The Institute for Domestic and International Affairs
Committee on Crime Prevention and Criminal Justice Death Penalty as it Relates to Foreign Nationals Rutgers Model United Nations 16-19 November 2006
Director: Andrew Silver
Š 2006 Institute for Domestic & International Affairs, Inc. (IDIA) This document is solely for use in preparation for Rutgers Model United Nations 2006. Use for other purposes is not permitted without the express written consent of IDIA. For more information, please write us at idiainfo@idia.net
Introduction _________________________________________________________________ 1 Background _________________________________________________________________ 3 Theoretical Positions Regarding Capital Punishment ___________________________________ 4 The United Nations and the Death Penalty ____________________________________________ 5 Protection of Special Classes from Capital Punishment __________________________________ 7 Death Penalty and Foreign Nationals _________________________________________________ 9 Case Study: The United States _____________________________________________________ 11 The Case of Walter and Karl LaGrand _______________________________________________________12 The Cases of Stanley Faulder and Angel Francisco Breard _______________________________________13
Singapore_______________________________________________________________________ 14 Indonesia _______________________________________________________________________ 15 China __________________________________________________________________________ 16 Iran____________________________________________________________________________ 16 Saudi Arabia ____________________________________________________________________ 17
Current Status ______________________________________________________________ 18 Death Penalty and Foreign Nationals ________________________________________________ 19 The Case of Jose Medellin ________________________________________________________________20
Key Positions _______________________________________________________________ 21 Regional Positions________________________________________________________________ 21 North America__________________________________________________________________________21 Europe ________________________________________________________________________________22 Asia __________________________________________________________________________________22 Africa ________________________________________________________________________________23 Latin America and the Caribbean ___________________________________________________________23 Middle East ____________________________________________________________________________24
Non-Governmental Organizations __________________________________________________ 24 Media Positions __________________________________________________________________ 25 Public Opinion __________________________________________________________________ 25 USA and North America__________________________________________________________________26 Europe ________________________________________________________________________________26 Asia __________________________________________________________________________________26 Africa ________________________________________________________________________________27 Latin America __________________________________________________________________________27 Middle East ____________________________________________________________________________27
Major Religious Viewpoints _______________________________________________________ 28
Summary___________________________________________________________________ 29 Discussion Questions _________________________________________________________ 30 Works Cited ________________________________________________________________ 31 Works Referenced ___________________________________________________________ 37
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Introduction The death penalty has long been controversial due to the ethical and moral issues surrounding willfully taking the life of another person. States are forced to balance the sometimes competing needs of dispensing justice and maintaining order with respect for human rights. The debate concerning capital punishment is therefore important because it addresses the fundamental right of every person to life. States have addressed the issue in various manners, as some governments maintain the use of capital punishment while others have abolished the practice and declared it illegal. Interestingly, some states have not outright banned the use of capital punishment, but have implemented moratoria on the process. While there is no natural division as to what forms of government agree with the death penalty, democratic states are more likely to eliminate capital punishment.1 Although no consensus has been reached on a uniform policy regarding the death penalty, the effect has been that those states that have abolished the practice encourage reform, at the very least, in the policies of states that retain the death penalty. The argument concerning capital punishment is intense regardless of whether it is presented as a question of legality or morality as states and organizations dispute the merits and effectiveness of executing criminals. It is important to note that little has changed over time in the debate regarding capital punishment, but greater emphasis on human rights in recent years has refocused and renewed the controversy. The most important concept for states to comprehend is the need to balance the effectiveness of capital punishment with the moral issues with which it is associated.2 National sovereignty plays a critical role in the debate over capital punishment, as states that retain the death penalty assert the right to establish their own penal system
1
Sovereignty: Sovereignty refers to the power, and the right to exercise that power of self-government that all independent countries have. They can exercise the power of the state without asking permission from another state. Source: www.naiadonline.ca/book/01Glossary.htm
Carsten Anckar, Determinants of the Death Penalty: A Comparative Study of the World (New York: Routledge, 2004) 167. 2 Roger Hood, The Death Penalty: A Worldwide Perspective ( Oxford: Oxford University Press, 2002), 8.
