Death Penalty Worldwide

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08/09/2017

Benin Abolished Death Penalty in 2016, But 14 Prisoners Remain on Death Row

In January 2016, the Constitutional Court of Benin effectively abolished the death penalty in a ruling that stated that “no one can now be sentenced to capital punishment.”  Prior to this ruling, in 2013, the National Assembly repealed death penalty provisions in the Criminal Procedure Code.  Currently, a bill is pending in the National Assembly that seeks to completely remove death penalty provisions in the Criminal Code. 

The Constitutional Court’s ruling is the latest development in a series of events leading to abolition of the death penalty in this West African country.  The last known execution in Benin was carried out in 1987 and the last death sentence was handed down in 2010.  In 2012, the country signed on to the Second Optional Protocol to the International Covenant on Civil and Political Rights, committing to immediately cease applying capital punishment and to fully abolish the death penalty in law in the near future.

Despite these reforms, 14 prisoners remain under sentence of death. And while Benin has committed not to execute these prisoners, their sentences have not been commuted.  The prisoners include 10 Beninese, two Nigerians, one Togolese and one Ivorian. In 2016, Amnesty International visited the prison where these prisoners are still being held and described substandard conditions.  The prisoners researchers talked to have lived for decades under the constant fear of death. At least three prisoners have died from serious illnesses such as malaria and tuberculosis while on death row. 

According to Article 7 of the International Covenant on Civil and Political Rights (ICCPR), “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”  In the last 20 years, jurisprudence has developed in support of the idea that continued incarceration on death row (also known as "death row phenomenon") constitutes cruel, inhuman, or degrading punishment.  In Pratt v. Morgan, the Judicial Committee of the Privy Council determined that a five--year wait between conviction and execution presumptively cruel and inhuman punishment.  Courts in Canada and Uganda have reached similar conclusions.  In the United States, the issue has not yet reached the Supreme Court; however, two justices have voiced their support for recognizing the phenomenon as a violation of fundamental rights. 

Amnesty has urged authorities in Benin to commute the death sentences of the 14 prisoners remaining on death row in order to comply with the country’s international obligations. Noting that 104 countries worldwide have abolished the death penalty, Amnesty has urged Benin, as a member of this global majority, to completely eliminate any remnants of the old death penalty system and to commute the sentences of these men who have suffered for decades under the old regime. 

--- Jenna Kyle

06/28/2017

Malawian Prisoner Released After Twelve Years on Death Row

Malawian prisoner Ishmail Gome has been released from death row, nearly 12 years after he was convicted and sentenced to death for a crime he did not commit.

Cornell law students working with my International Human Rights Clinic were instrumental in securing his release. Maame Esi Austin (JD ’17) worked with the Malawi Human Rights Commission and Malawian lawyer Chimwemwe Chithope-Mwale to draft the legal arguments seeking his immediate release. Charlotte Hopkinson (JD ’18) and Thalia Gerzso (LLM ’17) drafted an amicus curiae brief on behalf of myself, Professor William Schabas, and Professor Christof Heyns that outlined the risk factors for wrongful convictions present in Mr. Gome’s case. The clinic team also obtained a declaration from neuropsychiatrist Dr. George Woods, who attested to the psychological torment Mr. Gome had endured on death row.

Ishmail Gome had been accused of killing a rival for the chieftainship of his village. All of the physical evidence, however, pointed to his co-defendant, Pitilizani Chabuka. Mr. Chabuka testified against Mr. Gome at trial in exchange for the prosecution’s agreement to reduce the charges against him. Ten years later, he came forward and admitted that he had fabricated the charges against Mr. Gome.

Mr Gome is the only son and the last of nine children in his family. He was unable to attend school because of his family’s poverty. Nevertheless, he grew to become the breadwinner of his family, working long hours to provide for his parents and eight older sisters by farming and selling maize, soya beans, tobacco and nuts. Mr Gome eventually got married and had five children of his own.

On the morning of January 12, 2004, Foliasi Chibwazi was found dead. The police discovered a single set of footprints, beginning at the scene of the crime and leading to the home of Pitilizani Chabuka, Mr Gome’s nephew. After Mr Chabuka was arrested, he implicated his uncle Ishmail Gome as an accomplice in the murder.

Mr Gome was later brought to the police station, where he was detained for 10 days. He was beaten, deprived of food, and coerced into confessing guilt.

There was no evidence linking Mr Gome to the murder other than the testimony of Mr Chabuka and his coerced confession. All the physical evidence pointed to Mr Chabuka as the sole perpetrator of the crime.

