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11/26/2012

Foreign Relations, Reciprocity and the Abolition of the Death Penalty

Over the last month or two, Singapore and Malaysia have announced plans to reduce the scope of the death penalty, while Indonesia has commuted the death sentences of drug traffickers who were sentenced to death.  While human rights activists and abolitionist governments have applauded these measures, few have taken note of the foreign relations concerns that animated each decision. 

When Malaysia’s government announced that it would likely abolish the mandatory death penalty for certain categories of drug traffickers, Law Minister Datuk Seri Mohamed Nazri Abdul Aziz explained that close to 250 Malaysians had been arrested as drug mules and sentenced to death in countries such as China: "[H]ow are we to appeal for leniency from other governments for Malaysians who are in death row in their countries when we hand out the death sentence?"  Seventy-five Indonesians on Malaysia’s death row would be affected by this change in the law. 

Meanwhile, Indonesia’s president commuted the death sentences of a drug trafficker in October 2012, a decision that sparked a heated debate in the country. Responding to criticism, Indonesia’s Foreign Minister observed that most of the world’s nations had abolished the death penalty.  But in addition, Indonesia has emerged as a strong advocate against the death penalty for its citizens abroad, setting up a fund to prevent the execution of Indonesian domestic workers in Saudi Arabia.  As human rights lawyer Todung Mulya Lubis observed, "Indonesia does not have the right to ask for mercy for Indonesian migrant workers, to have them spared or pardoned, if we still impose that penalty in Indonesia."

Of course, European and Latin American countries have long sought to prevent the execution of their nationals by foreign governments.  Mexico, Paraguay, and Germany have all sued the United States in the International Court of Justice to prevent the executions of nationals whose consular rights had been violated. But these countries were already abolitionist—so their advocacy abroad did not lead to any changes in domestic policy.  What is happening in Southeast Asia is different.  For the first time in recent history, retentionist states are limiting the scope of the death penalty in direct response to concerns about reciprocal action by other retentionist states.  And this, in turn, reflects a shift in public perceptions about the death penalty.  Indonesians care about the fate of vulnerable Indonesian domestic workers who could be beheaded by Saudi swordsmen.  Malaysians are beginning to recognize that drug mules are often compelled to carry drugs across borders because they are desperately poor and vulnerable to exploitation.  While neither country is apt to abolish the death penalty entirely in the forseeable future, abolishing the mandatory death penalty for Malaysian drug traffickers could save hundreds of lives and vastly reduce executions in a part of the world that has long been resistant to the implementation of international human rights relating to capital punishment.

-- Sandra Babcock

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