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and reject pressure from the international community calling for the eradication of capital punishment, citing what they believe to be a deterrent against violent crime. Since its inception, the United Nations has been the forum for numerous Universal Declaration of Human Rights: The Universal Declaration of Human Rights (also UDHR) is a declaration adopted by the United Nations General Assembly (A/RES/217, December 10 1948), outlining a view on basic human rights. John Peters Humphrey of Canada was its principal drafter, aided by Eleanor Roosevelt of the United States, RenĂŠ Cassin of France, and P. C. Chang of China, among others. Source: en.wikipedia.org/wiki/UDHR
international agreements regarding the death penalty and its use. States have often interpreted the Universal Declaration on Human Rights’s prohibition of cruel and unusual punishment to mean that the death penalty is not permissible. Additional international documents urge abolition of the death penalty while encouraging states that maintain the death penalty to use the practice only
the most severe crimes. The European Union’s requirement that capital punishment be abolished before a state is allowed to join demonstrates the trend created by international pressure. International agreements further place pressure on retentionist states not to apply the death penalty in certain instances. It is now generally accepted that children, pregnant women, the mentally insane, and the mentally retarded should not be executed; however,
Retentionist State: Retentionist states are those that retain the death penalty for ordinary crimes. Source: en.wikipedia.org/wiki/Retentionist
although the UN Economic and Social Council (EcoSoc) has urged an exemption for the aged, only a few states have complied.3 The United Nations has also had little success limiting the use of capital punishment to only the most serious crimes. Especially in Africa, Asia, and the Middle East, individuals are executed for non-violent crimes such as drug trafficking. The debate over execution of foreign nationals is tempered by its own set of legal and moral questions. Protocols have been established to protect the rights of foreign nationals. The Vienna Convention on Consular Relations (VCCR) of 1969, for example, was enacted to help ensure that those traveling abroad are afforded fair and decent trials 3
Ibid, 119.
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that respect due process of the law. Yet, states that execute foreign nationals are often condemned for not following such international agreements. Not only do these actions raise questions about judicial systems throughout the world, they threaten to tear apart interstate relations. Cancelled diplomatic visits by heads of state and intense battles in the International Court of Justice (ICJ) highlight the increasing levels of confrontation International Court of Justice: a court established to settle disputes between members of the United Nations Source: wordnet.princeton.edu/perl/webwn
associated with applying capital punishment to foreign nationals.4 The conflict goes deeper as some nations, most notably the United States, refuse to accept the validity of ICJ decisions
concerning the rights of foreign nationals. The execution of foreign nationals may also lead to retributive acts. If states do not respect the provisions of the VCCR regarding the rights of citizens of other nations, their own citizens may not be safe when traveling abroad.5 Due to the sensitive moral issues involved with capital punishment, it is difficult to categorize the views of states by region. While states are certainly influenced by regional neighbors and international sentiment, they often rely on public opinion and the perceived effectiveness of the death penalty in their own state to determine whether to maintain the practice.
Background Although cognizant of the moral issues associated with the practice, states have often looked to the death penalty as a means of showing state power and demonstrating that criminals will be harshly punished for their transgressions.
Yet, the effort to
abolish the death penalty is almost as old as 4
the
institution
itself.
The
Enlightenment: An 18th-century movement that focused on the ideals of good sense, benevolence, and a belief in liberty, justice, and equality as the natural rights of man. Source: usinfo.state.gov/products/pubs/oal/gloss.htm
Ying-Jen Lo, Human Rights Litigation Promoting International Law in U.S. Courts, (New York: LFB Scholarly). Publishing LLC, 2005.) 100. 5 David Stout, “Clemency Denied, Paraguayan is Executed,� The New York Times, April 15, 1998, The New York Times, Lexis-Nexis, http://web.lexis-nexis.com.
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Enlightenment was the first time a serious campaign was made to eliminate capital punishment. Success was limited, however, as only Russia, Austria, and Tuscany placed moratoriums on the practice.6 In 1863, Venezuela became the first state to outlaw the death penalty.
Theoretical Positions Regarding Capital Punishment There are four primary stances that states and organizations take concerning capital punishment. The first is that the death penalty is inherently immoral and should be abolished. While age-old societies were founded on the belief that punishment should be in the form of an “eye for an eye,� moral thinking has overpowered vengeance, and there is the growing sense that it is indeed immoral for man to kill man, even if operating under the guise of law enforcement. The second argument in opposition to the death penalty is that it is a permanent end to an imperfect process. New technology has proven that individuals have been wrongly executed in the past, causing proponents of this position to assert that it is better to save a guilty life than take an innocent one. Advocates of this stance note that individuals have been executed based on misidentification, racism, or simply poor judicial standards. In England, for example, Timothy Evans was executed in 1950 for a crime that was actually committed by the primary witness against him.7 Arguing that capital punishment is permanent, adherents to the first stance support alternative punishments.