On 13 October 2015, Pitilizani Chabuka finally admitted that he alone carried out the crime at the request of his grandfather, who did not wish to see the deceased take over the chieftaincy. He was adamant that Ishmail Gome “did not play any role in the offence and is innocent.” He came forward after realizing that his false testimony contravened his religious beliefs, and stated that he felt terrible about falsely implicating Mr Gome in the offence, “because God knows I have sinned.”

For the last 10 years, my clinic has been assisting Malawian prisoners facing the death penalty. In 2007, the Malawi High Court struck down the mandatory death penalty under the Malawian Constitution. Since then, the clinic has assisted in the representation of approximately 170 prisoners, all of whom were once sentenced to death under the unconstitutional mandatory sentencing regime.

The High Courts have now held 152 resentencing hearings at which Malawian defense attorneys presented mitigating evidence obtained by Malawian paralegals trained by the clinic. Volunteers funded by the NGO Reprieve and Cornell’s Center on the Death Penalty Worldwide have played a crucial role in this project by interviewing prisoners and their families, drafting legal documents, and serving as a liaison with local stakeholders.

As a result of this work, 121 former death row prisoners have been released, and another 28 have received a determinate sentence. None have been resentenced to death, and only one has received a life sentence. The results are a testament to the power of mitigating evidence, and to the joint efforts of Malawian lawyers, judges and NGOs working in tandem with their international partners.

-- Sandra Babcock

02/06/2017

The Death Penalty in 2016: trends confirm global movement toward restricted use of the death penalty

The number of abolitionist countries continued to grow in 2016, but national crises have created a political climate that heightens the risk that the death penalty will be reintroduced in a handful of abolitionist nations.

In 2016 the Center documented executions in 21 of the world’s 195 states and territories. It is possible that other retentionist states—notably Syria, Yemen, Vietnam, and South Sudan—carried out secret executions not reported in the media or other sources, but the fact remains that a minority of the world’s states retain the death penalty, and a smaller minority still carry out judicial executions.

The Center’s data also shows that most executions are carried out in two regions: the Middle East and Asia. In the Middle East, our research indicates that Iraq carried out 101 executions and Iran carried out 545 executions in 2016. In both countries the actual number of executions is likely to be higher, given the governments’ underreporting of executions. According to a tally based on official announcements, Saudi Arabia carried out 153 executions in 2016, maintaining the high number of executions begun after King Salman took power in January 2015.

In Asia, sources estimate that China carried out thousands of executions in 2016 (although the number of executions remains a state secret). After China, the highest numbers of executions in Asia were carried out in Pakistan, which executed 87 people in 2016. This is a dramatic reduction in the number of executions from 2015, when Pakistan executed approximately 320 people. The drop in executions may be attributable to public concern about the application of the death penalty. For example, there was public outcry in October 2016 when the Pakistan Supreme Court found that two men executed in 2015 were innocent, and in late 2016 public pressure led to a stay in the execution of Imdad Ali, a mentally ill man.

As the only country to apply the death penalty in Europe, Belarus carried out 3 executions in 2016, with 1 person remaining on death row in Belarus and at risk of execution.While Belarus is described as “the death penalty’s final frontier in Europe,” the Turkish president Recep Tayyip Erdogan has signaled a desire to reinstate the death penalty—abolished in Turkey in 2004—in response to the failed coup in July 2016.

The United States was the only state to carry out executions in the Americas last year, as has been the case for the past 8 years in a row. In the United States, executions have fallen to a 25-year low, with 20 executions carried out in 2016 (compared to 98 in 1999, the highest number in the past 25 years). Nevertheless, the number of people on death row in the United States has only slightly declined in the last twenty years, from 3,219 in 1996 to 2,905 in 2016.

A majority of African countries with death penalty laws are considered abolitionist de facto, having not carried out an execution in over 10 years. A small number of countries in Africa carried out executions in 2016. Botswana and Egypt each executed 1 person, South Sudan carried out a reported 2 executions, and Nigeria carried out 3 executions. Somalia carried out 4 executions (with Somaliland executing 8 people and Puntland 1 person). Secrecy surrounding executions, especially in Egypt, Somalia, and Sudan, means that estimates of executions may be unreliable. Burundi, which abolished the death penalty in 2009, is another country in danger of reintroducing the death penalty. In February 2016, Minister Emmanuel Ntahomvukiye stated in parliament that the death penalty should be reinstated to punish those involved in the failed 2015 coup. Other countries in Africa continue to restrict their use of capital punishment: in October 2016 Kenyan president Uhuru Kenyatta commuted the sentences of 2,655 men and 92 women to life imprisonment.  Nevertheless, Kenyan courts continue to impose death sentences.

