03/11/2013

India Resumes Executions After 8 Years, Expands Death Penalty to Rape Not Resulting in Death

Death Penalty Worldwide recently updated its entry for India. For the first time in eight years, India has carried out two executions, the first in November 2012 with the hanging of 2008 Mumbai attack gunman Mohammad Ajmal Amir Qasab and the second in February 2013 with the hanging of Muhammad Afzal, who was convicted of plotting the 2001 attack on India’s Parliament.  Commentators have linked both executions to the new president’s swift denials of clemency, which break with his predecessors’ practice of delaying a decision and thus creating a de facto moratorium on the use of capital punishment. Both recent executions also came shrouded in controversial secrecy. The public and the convicted prisoners’ families were not informed of the new president’s clemency denial or the executions until after they took place.

Following the highly publicized case of a 23-year-old woman who was gang raped and murdered, India also recently expanded its laws to include the death penalty as punishment for some instances of rape that cause the victim to fall into a permanent “vegetative state.” The heinousness of the crime prompted wide protests throughout the country demanding swifter and harsher punishments. Also in response to the recent rape case, the age of juvenile eligibility for punishment has been brought into question because one of the accused was allegedly 17 at the time of the offense. Some states have proposed bills lowering the age of eligibility for capital punishment from 18 to 16 - in contravention of international human rights treaties. However, the Indian government has made it clear that it would not seek to expose juveniles to the death penalty, and has begun juvenile proceedings against the 17-year-old accused.   

 

-- Sophia Bairaktaris

12/21/2012

Afghanistan: A Sudden Acceleration of Executions

Death Penalty Worldwide recently updated its entry for Afghanistan. Over the last few years, executions in Afghanistan had taken placeinfrequently.  There was even a brief, 2-year unofficial moratorium in 2009 and 2010, interrupted in June 2011 with the hanging of two men convicted of killing at least 40 people during a bank siege in Jalalabad in February 2011. This past November, however, fourteen hangings took place within two consecutive days for offenses ranging from aggravated rape and murder to terrorism-related acts. On November 20, eight prisoners were hanged in Pol-e Charki Prison. According to a government official quoted by media sources, some of the men were convicted of rape and murder of women and children and some were convicted of murdering security officers. Another six men, alleged to be members of the Taliban, were hanged on November 21. The six men hanged were convicted of terrorist acts, including plotting suicide bombings, kidnappings and assassinations. Moreover, President Hamid Karzai approved a total of 16 executions, so an additional two executions may soon occur. It is unclear what prompted executions to resume at this accelerated pace.

In addition to state–imposed executions, the death penalty continues to be imposed by the Taliban and tribal courts for social crimes under harsh interpretations of Shariah law in areas outside the Afghan government’s direct control, according to the 2011 U.N. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, In one case in August 2010, the Taliban carried out the execution by stoning of a couple that had eloped without permission. In a more recent incident in 2012, the Taliban executed a 22-year-old woman accused of adultery without an actual trial.

The full entry on capital punishment in Afghanistan can be read here.

 

-- Sophia Bairaktaris

12/11/2012

UN General Assembly Committee adopts draft resolution on death penalty moratorium and for the first time comdemns executions based on gender identity

On November 19, 2012, a majority of the world’s states voted in favor of a resolution calling upon all States to “establish a moratorium on executions with a view to abolishing the death penalty” (see full text of the resolution here). The vote took place in the UN General Assembly’s Third Committee, which addresses social, humanitarian and human rights issues. This is the Third Committee’s fourth resolution for a moratorium on the use of the death penalty, and the vote paves the way for a full General Assembly vote in late December.

After resolutions passed in 2007, 2008 and 2010, this year’s resolution looks set to be approved by a record-breaking number of states. In the Third Committee, 110 member states voted in favor of the resolution, which had been sponsored by 91 states. Thirty-nine states voted against (2 less than in 2010) and thirty-six states abstained from voting (1 more than in 2010). Eight states were absent from the vote.

While this year’s resolution garnered only one more favorable vote than in 2010, the numbers mask several significant and encouraging changes of position, notably an increase in support from Africa. Among African nations, the Central African Republic, Niger and South Sudan voted in support of the resolution for the first time. South Sudan’s vote is particularly meaningful given recent reports that legal representation is unavailable for many defendants who face the death penalty.