Other options that are considered more humane and equally effective
include life in prison without the possibility of parole. States and organizations argue that this form of punishment is not permanent, and that people can have their name cleared and regain their freedom if it is later determined that a mistake has been made. Many states believe that this is a more humane way to punish an individual while simultaneously demonstrating the toughness of the judicial system. The argument is that the threat of spending a lifetime in prison is just as effective in deterring crime. 6
Ying-Jen Lo, 9. Dagny A. Blaskovich and Rita J. Simon, A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over (New York: Lexington Books, 2002) 52.
7
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Third, that various international agreements, chief among them the Universal Declaration of Human Rights, and the sentiment of the international community make the abolition of capital punishment necessary. Proponents of this stance believe states that sign international accords calling for an end to capital punishment or urging reform of the practice should honor their commitments. This group believes that the death penalty is in stark opposition to an individual’s guaranteed right to life. Individuals who adopt this stance look to imprisonment as a legal alternative to capital punishment. In support of capital punishment, however, there is evidence to suggest that capital punishment is an effective deterrent to crime, and that state sovereignty precludes the international community from making the death penalty illegal. This group purports that granting the state the power to condemn convicted criminals to death helps diminish serious crime, holding that criminals are more likely to seriously consider their actions before committing a crime because of the threat of execution. China, Japan, Middle Eastern nations, and African states maintain that the death penalty effectively reduces crime. China and Saudi Arabia each adamantly argue that the death penalty has created order and reduced crime rates.8 Adherents to this view also question the effectiveness of life in prison without the possibility of parole. Not only could imprisonment lead to possible escape and violent acts, but it could stimulate aggression within prison as well. As prisoners serving life sentences realize they have no hope of getting out of jail, they may turn violent against other inmates. Capital punishment, on the other hand, provides a permanent solution that ensures a criminal will no longer torment society or fellow inmates.
The United Nations and the Death Penalty The international community has reached numerous agreements that encourage the abolition of capital punishment or, at the very least, a restriction in the sort of cases for which it is used. Although the United Nations Declaration on Human Rights makes no specific mention of the death penalty, proponents of abolition argue that Articles 3 and 5 8
Hood, 210.
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of the document make the practice de facto illegal. Article 3 guarantees each individual the right to life while Article 5 provides freedom from “cruel, inhuman, or degrading treatment or punishment.”9 The United Nations next addressed the death penalty in the context of war. Article 68 of the Fourth Geneva Convention explains specific situations during armed conflict in which the death penalty is permissible, including sabotage, espionage, or such acts that have caused death of one or more people, “provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.”10
In this
fashion, it sought to protect citizens from cases in which an occupying power could use petty crimes as justification for killing
Geneva Conventions: The Geneva Conventions consist of treaties formulated in Geneva, Switzerland that set the standards for international law for humanitarian concerns. The conventions were the results of efforts by Henri Dunant, who was motivated by the horrors of war he witnessed at the Battle of Solferino. Source: en.wikipedia.org/wiki/Geneva_Conventions
innocent populations.11 Article 6 of the 1966 International Covenant on Civil and Political Rights (ICCPR) deals specifically with the death penalty and then manner in which it can be applied. While the convention does not formally approve of the death penalty as a legitimate punishment, it proscribes the conditions under which it can be used, singling out only the most serious crimes, and ensuring that the decision to use the death penalty results from a decision from a “competent court.”12 In 1991, the Second Optional Protocol to the ICCPR came into effect, noting that “abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights,” this document was the first international treaty explicitly advocating the abolition of the death penalty. Clause 1 explicitly states that signatories will no longer execute criminals and will take all action necessary to 9
United Nations, “Universal Declaration of Human Rights,” United Nations, http://www.un.org/Overview/rights.html, (accessed January 29, 2006). 10 “Geneva Convention Relative to the Protection of Civilian Persons in Time of War,” http://www.unhchr.ch/html/menu3/b/92.htm 11 Ying-Jen Lo, 52. 12 Robert F. Drinan, The Mobilization of Shame: A World View of Human Rights (New Haven: Yale University Press, 2001) 132.