In 2016, two countries—Benin and Nauru—confirmed that they had abolished the death penalty for all offences. The Constitutional Court of Benin ruled in January 2016 that Benin’s 2012 ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights (aiming at the abolition of the death penalty) rendered all legal provisions stipulating the imposition of the death penalty inoperative, effectively confirming the 2012 abolition of the death penalty.

In June 2016, Nauru, which had not carried out an execution since its independence in 1968, implemented a new criminal code that removed any mention of the death penalty left over from the previous 1899 criminal code. It appears, however, that Nauru’s Constitution retains an article allowing for the imposition of the death penalty if new legislation prescribing the death penalty for an offence is enacted. In 2016, Guinea abolished the death penalty for ordinary offences, but retains the death penalty for crimes under military law or in exceptional circumstances.

Every two years the world gains insight into the political status of the death penalty worldwide, when the UN General Assembly votes on a resolution calling for the progressive restriction and eventual abolition of the death penalty. Confirming the global trend toward abolition of the death penalty, the 2016 resolution on a global moratorium on the use of the death penalty resolution passed with 117 votes in favor, 40 against and 31 abstentions. Notably, Guinea, Malawi, Namibia, Swaziland, Solomon Islands, and Sri Lanka moved from abstention to voting in favor and Zimbabwe from voting against to abstention.

Since 2007, when the resolution was introduced, the number of states favoring the moratorium has increased from 104 in 2008 to 117 in 2014 and 2016, but last year’s vote was marked by a record-breaking number of states withdrawing their support for the moratorium. Two countries—Burundi and South Sudan—moved from voting in favor of the resolution to voting against. Equatorial Guinea, Niger, Philippines, and Seychelles moved from vote in favor to abstention, in the case of the Philippines reflecting the newly-elected president’s campaign promise to reinstate the death penalty.

The resolution included an important addition aimed at improving transparency in the application of the death penalty: a request that retentionist countries provide information on scheduled executions. Opponents of the moratorium, who contend that international law allows for the imposition of the death penalty for “the most serious crimes," successfully inserted a new paragraph to the resolution on state sovereignty. This paragraph reaffirms “the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations.” A similar amendment was proposed and rejected in 2014.

Nevertheless, the resolution does not shy away from framing the death penalty as a human rights issue and continues to call upon states to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at the universal abolition of the death penalty. 

-- Sharon Pia Hickey

11/02/2016

Cornell Law School Launches the Cornell Center on the Death Penalty Worldwide

The Cornell Center on the Death Penalty Worldwide celebrated its official launch on October 25, 2016, with an expert panel on challenges and opportunities on the path to abolition. The Dean of Cornell Law School, Eduardo Peñalver, welcomed the opening of the Center and highlighted that Cornell was the perfect institution to host it, considering that Cornell houses such outstanding scholars on the death penalty as Sandra Babcock, John Blume, Sheri Lynn Johnson, and Keir Weyble. The Center builds upon the Death Penalty Worldwide database that started in 2011 and will continue to conduct research on the death penalty with the goal of bridging knowledge and advocacy gaps on state practices related to capital punishment. The Center’s research areas will include Latinos on death row in the U.S., women on death row, defendants with mental illness or intellectual disabilities, as well as fair trial violations and wrongful capital convictions. This research and related projects will involve Cornell Law School students, who will work with Center staff to advance the rights of prisoners facing capital punishment.

One of the Center’s main objectives is to increase the quality of legal representation for capital defendants around the world. The Center will launch an annual intensive workshop for capital defenders in summer 2017. Named for the seminal South African judgment abolishing the death penalty, the first session of the Makwanyane Institute will welcome capital defenders from common law countries in Africa for specialized capital training, litigation support and community building.

The Center was privileged to have renowned anti-death penalty activist Sister Helen Prejean, the author of Dead Man Walking, open the launch through videoconference. Sister Helen emphasized how important it was to be part of the global movement to end the death penalty. She shared the story of how she became aware of the conditions of death row inmates in the U.S. after she started writing letters to a death row inmate in Louisiana whom she later accompanied to his execution. She highlighted how crucial it is to conduct research on the death penalty and expressed her appreciation that the Center will continue to bring reliable information to the public.

The expert panelists covered a wide range of issues and challenges surrounding the death penalty, both in the U.S. and abroad. Delphine Lourtau, Executive Director of the new Center, highlighted the current global decline of the death penalty, with executions being concentrated in a handful of states. China executes more defendants than the rest of the world combined, and together the five following top executioners (Iran, Pakistan, Saudi Arabia, Iraq and the United States) account for over 90% of the world’s remaining executions. Ms. Lourtau also mentioned that global terrorism has become a new challenge on the path towards abolition as several states, such as Pakistan for instance, have increased their use of the death penalty in response to terrorism.

