Saudi Arabia: leaked penal code is 'manifesto for repression' - new report

Detailed analysis shows code criminalises freedom of expression, homosexuality and abortion, and provides no protection for those targeted in crimes of ‘honour’

Draft code allows child offenders to be executed for certain crimes and sets age of criminal responsibility at a shockingly low seven years 

‘The draft code shatters the illusion that the Crown Prince is pursuing a truly reformist agenda’ - Agnès Callamard 

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 much-vaunted claims to be introducing “reforms”, said Amnesty International in a new report today.

Amnesty’s 66-page report - “Manifesto for Repression”, which provides a detailed analysis of the leaked draft code - shows that instead of improving the country’s abysmal human rights record as part a supposed reform agenda, the code contravenes international law and codifies existing repressive practices into written law.

Specifically, the draft code criminalises the rights to freedom of expression, thought and religion, and fails to protect freedom of peaceful assembly. It also criminalises “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 Saudi Arabia’s primary punishments, and permits corporal punishments such as flogging.

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 leaves crimes and punishments vaguely defined, in violation of international human rights law.

The draft penal code - first leaked online in July 2022 - has been drafted in secret and is being reviewed without dialogue with independent civil society and experts.

Over the past decade, the Saudi authorities have severely restricted freedom of expression, targeting a large number of people - including human rights defenders, journalists, clerics and women’s rights activists – with incarceration, exile and travel bans. The authorities have also used counterterrorism and anti-cybercrime provisions to crack down on dissidents, including in the case of Salma al-Shehab, a Leeds PhD student and mother of two who is serving 27 years in prison for supporting women’s rights on Twitter.

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

Amnesty has written to Saudi Arabia's Council of Ministers and the Saudi Arabian Human Rights Commission to share its analysis along with questions about the draft penal code. On 4 February, the commission responded denying the draft’s authenticity, saying a draft code was currently undergoing legislative review. However, separately, a number of Saudi legal experts have confirmed the authenticity of the draft code. Amnesty has asked the Saudi authorities to publish the latest version of the draft for independent civil society feedback.

Agnès Callamard, Amnesty International’s Secretary General, said:

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

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

“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 can’t 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.” 

LGBTQ+ and women’s rights

The draft penal code criminalises “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 LGBTQ+ community. While Amnesty has previously documented cases of people in Saudi Arabia being convicted for these acts, these prosecutions and sentences were at the discretion of the judge and were not codified as criminal acts in existing Saudi legislation. The sentences associated with these acts in the draft penal code are also more severe than the sentences currently meted out by judges.

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 “honour”, which could include assault or even 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 recognise marital rape as a crime.

Death penalty and corporal punishment

Despite the Crown Prince’s promises to limit the country’s use of the death penalty 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 - 81 people in March 2022. In violation of international law, Saudi Arabia's draft penal code codifies the death penalty as a primary punishment for a range of crimes - from murder to rape to non-violent offences like “apostasy” and blasphemy. 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 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.