The break-down of the vote was more mixed for Asia and the Arab-speaking world, but there, too, signs of change emerged. While Sri Lanka and Maldives withdrew their prior support and abstained, three retentionist states, Afghanistan, Indonesia and Papua New Guinea, passed from opposition to abstention. Tunisia supported the resolution for the first time, and although Morocco abstained, its representative delivered a statement recognizing the importance of campaigning efforts to raise awareness around death penalty issues. Oman and Mauritania, meanwhile, voted against the resolution after previously abstaining.

One day later, on November 20, the Third Committee also passed its twelfth resolution condemning extrajudicial, summary or arbitrary executions. The resolution urges States to protect the right to life and to investigate killings based on discriminatory grounds. In a historic development, the resolution for the first time included “gender identity” as well as “sexual orientation” as grounds of discrimination (the full text of the resolution is available here). Introduced by Sweden, the references to gender identity and sexual orientation were criticized by Egypt, Sudan, the United Arab Emirates, and the Holy See, but most opposing countries chose to abstain from voting. Only one country registered an unfavorable vote: Iran.

 

-- Delphine Lourtau

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

11/22/2012

Zimbabwe’s New Constitution Would Restrict Death Penalty to Aggravated Murder

Death Penalty Worldwide recently updated its entry for Zimbabwe. The retentionist African country continued to hand down death sentences in 2012; however, Zimbabwe is now into its eighth year without any reported executions. The last execution was carried out in 2004. Approximately 50 death row inmates were awaiting execution at Chikurubi Maximum Security Prison as of 2011.

In July of this year, the Constitution Select Committee (COPAC) released the final version of its draft constitution, which includes language that would restrict the imposition of the death penalty to murder committed in aggravating circumstances. According to the final draft, the death penalty cannot be imposed on women, persons under the age of 21 when a crime was committed, and persons over the age of 70. The new constitution must be approved through a referendum before it becomes official law, and a date has yet to be set for the vote.

Full abolition, however, is not expected in the short term. The Zimbabwean government rejected recommendations to install an official moratorium or commute death sentences at its 2011 Universal Periodic Review. However, recommendations to “consider ratifying” the Second Optional Protocol to the ICCPR and to “take measures” to abolish the death penalty were accepted. The Zimbabwean government delegation stated that the death penalty was under consideration in its constitution-making process. Once a position was established through the new constitution, Zimbabwe said it would then consider ratifying the Second Optional Protocol to the ICCPR.

The full updated entry on Zimbabwe is available here.

--  Sophia Bairaktaris

11/01/2012

Indonesia’s Supreme Court, President Commute Death Sentences for Drug Offenders

Earlier this year the Supreme Court of Indonesia vacated the death sentence of a convicted narcotics producer and distributor. In its place, the court handed Hengky Gunawan, who was arrested in 2007 for running a large ecstasy production operation, a 15-year sentence. The ruling, which was quietly made in April but made public earlier this month, has sparked curiosity and controversy concerning the retentionist country’s position on the death penalty. The Supreme Court’s ruling reportedly said that the death sentence was in violation of Article 28 of the Indonesian Constitution, which provides for rights to life and to remain free from torture that are “fundamental human rights that shall not be curtailed under any circumstance;” and Article 3 of the U.N. Universal Declaration of Human Rights.

“The judges considered the ruling to be against human rights,” court spokesman Joko Sarwoko told the Jakarta Globe. However, the spokesman also reportedly stated that the ruling did not represent a shift in the court’s opinion and should not be held as a precedent for future cases concerning drug offenses. According to the Indonesian Penal Code and laws, several drug offenses are punishable by death, including drug possession; the involvement in manufacturing or trafficking; involving children in production, trafficking or use of narcotics; and the abuse or possession of psychotropic drugs “in an organized manner.”

Shortly after the court issued its decision, President Susilo Bambang Yudhoyono commuted the death sentence of convicted drug mule Deni Setia Maharwa to life in prison. The president’s decision, while drawing criticism from politicians and anti-narcotics activists, was distinguished from that of the court by Justice and Human Rights Minister Amir Syamsuddin. Needing to support his family and pay off a car loan, Deni had agreed to carry 3.5 kilograms of heroin and 3 kilograms of cocaine to London. The president reportedly took those facts into consideration before commuting his sentence. Amir told the Jakarta Globe that the president would not have granted clemency to a major producer and distributor as the court did.

According to The Jakarta Post, Amir stated at a press conference on Oct. 16 that the president has commuted the death sentences of three other inmates to life in prison since 2007. While Indonesia has not adopted the Second Optional Protocol to the ICCPR, it is possible that the Indonesian government is shifting its position concerning the death penalty in response to its efforts to prevent the executions of Indonesian migrant workers  who are currently on death row abroad. The last executions in Indonesia were carried out in 2010.