When asked for her predictions on the abolition of the death penalty in the U.S., Denny LeBoeuf, director of the ACLU’s John Adams Project, expressed confidence that the death penalty would one day be abolished, but stated that systemic changes in the death penalty take place over many generations. She also underlined that the death penalty is increasingly seen as a human rights issue, not a criminal justice issue. Professor Sheri Lynn Johnson, Professor of Law at Cornell Law School, opined that she was not optimistic about abolition in the near future, but foresaw that the U.S. would likely see a continued decrease in the use of the death penalty by states.

Victor Uribe, Head of Legal Affairs in the Embassy of Mexico, explained that Mexico is strongly opposed to the death penalty in every circumstance and evoked the Avena case, Mexico’s lawsuit against the U.S. before the International Court of Justice on the violation of the consular rights of Mexican nationals facing capital prosecutions. Mr. Uribe emphasized the vulnerability of foreign prisoners on death row, who often do not speak English and are very isolated. During the question and answers session the audience also raised the issues of death row conditions, the death row phenomenon, how the emotional response to crime affected abolition prospects, and of the costs associated with death row.

Following this engaging panel discussion, Professor Sandra Babcock, founder and Faculty Director of the Center, gave a keynote speech in which she recounted her career path and how her different experiences in the U.S. and abroad culminated in the creation of the Cornell Center on the Death Penalty Worldwide. Her first client facing the death penalty in the U.S. was a Canadian national. Professor Babcock was intrigued by the fact that he did not have any contact with the Canadian consulate, which was attributable to a violation of the Vienna Convention on Consular Relations. After raising this treaty violation in a domestic U.S. court, but finding the court unresponsive to the issue, Professor Babcock became an advocate for the U.S. upholding its obligations under the Vienna Convention on Consular Relations. This led her to later become counsel for Mexico in cases of Mexican nationals facing the death penalty in the U.S. She was Mexico’s counsel before the International Court of Justice in Avena and Other Mexican Nationals, a landmark judgment in which the court found that the United States had breached its international obligation to notify detained Mexican nationals of their rights to have Mexican consular officers notified of their detention, depriving them of the assistance of the Mexican government at the time of their capital prosecutions. The Avena litigation led to groundbreaking decisions from the Oklahoma and Nevada courts implementing the Court’s judgment, ultimately leading to the commutation of the death sentence of Osbaldo Torres. For her work, she was awarded the Aguila Azteca, the highest honor bestowed by the government of Mexico upon citizens of foreign countries, in 2003.

This created a bridge between Professor Babcock’s U.S. and international death penalty work. In 2007, as she was a clinical professor leading a trip with students in Malawi, the Malawian High Court issued the Kafantayeni decision striking down the mandatory death penalty. Professor Babcock decided to help prisoners sentenced under Malawi’s mandatory death penalty to be resentenced and worked with the judiciary, the Malawi Human Rights Commission, lawyers and paralegals to make it happen. Through her work in Malawi, 93 former death row prisoners have been released, many of whom appeared in a photo slideshow recording the joy and emotion of former death row inmates as they walked out of prison as free men and women.

The Center is the culmination of many years of hard work and will cement Cornell as a center of excellence on death penalty research and advocacy. It will lead to important collaborations on many issues, including identifying the persistent racial, ethnic and gender bias in the application of the death penalty; implementing international safeguards protecting the rights of persons facing the death penalty; and improving the quality of legal representation in countries where resources are scarce.

-- Anna Kiefer, Research Fellow, Cornell Center on the Death Penalty Worldwide

10/10/2016

Announcing Cornell's Makwanyane Institute for Capital Defense Lawyers

A fair trial is essential to safeguard individuals’ human rights, including the right to life and liberty of the person. In states that continue to impose the death penalty, those accused of capital crimes often lack access to effective legal representation—a violation of their human rights that heightens the risk of wrongful convictions and death sentences. The duty of states to provide adequate legal representation is not fulfilled by the mere presence of an attorney: the right to legal representation entails the right to both effective and meaningful representation, as set forth in the best practices manual for capital defense attorneys published by the Center for the Death Penalty Worldwide.

Even though the quality of legal representation is “[p]erhaps the most important factor in determining whether a defendant will receive the death penalty,” inadequate legal representation remains, as catalogued by the Center on the Death Penalty Worldwide, a critical issue in all countries that impose capital punishment.

The Cornell Center on the Death Penalty Worldwide is pleased to announce the launch of the Makwanyane Institute, an intensive workshop that will provide capital defenders specialized training, litigation support, and community-building opportunities.

