highlights the way in which Saudi Arabia's lack of a written penal code both encourages and disguises serious human rights abuses. At a minimum, this criminalization of possession of religious amulets and books is a clear violation of international human rights law's guarantees of freedom of expression and belief.20 Furthermore, if there is no existing law that mandates the death penalty for the activities al-Naqshabandi allegedly engaged in, this case also violates the most basic of due process rights, in that he was punished for an offence that was not a crime at the time it was committed.

The Background to the Charge

There has been speculation that the motive for al-Naqshabandi's prosecution and execution may have been religious persecution for Sufi religious practices. Al-Naqshabandi's family denies that he was a Sufi or that Sufism was an issue in his arrest.21 In his letters to Judge Sulayman al-Samhan of the Greater Court of Riyadh, Al-Naqshabandi makes no reference to Sufi belief or practice, but rather traces the source of the witchcraft charge to an incident in 1987. At that time he had been working for Prince Salman bin Sa`ud bin `Abd al-`Aziz for six years, having started in 1981 as a secretary in the prince's international storage company and three years later as the company's administrative director (mudir idari). Al-Naqshabandi describes the prince as a particularly demanding employer, with a history of abusing his employees, and recounts the prince threatening him with death if a group of debtors defaulted on a loan made by the prince.22 In a "moment of weakness and fear," al-Naqshabandi writes, he followed the advice of a friend and approached a Sudanese shaykh known for writing amulets.23 The shaykh provided him with an amulet "with nothing in it but Quranic verses, and he wrote it in front of me. He said in it: `O God, protect `Abd al-Karim Mara`i. God is the best guardian and He is the most merciful of the merciful.'" Fearing the prince would make good his death threats, al-Naqshabandi also sold his wife's gold jewelry and borrowed from friends so that he was able to pay an installment of 60,000 Saudi Riyal (approximately US $15,950) for one of the debtors. Although Prince Salman acknowledged al-Naqshabandi's payment of the other man's debt, and promised to repay al-Naqshabandi, al-Naqshabandi alleges that the prince never repaid this debt, although he did eventually stop threatening al-Naqshabandi after al-Naqshabandi's son was killed in an auto accident in 1990.24 When the loan crisis was over al-Naqshabandi "threw [the amulet] in the desk drawer" and forgot about it.25 Although an aide to Prince Salman knew al-Naqshabandi had gone to the Sudanese shaykh, no one raised the issue at that time.

In early February 1994, the prince had a dispute with another employee, F.S., a Saudi national who was the office director. In the course of his work, F.S. would sign letters on behalf of Prince Salman, and al-Naqshabandi's testimony recounts how after the dispute the prince decided to use these letters as evidence to have F.S. imprisoned on forgery charges, as al-Naqshabandi says he had done to other employees in the past.26 Prince Salman pressured al-Naqshabandi to give false testimony against F.S., and when al-Naqshabandi attempted to resist the prince became threatening:

And when I refused the prince became intensely angry at me, and threatened to put me in prison for the rest of my life. When I persisted in refusing to give false testimony he put me in front of four witnesses to withdraw all my [contractual] claims against him, which consist of [severance pay and other benefits for] fourteen years and three months service.27

Finally succumbing to the pressure, al-Naqshabandi agreed on February 10, 1994 (28 Sha`ban 1414), to accompany Prince Salman to the police criminal division "on the basis that I would only give the testimony."28 Instead al-Naqshabandi was charged with forgery and held in solitary confinement for four days, until February 13 (2 Ramadan). It was during this four-day period, al-Naqshabandi charges, that the prince and two other employees collected and created incriminating material to place in al-Naqshabandi's office and arranged for his arrest.