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3 posts from February 2016

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.

02/01/2016

A pioneering study of public opinion on the death penalty in Ghana suggests the unpopularity of the death penalty as punishment for crime

Contrary to popular perceptions, a survey by the Centre for Criminology and Criminal Justice (Ghana) finds that the majority of Ghanaians are opposed to the death penalty. When asked specifically about abolition of the death penalty for murder, 61.7% expressed support for abolition while 39.3% opposed abolition for murder. The study arose in the context of recent efforts by the Government of Ghana to abolish the death penalty. In 2010, the Government of Ghana set up a Constitutional Review Commission to review key aspects of the Ghana Constitution. One of its terms of reference was to reconsider the death penalty as an entrenched provision in the Constitution. The final report of the Commission in 2011 recommended abolishing the death penalty and replacing it with imprisonment for life without parole. The Commission’s recommendation was based on four main arguments. First, Ghana’s current status as a de facto abolitionist ‘does not adequately punish people convicted of crimes that are punishable by death.’ Second, that the death penalty has the danger of ‘invariably transforming [the State] into a killer and there is no justification for the State to become a killer’. Third, that ‘in almost every part of the globe, countries have abolished the death penalty…It can thus be seen that current international opinion is predominantly in favour of abolishing of the death penalty’. The fourth justification offered was based on an argument about the sanctity of life.

The Government issued a White Paper in 2012 in which it accepted the Commission’s recommendation to abolish the death penalty. It justified its decision on the basis of the sanctity of life, which it contended was ‘a value so much ingrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties’.

With this strong indication that the government supports the abolition of the death penalty, it would be easy to conclude that the main hurdle confronting abolitionists has been overcome. However, this might not be the case. There are reasons for caution, not least because the death penalty is an entrenched constitutional provision. This means that the abolition of the death penalty is only possible through a nationwide referendum receiving majority support. Given what we know from research evidence on public opinion on the death penalty, this requirement is a major concern for death penalty abolitionists. Unfortunately, there is no research on public opinion on the death penalty in Ghana. While the Commission carried out a public consultation prior to making its recommendations, there are a number of problems with the procedure adopted. Its restrictive approach and almost exclusive focus on opinion leaders and key stakeholders such as professional bodies and advocacy groups meant that the majority of ordinary Ghanaians could not participate fully in the consultation process.

Knowing what the public thinks about the death penalty is no trivial matter for governments in sub-Saharan Africa, where the criminal justice systems are perceived as corrupt and ineffective. For example, uncertainties about public opinion have fueled concerns about a possible backlash effect in the form of vigilante violence following abolition. Abolishing the death penalty in a context of perceived high crime rates and feelings of insecurity could have real political costs (which perhaps explains Ghana’s hesitation in signing the Second Optional Protocol to the International Convention on Civil and Political Rights).

This underscores the importance of a methodologically rigorous public opinion survey to understand the nature of public attitudes to the death penalty and factors that might be implicated. This was the rationale for our survey, carried out under the auspices of the Centre for Criminology and Criminal Justice (Ghana). The survey presented the first serious effort to empirically investigate public opinion on the death penalty in Africa. The survey, which was funded by the Smuts Memorial Fund and the Cambridge-Africa Alborada Research Fund, comprised a total sample of 2460 adults (18+) randomly selected from four communities in Accra, reflecting the varying socio-economic and ethnic composition of the capital city: high-class communities; middle-class communities; indigenous lower-class communities; and migrant lower-class communities.

The results from the survey were both interesting and surprising. Perhaps the most important finding was that views on the death penalty in Ghana did not appear to be polarized. Contrary to popular belief, 54.3% of the Ghanaians sampled were strongly opposed to the death penalty. This compares with 9.7 % who expressed strong support, while 36% were moderately in support of the death penalty. When asked specifically about abolition of the death penalty for murder, 61.7% expressed support for abolition while 39.3% opposed abolition for murder. Among the small minority who strongly endorsed the death penalty (9.7%), 7 in 10 would support a discretionary death penalty in place of the current mandatory death penalty. The most preferred replacement for the death penalty was life imprisonment without the possibility of parole. This was closely followed by those who preferred life with a possibility of release based on some future risk assessment. Whether or not one was a victim of crime or had a close family member or friend who had been a victim of crime mattered little. Among the proponents of abolition, the two prominent reasons for their position were the sanctity of life and the possibility of executing innocent people.

The second important finding was that the public had very limited knowledge of the type of crimes that attracted the death penalty. The majority of people interviewed wrongly identified robbery as a crime that attracts the death penalty. A possible reason for this misperception might be that robberies, as reported in the media, sometimes involve details about the rape and maiming of victims. Third, there was evidence that demographic factors influenced support for the death penalty. The two most important demographic factors were level of education and type of neighbourhood. People with higher levels of education and residents in high-class neighbourhoods were more likely to oppose the death penalty and to support abolition. Surprisingly, people living in lower-class indigenous areas were more opposed to the death penalty than residents in middle-class areas and lower-class migrant areas. A possible explanation could be the strong kinship or affinity in indigenous lower-class neighbourhoods, which meant that people were more likely to be associated with both victims and offenders. The survey found no evidence of a possible backlash effect in the form of vigilante violence among people interviewed. Finally, we examined the role of evidence in changing attitudes towards the death penalty, focusing on evidence on deterrence, innocence and the global trend towards abolition. Of these three, providing evidence of the possibility of executing innocent people had the greatest impact on people’s attitudes toward death penalty. The least convincing was presenting evidence on global trends towards abolition. Such evidence did not change peoples’ views on the death penalty.

As can be seen, there is much to be gained from conducting a methodologically sound empirical survey on public opinion on the death penalty. Such research could help provide evidence-based insight into a rather complex issue. Preparations for the referendum on the proposals of the Constitutional Review Commission have stalled due to a court case challenging the constitutionality of the process. In October 2015, the Supreme Court dismissed the case, thereby clearing the way for the preparation to resume. We hope that the important findings from this survey will contribute to shaping the debate and inform advocacy work on the abolition of the death penalty in Ghana.

-- Kofi E. Boakye, PhD, is a Lecturer at Anglia Ruskin University and a Visiting Scholar at the Institute of Criminology, University of Cambridge.

-- Justice Tankebe, PhD, is a Lecturer in Criminology at the Institute of Criminology, University of Cambridge.