Named in honor of the South African Constitutional Court’s seminal decision abolishing the death penalty, the Makwanyane Institute will focus on a different geographical region and legal system each year. The first Makwanyane Institute, which will be held from 12 to 20 June 2017 in Cornell University Law School, will welcome 15 attorneys from common-law countries in Africa.

Application materials will be available in mid-October here on the Cornell Center for the Death Penalty Worldwide website. Click here to register your interest and to receive updates about the Institute.

07/29/2016

Guatemalan Decision Striking Down Death Penalty May Affect Other States

A recent decision by the Guatemalan Constitutional Court may have implications for the application of the death penalty in Texas and other states where juries may recommend death sentences upon a finding that the defendant is likely to be a danger in the future.

Art. 132 of the Guatemalan Penal Code provides (rough translation) that “A murderer shall be punished by imprisonment from 25 to 50 years, however the death penalty may be applied instead of the maximum term of imprisonment if the facts and circumstances of the offense, its commission and motives, reveal that the defendant is especially dangerous.”

In February 2016, the Guatemalan Constitutional Court held that this violated Article 17 of the Constitution, which provides: “Those actions or omissions that are not characterized as crimes or misdemeanors [falta] or sanctioned by a law preceding their perpetration are not punishable.” In essence, this prohibits ex post facto laws.

The court reasoned that a penalty linked to “hypothetical future conduct” is invalid. It also observed that the concept of “future dangerousness” stems from positivist beliefs that a person’s “dangerousness” is biologically determined and therefore insurmountable. The court condemns this as an archaic concept that is antithetical to modern conceptions of human rights, according to which sanctions must be imposed on the basis of what the offender has actually done, not on the basis of who he is.

The court also found that language in the penal code that provided for an alternative sentence of life without parole violated Article 19 of the constitution, which requires that the objective of any criminal punishment is the rehabilitation and social re-adaptation of the offender.

Presumably, in the wake of this decision, Guatemalan courts may no longer impose death sentences for murder unless and until the penal code is re-written.

-- Sandra Babcock

07/18/2016

Pathways to Abolition of the Death Penalty: Analyzing the Elements of Successful Abolition Strategies

Death Penalty Worldwide at Cornell Law School is pleased to announce the publication of its most recent study of the factors leading states to abolish capital punishment in law. Pathways to Abolition of the Death Penalty examines the historical and political processes underlying abolition, including the roles played by state and non-state actors such as parliamentarians and government officials, human rights defenders and international organizations, journalists and public opinion. The study, which benefitted from the support of the Swiss government, was launched at the 5th World Congress Against the Death Penalty in Oslo, Norway, on June 23.

Our project expands upon the groundbreaking report published by the International Commission against the Death Penalty in 2013, How States Abolish the Death Penalty. Building upon the case studies and trends observed in the ICDP’s report, our publication covers 14 new jurisdictions across the world. We examined examples across a range of geographical regions and periods, from the world’s first full legal abolition in Venezuela in 1863 to the most recent abolition success stories (Fiji, Suriname, Republic of Congo, Madagascar, Benin and Maryland). 

From these diverse historical and political contexts, we analyzed the elements of effective abolition strategies. While there is no universal blueprint and every country comes to abolition in its own way and on its own timeline, our study suggests that, especially in recent years, pathways to abolition rely on a combination of factors, including (1) restricting or suspending the death penalty in the years leading to abolition; (2) engaging parliamentary allies; (3) making use of the advocacy opportunities provided by human rights bodies’ prioritization of capital punishment; and (4) harnessing the momentum of the global trend towards abolition.

-- Delphine Lourtau and Sandra Babcock

04/20/2016

Congo’s Presidential Election Strengthens the Controversial New Constitution that Abolished Capital Punishment

On March 20, 2016, a tense presidential election in the Republic of the Congo resulted in the re-election of President Denis Sassou Nguesso, who has been in power for a total of 32 years. One of the election’s least discussed outcomes is its solidification of the new constitution that President Sassou introduced last year and that provides for abolition of the death penalty.

In October 2015, President Denis Sassou Nguesso announced his intention to hold a referendum on a new constitution. The proposed constitution would lift the existing age and term limits that constitutionally prevented him from running for a third consecutive term in office. The reform unleashed mass political protests as Congolese opposition parties and their supporters contested what they perceived as an illegitimate and undemocratic attempt to remain in office. There was little political discussion, however, around the constitutional provision abolishing capital punishment. After a brief campaign marred by partisan violence, the new constitution, including the abolition of the death penalty, was approved by referendum. Opposition parties contested the referendum results, but they were confirmed by the Constitutional Court and the new constitution was promulgated on November 6, 2015.