 

--Sophia Bairaktaris

09/25/2012

Guatemala Implements Death Penalty Decisions of Inter-American Court on Human Rights

Death Penalty Worldwide has recently confirmed that between 2005 and February 2012, the Supreme Court of Justice of Guatemala commuted all pending death sentences to the maximum imprisonment for the offender’s crimes. As a result, there currently are no death row inmates in Guatemala. The commutations were issued in response to a set of two rulings issued in 2005 by the Inter-American Court of Human Rights: Raxcacó Reyes v. Guatemala and Fermín Ramírez v. Guatemala. The Inter-American Court found that Guatemala’s death penalty violated the country’s international obligations in several respects: because it allowed for the mandatory death penalty, because it created new crimes that were punishable by death, and because there was no clemency process. 

Guatemala is considered an abolitionist de facto state by the United Nations, meaning that it has not carried out any executions in the past 10 years.  Guatemala has not executed anyone since 2000. Guatemala has also twice voted in favor of the United Nations General Assembly’s Resolution to institute a universal moratorium on the use of the death penalty, in 2007 and 2010 (in 2008, Guatemala abstained from voting).

The commutations by the Supreme Court were an enormously significant step forward for this Central American country.  However, in Guatemala the death penalty still exists in national legislation and therefore its courts may pronounce death sentences at any time. Currently, Guatemala has a de facto moratorium on the application of the death penalty, primarily because of the legal vacuum regarding the procedure to request a pardon.  Over the past few years, including in 2012, Congress has proposed three bills establishing a clemency procedure with a view to resuming executions. The first two bills were vetoed by the president, and the most recent one is still making its way through the legislative process.   The current President has resolved to carry out executions during his tenure, but until Guatemala adopts a clemency procedure any executions would violate Guatemala’s international obligations.

Today, 15 years after the peace accords were signed, Guatemala is plagued by widespread insecurity, violence, and crime.   In her March 2012 visit to Guatemala, Navi Pillay, the UN High Commissioner of Human Rights, recommended that Guatemala abolish the death penalty. Nevertheless, abolition is not likely to happen any time soon because during the current period of high public insecurity, certain sectors persistently advocate for its reinstatement.  

You can find Death Penalty Worldwide's full entry for Guatemala here.

-- Vanessa Arroyo Boy

Nevada’s Supreme Court Upholds ICJ Ruling on Consular Rights of Mexicans

On September 19, 2012, in the case of Gutierrez v. State, the Nevada Supreme Court became the second court in the United States (after Oklahoma’s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals.  In the
Avena decision, the International Court of Justice (ICJ) held that the United States had failed to notify 51 Mexican nationals on death row of their consular notification and access rights pursuant to Article 36 of the Vienna Convention on Consular Relations.  To remedy these violations, the ICJ held that the United States courts must review and reconsider the convictions and sentences of the condemned Mexicans to determine whether (and how) they were prejudiced by the deprivation of their consular rights.

In 2004, the Oklahoma Court of Criminal Appeals applied the ICJ’s ruling in the case of Osbaldo
Torres, and after conducting an evidentiary hearing, concluded that he had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma Governor had already commuted his death sentences to life imprisonment based in part on the ICJ’s decision.  But in the case of José Medellín, the Texas courts refused to follow Oklahoma’s example. The United States Supreme Court ultimately held that the ICJ’s Avena Judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.  In a
concurring opinion, however, Justice Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment.  Citing the Torres, case, he urged Texas to provide the required review:  “One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation.
Texas' duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current
controversy.”

Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in 2008 without receiving the review and reconsideration to which he was entitled under the Avena judgment.  The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.  Then, in 2011, Texas executed Humberto Leal García in violation of Avena’s mandate. 

The Nevada Supreme Court distinguished the Medellín and Leal cases, noting that Gutierrez had
presented substantial evidence of prejudice.  Gutierrez had a sixth grade education and spoke little English at the time of trial.  The court interpreter falsified his credentials and failed to correctly interpret the testimony of a number of witnesses.  In remanding the case for an evidentiary hearing, the court cited Justice Stevens’ concurrence i Medellin, noting that while “without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.”  (emphasis in original).

The court was particularly troubled by the interpreter’s falsified credentials and flawed
interpretation.  Noting that it remained an open question as to whether consular assistance might have affected the quality of interpretation available to Perez Gutierrez, the court concluded:
“What is clear, though, is if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ,  to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate
would have regularized them.”

