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.[efn_note]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/)[/efn_note] 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 »[efn_note]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)[/efn_note] 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. »[efn_note]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.[/efn_note] 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.[efn_note]Barbados Working Group, 12 March 2013, A/HRC/23/11, para. 92.[/efn_note] 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 ».[efn_note]Iraq National Report, 18 January 2010, A/HRC/WG.6/7/IRQ/1, para. 116.[/efn_note] 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 ».[efn_note]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.[/efn_note] 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.