Although Congolese law contemplates applying the death penalty to a wide range of offenses, capital punishment has in practice been rarely applied over the past 30 years. The Republic of Congo was long considered an abolitionist de facto state: it has not carried out an execution since 1982, and the number of death sentences handed down by its courts has declined steeply since 2000. Congo’s shift towards abolition has been visible at the international level, where it voted in favor of all five UN General Assembly resolutions calling for a universal moratorium on capital punishment. Given the death penalty’s effective disappearance from the criminal justice system, and with political conditions favoring legal abolition, constitutional review provided an opportunity to immediately abolish the death penalty in Congolese law. It is now likely that the National Assembly will soon introduce a law abolishing capital punishment as part of broader reforms of the Congolese Criminal Code.

Electoral timing may have had an effect on the pathway to formal abolition, since its elevation to a constitutional norm is widely believed to have been a strategic political move intended to enhance the overall appeal of the constitution, especially vis-à-vis the international community. Abolition – which was not contested in the wake of the referendum – has however long been promoted by the country’s human rights organizations and enjoys the support of most of Congo’s political elite. Rights groups believe it likely that the country was poised to eliminate the death penalty by other means had the constitutional review not taken place.

The unrest surrounding the constitutional referendum raised concerns about the longevity of the constitution guaranteeing abolition, but the recent political election, which proceeded without violence, has solidified the new political framework and entrenched abolition.

it is hoped that abolition will be followed by broader reforms of the Congolese criminal justice system, which is severely underfunded and has been reported to suffer from corruption and inefficiency.

-- Marion Gauer and Delphine Lourtau

02/15/2016

A Grim Yardstick: Measuring Death Penalty Trends Within UN Human Rights Mechanisms

Professor William Schabas described the progress of death penalty abolition as a useful looking glass through which to assess the international community's broader respect for human rights. The death penalty is a human rights issue that more easily lends itself to quantifiable analysis, unlike many other human rights, such as slavery or torture.[1] It is, in essence, a grim yardstick of the world's respect for human rights as a whole. Renowned human rights expert Bryan Stevenson stated that "the moral arc of the world is long, but it bends towards justice"[2] and the death penalty's progress towards abolition is certainly evidence of this.

Despite this trend beginning to slow, the death penalty is no longer a method of punishment that death penalty States eagerly defend, nor do they proudly wear the badge of executioner. Within the context of UN human rights mechanisms, the various perceived benefits of the death penalty, those tired and false justifications of deterrence and revenge, are no longer relied upon. In their place, death penalty States fall back on conciliatory language, justifying the use of the death penalty as a temporary necessity, a means to an end, or simply the existence of popular support within the community for its retention. Indeed, my study of 91 States that had not abolished the death penalty revealed that, in the context of their review by the UN Human Rights Council, only 19 of them spoke in positive terms of the perceived benefits of the death penalty. This sits in stark contrast to the 78 States which, rather than attempting to simply justify the retention of the death penalty, highlighted the fact that it was subject to ongoing restriction. The analysis of these justifications was made possible through studying the operation of one significant UN human rights mechanism.

The Universal Periodic Review, or UPR for short, is a rather recent creation of the UN Human Rights Council. It was created to replace the monitoring role played by the United Nations Commission on Human Rights, which fell out of favour due to over-politicisation and a lack of independence. This is an important factor to be aware of as it shaped the mandate of the UPR. The new process is intended to be collaborative, inclusive, and optimistic. The process of the UPR is quite simple. All States are subject to review during a cycle which lasts approximately 4 years. The review process involves a report by the State under review and “alternative” reports by NGOs and other stakeholders. The process culminates in a working group where questions are put, recommendations for improvement made, and certain obligations accepted voluntarily. While the effectiveness of this process at bringing about concrete human rights progress on the ground is widely debated, it is nevertheless a powerful tool for identifying customary international law.

Customary international law allows for States to be bound by international minimum standards that go beyond their treaty obligations. In order to be universally binding, these standards must be widely recognised by the international community and can be identified by what States both say and do. Their existence is vitally important to the development and protection of human rights globally. Examining what States do in practice is a self-evident means for identifying customary law, but what a State says, even when it contradicts its own actions, is also relevant. If North Korea, for example, denies the use of state-sanctioned torture, this comment can be used as evidence of the universal acceptance of the prohibition against torture, even if the State does, in fact, commit acts of torture. In other words, the very denial of the existence of torture implies an acknowledgement that torture is prohibited under international law, thereby further cementing the formation of the customary international norm.