Nevada is the only state, apart from Oklahoma, to have complied with the ICJ’s judgment.  Nevertheless, the decision provides important ammunition to foreign nationals seeking review of their Vienna Convention claims in states other than Texas. It also serves to remind lawyers that they should continue to aggressively litigate Vienna Convention violations, particularly in the cases of Mexican nationals subject to the Avena judgment. 

-- Sandra Babcock

09/09/2012

Iraq: Mass Executions and No Transparency

The United Nations and the European Union have joined human rights groups in denouncing the recent execution of 26 people in Iraq, the latest in a wave of mass executions that have been carried out since the beginning of the year.

On August 27, 21 prisoners including three women were executed in Iraq, and five more were executed two days later. This brings the total number of executions in Iraq since the beginning of 2012 to almost 100, a worrying and significant increase compared to the 68 executions carried out during the whole of 2011.

The government of Iraq does not release the names of executed prisoners or details about their trials or offenses, but a justice ministry spokesperson announced that all of the prisoners, like most of those executed in the past few years, had been convicted of charges related to terrorism. Under Iraqi law, terrorism comprises offenses against transportation and communications infrastructure, and may cover such acts as the simple theft of electricity.

In addition to concerns about the vagueness and overbreadth of the offenses for which prisoners are executed, human rights groups have been alarmed by major problems with the fairness of criminal trials and by the prevalence of torture in Iraqi prisons and detention centres. There are reports that some of the convictions were based on coerced confessions.

Mass executions have been a growing concern this past year in Iraq. On one day in January, 34 prisoners were executed – the largest number of confirmed executions worldwide in a single day in years. Responding to the news, UN High Commissioner for Human Rights Navi Pillay said she was shocked. “Even if the most scrupulous fair trial standards were observed, this would be a terrifying number of executions to take place in a single day,” she stated.

Rights groups such as Amnesty International and Human Rights Watch have been joined by the UN and the European Union in demanding a moratorium on executions. The United Nations Assistance Mission for Iraq warns that “sources have indicated that more executions may be carried out in the coming days.” Although the Iraqi government does not publish any official data on death sentences, it is estimated that hundreds of prisoners remain on death row. That number, moreover, may be on the rise: since October 2011, Iraqi authorities have been carrying out mass arrests and unlawfully detaining hundreds of people incommunicado without trial or known charges.

 

-- Delphine Lourtau

 

09/04/2012

Death Penalty Worldwide Publishes Review of Death Row Prison Conditions Around the World

Death Penalty Worldwide has published a review of prison conditions on death row around the world.  The survey of the world’s 93 retentionist and abolitionist de facto countries reveals that dismal and inhumane conditions pervade prisons in countries that retain the death penalty, including overcrowding, understaffed prisons, insufficient medical care, unsanitary living conditions leading to infectious diseases, custodial deaths, torture, corruption and inmate-on-inmate violence. 

The most common problem is prison overcrowding: prisons are filled beyond their capacity, sometimes housing up to two or three times the maximum number of inmates, and in some instances up to 600% more than the maximum holding capacity.  The problem of understaffing has in part developed from overcrowded prisons, and has in turn led to security issues and jailbreaks. 

Another widespread problem is insufficient or wholly absent medical care due to understaffing or inadequate supplies, which has caused custodial deaths on death row. In some cases, ill death row inmates are deprived of adequate medical care—or are deprived of any care at all—simply because they are on death row and already scheduled to die.  Other custodial deaths are caused by malnutrition and infectious diseases (which are linked to the problems of inadequate medical care and overcrowding) and inmate-on-inmate violence. 

Torture is also prevalent on death rows around the world, where inmates have been subjected to rape, shackling, extreme isolation or excessive use of solitary confinement and other methods of psychological or physical torture. 

Corruption and abuse in prisons is also a problem. In some cases, prison staff demand bribes or sexual favors from death row inmates in exchange for necessities like food or water.  Abuse can also take the form of humiliating treatment.

Further custodial deaths can result from inmate-on-inmate violence, which is of particular concern in prisons where more vulnerable inmates, such as juveniles, women and mentally ill prisoners are detained together with adult male prisoners. 

Our analysis reveals that the majority of states that retain the death penalty in law or in practice fall far short of international human rights norms that protect every human being—including incarcerated prisoners—from cruel, inhuman, or degrading treatment or punishment.