Ban Ki-Moon recognised the power of the UPR to bring about change through the identification of death penalty norms, stating that "[e]ven States that are not subject to conventional obligations with respect to capital punishment have participated in the universal periodic review as if they were subject to international norms concerning the death penalty."[3] My study of the UPR process revealed fascinating insights into just how tenuous support for the death penalty truly was. For example, Barbados relies on the fact that the death penalty has been in abeyance for over 30 years as evidence that "spoke louder" than an official moratorium.[4] Similarly, Bangladesh stated that it is not able to impose a moratorium "at this stage", showing tacit support for ending executions in the future. A number of other countries, including Viet Nam, stated that the death penalty will be abolished when conditions allow. Similar progressive commitments were made by a number of other States, including Iraq, which hoped that security and stability would be "paving the way for the abolition of capital punishment".[5] It becomes immediately apparent from analysing the language of death penalty States that a large portion of them view the death penalty as either a transitionary measure, an obstacle to be overcome, or a totally defunct practice.

When one considers that only 19 States advocate for the use and expansion of the death penalty within the UPR together with the positive trend of more states abolishing capital punishment each passing year, it becomes apparent that the world embraces the restriction and ultimate abolition of capital punishment. While it cannot yet be said that total abolition is a customary norm, there is certainly a strong case to argue that the continued restriction of the death penalty is custom. This means that under international law, States may not expand the application of the death penalty and must restrict it to comply with universally recognised minimum standards. These minimum standards include ending the death penalty's application to drug offences and other non-fatal crimes, and prohibiting the execution of children. Furthermore, the way in which capital punishment is imposed is a vitally important area of restriction, and international custom arguably demands the end of mandatory death sentences, and the end of execution methods such as stoning which clearly violate the prohibition against cruel and unusual punishment.

The UPR not only reveals evidence that supports the development of customary international law, but also provides invaluable information to abolitionist States on how to conduct anti-death penalty advocacy. In particular, it demonstrates the need for an incremental approach, which takes into account the relevant issues confronting the target death penalty State. For example, one of the most recalcitrant death penalty States, Iran, received 27 recommendations regarding capital punishment. 24 of those recommendations called for total abolition, and were all rejected outright. However, the three that were accepted were far more incremental. They related to Iran adhering to minimum standards when imposing the death penalty, in particular ceasing its application to the crime of apostasy and to children. By eliciting Iran’s endorsement, these recommendations contribute to the development of an international trend and also give future advocacy a strong starting point.

The benefits of examining the death penalty within the UPR are threefold: improving our knowledge of contextual realities and tailoring advocacy accordingly, creating a firm basis upon which to commence future advocacy, and identifying customary international law. Secrecy is the death penalty's greatest ally, and the UPR creates a degree of transparency that will assist the abolitionist cause in the future. However, abolitionist States and NGOs must encourage effective and incremental recommendations to death penalty States. The international community must keep in mind that the difference between retentionist and abolitionist States is "less one of temperament than of timing".[6] In acknowledging this reality, we can better assist death penalty States in moving incrementally towards total abolition. The steady progress towards abolition demonstrates that the death penalty is becoming increasingly irrelevant as a form of punishment. The UPR will provide invaluable assistance in ensuring that a customary norm of total abolition is arrived at sooner rather than later.

-- John Riordan is an Australian lawyer and anti-death penalty advocate. He has worked as a com committee member for Reprieve Australia, as well as co-founding the Mercy Campaign in support of two Australians, Andrew Chan and Myuran Sukumaran, who were executed in Indonesia in 2015. He recently completed his LLM of Public International Law, writing his thesis on the death penalty and international law.

 

[1] Schabas, W., Accelerating world trend to abolish capital punishment, Oxford University Press Blog, 11 October 2013. (Available at: http://blog.oup.com/2013/10/world-day-against-the-death-penalty-pil/)

[2] Stevenson, B., We Need To Talk About An Injustice, TED, March 2012. (Available at: http://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice#t-1235866)

[3] Economic and Social Council, Report of the Secretary-General: Capital punishment and implementation of the

safeguards guaranteeing protection of the rights of those facing the death penalty, UN Doc. E/2015/49, 13

April 2015, p. 61.

[4] Barbados Working Group, 12 March 2013, A/HRC/23/11, para. 92.

[5] Iraq National Report, 18 January 2010, A/HRC/WG.6/7/IRQ/1, para. 116.

[6] Warren, M., Death, Dissent, and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign

Relations, 13 Wm. & Mary Bill Rts. J. 309, 2004, p. 335.

02/08/2016

The Death Penalty in 2015: Fewer States Carry Out An Overwhelming Majority of the World’s Executions

Death Penalty Worldwide’s tally of executions carried out around the world in 2015 delivers two key insights on global attitudes towards capital punishment. First, the death penalty is increasingly a localized phenomenon, with a small and declining number of states carrying out the vast majority of the world’s executions. Second, the application of capital punishment continues to be characterized by deliberate secrecy.

Analyzing global trends on the use of the death penalty is partly an exercise in informed guesswork. Most retentionist states either treat capital punishment as a state secret or provide only partial information on their use of the death penalty, conducting capital trials behind closed doors and carrying out covert executions. The inscrutability of death penalty practices makes it difficult to assess the real prevalence of capital punishment in national justice systems and prevents monitoring for human rights abuses. This almost universal lack of transparency sets the death penalty apart as a punishment with more political than penological underpinnings.

Still, it is clear that judicial executions are increasingly confined to a very small number of states that execute at disproportionately high rates. Only 18 of the world’s 195 states and territories were known to carry out a death sentence in 2015 – the smallest number since 2009 – and only 8 of these executed more than 10 people. (It is possible, however, that other retentionist states carried out secret executions that we don’t know about, notably in Vietnam, North Korea and Yemen.) China is believed to carry out thousands of executions – more than the rest of the world combined – but its tight control over death penalty data has forced most organizations to give up gauging execution figures. Even there, however, use of capital punishment has decreased in recent years. One of the few organizations to venture an estimate, the Dui Ha Foundation, reported that around 2,400 people were executed in 2013 and again in 2014, reflecting a significant decline in the number of executions over the past decade. Collectively, the following four top executioners – Iran, Pakistan, Saudi Arabia and the United States – carried out 875 executions at a conservative estimate. Setting aside China, this represents 91 percent of the 954 executions confirmed for 2015. Moreover, this figure is based on the 364 executions officially announced by the Iranian authorities, but several non-governmental rights groups, all of which acknowledge that their figures are likely underestimates, report that as many as 966 or even 1,084 individuals were executed in 2015. As in past years, Iran’s execution numbers represent the world’s highest per capita execution rate.

Our available data also shows that most executions are carried out in two regions: the Middle East, where 6 states executed 540 individuals, and Asia, where in addition to China 8 countries executed 354 people. But even in Asia, executions are largely confined to only a few countries: Pakistan alone accounted for 92 percent of all executions in Asia outside of China. Only two Sub-Saharan African countries executed prisoners in 2015, Somalia and Chad, and the United States was the only state to carry out executions in the Americas last year. No executions were recorded in Europe or the Pacific region.

While the global use of capital punishment has been declining steadily for years, there are exceptions. Pakistan resumed executions after a 7-year moratorium in December 2014 following the Peshawar terrorist attack. While at first the measure was sanctioned only for prisoners convicted of terrorist acts, the government quickly broadened the authorization to execute for other offenses. With a total of 325 executed prisoners in 2015 – almost one a day – Pakistan was catapulted in the space of a year to one of the world’s most prolific executioners, second only to China and Iran. Executions have also surged in Saudi Arabia, which beheaded 158 prisoners in 2015 against 90 in 2014 (and 79 in the two previous years). Some analysts believe that the increase in executions is “a survival move by a kingdom still shaken by the Arab uprisings of 2011 and a leadership in a power struggle.”[1]

Further underlining the political dimension of capital punishment, two more states in which the death penalty had fallen into disuse resumed executions in 2015 in a show of the state’s strength against terrorism. In February, Jordan executed two Al Qaida fighters in retaliation for the Islamic State’s capture and murder of a Jordanian pilot, ending an 8-year moratorium on executions. Chad, which after 12 years without executions was classified by the UN as an abolitionist de facto state unlikely to implement capital punishment, executed ten members of Boko Haram in August.

Death Penalty Worldwide’s global executions monitor for 2016, updated on a weekly basis, is available here.

-- Delphine Lourtau

 

Global Executions Monitor 2015

By number of executions:

China (1000’s), Iran 364 (official) up to 966 – 1,084, Pakistan 325, Saudi 158, United States 28, Somalia 22 (including Somaliland and Puntland), Indonesia 14, Egypt 12, Chad 10, Taiwan 6, Bangladesh 3, Iraq 3, Japan 3, Jordan 2, Afghanistan 1, India 1, Singapore 1, United Arab Emirates 1.

By region:

MENA: Saudi 158, Egypt 12, Iran 364 (official) up to 966-1084, Iraq 3, Jordan 2, United Arab Emirates 1.

Asia: Afghanistan 1, Bangladesh 3, China (1000’s), Japan 3, India 1, Indonesia 14, Pakistan 325, Singapore 1, Taiwan 6.

Sub-Saharan Africa: Chad 10, Somalia 22 (including Somaliland and Puntland).

North America: United States 28.

 

[1] Middle East Eye, Saudi mass executions about political survival, http://www.middleeasteye.net/news/analysis-saudi-mass-executions-about-survival-more-anything-82067822, Jan. 2, 2016.