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7 The Second Optional
Protocol nevertheless includes a clause allowing application of the death penalty during times of armed struggle. This clause was largely added for the purpose of encouraging as many states as possible to sign the document to demonstrate a strong abolitionist sentiment. The Protocol also states that capital punishment should only be applied for the most serious crimes, and lists infractions that threaten a state’s national security.14 It should be noted that while there are 152 states party to the ICCPR, only 50 have signed the Second Optional Protocol, highlighting divisions regarding the use of the death penalty.15
Protection of Special Classes from Capital Punishment Emphasis on human rights has convinced retentionist states to place certain limitations on use of the death penalty. Many states now accept that capital punishment should not be applied to children, the aged, pregnant women, or insane or mentally retarded individuals. Article 37 of the Convention on the Rights of the Child safeguards children under the age of 18 from death sentences.16 One hundred ten states have either ratified this document or include exemptions for children in their laws; however, many states have not ratified this document or simply continue to execute minors, and since 1990, China, the Congo, Iran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen have executed children. Of these states, China, Pakistan, and Yemen have since exempted children from the death penalty, and a similar process is underway in Iran.17 The Economic and Social Council of the UN has been largely unsuccessful in protecting the rights of the aged. Few states have adopted a maximum age for people to be executed, but for those that have the age varies between sixty and seventy years old. 13
European Union, “Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty,” European Union, http://www.eurunion.org/legislat/DeathPenalty/Prot2CivPolRts.htm (accessed January 29, 2006). 14 Ying-Jen Lo, 53. 15 “Status Of Ratifications Of The Principal International Human Rights Treaties” http://www.unhchr.ch/pdf/report.pdf 16 Ying-Jen Lo, 57. 17 Amnesty International, “Facts and Figures on the Death Penalty,” Amnesty International, http://web.amnesty.org/pages/deathpenalty-facts-eng (accessed January 29, 2006).
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The Philippines and the Sudan, for example, have set the maximum age at seventy years old, while Mongolia and Guatemala limit the death penalty to those under age sixty. States that prohibit the death penalty to children because of their perceived lack of responsibility have found difficulties applying the same rationale to the elderly. However, senility is often considered a form of limited mental capacity to be considered during sentencing.18 The United Nations to establish women as a protected class against capital punishment, but has not established an international consensus on the issue.
States that most strongly
prevent women from being executed are found in the former Soviet Bloc, including Belarus, Uzbekistan, and
Protected Class: a group that receives special protection from discrimination and other affects of law. In the case of capital punishment, people suffering from mental health deficiencies would represent a protected class.
the Russian Federation. Women have recently been executed in China, Congo, Indonesia, Thailand, and Japan, among others. One area in which the UN has made strides is protecting pregnant women from execution. Death sentences handed down for pregnant women are usually commuted and they are instead assigned life in prison.19 The United Nations encourages retentionist states to make exceptions for insane individuals on the grounds that they are not able to make rational decisions. Reports to the UN in both 1962 and 1967 noted that all retentionist states include provisions exempting insane individuals from capital punishment. It is often difficult to define insanity, however, and verdicts depend on additional factors. Matters such as the severity of the crime and the perspectives of jurors influence an individual’s sentence.20 Lastly, the United Nations has urged retentionist states to consider mental retardation as a mitigating circumstance when assigning the death penalty. Although mental retardation is not universally seen as a reason to halt an execution, it is viewed as an extenuating circumstance to be considered during sentencing. When the United States 18
Hood, 119. Ibid, 120 20 Ibid, 122 19
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Supreme Court found the execution of mentally retarded individuals unconstitutional in the 2002 case of Atkins v. Virginia, the U.S. became the last state to eliminate capital punishment for mentally retarded individuals.21 One area in which the UN has been especially deficient is preventing the use of capital punishment for non-violent crimes. In Asia and the Middle East, the list of crimes that carry the death penalty has been steadily growing, and can serve as punishment for homosexuality, drug trafficking, adultery, and corruption or theft, among other crimes.22 To combat the increasing narcotics trade, especially that of opium and heroin, Cambodia, China, Laos, Myanmar, Thailand, and Vietnam all execute individuals involved in drug trafficking. In nations such as Singapore, the death penalty is mandatory for this offense. These policies are in stark contrast to what appears to be a growing consensus among Member States of the United Nations.
Beginning with the ICCPR, the UN has
encouraged nations that retain the death penalty to only apply it for the most severe crimes.23
Death Penalty and Foreign Nationals Not every state that retains the death penalty uses it as punishment for foreign nationals, as killing a citizen of another state can cause considerable diplomatic tension, especially if the person in question is from a state that has deemed the death penalty improper punishment.
For those that do consider using capital punishment against
foreign nationals, however, the Vienna Convention on Consular Relations (VCCR) establishes firm guidelines regarding the manner in which alleged criminals and those convicted of crimes are to be punished. A consul is someone appointed by a government in one state to aid citizens who choose to travel to another.24 Should an American citizen traveling in the Gambia come 21
Ibid, 127 Naomi Koppel, “Amnesty International: Executions Around the World Doubled Last Year,” The Associated Press, April 9, 2002 Lexis-Nexis, http://web.lexis-nexis.com. 23 Drinan, 132. 24 U.S. Department of State, “Consular Notification and Access, Part 5: Legal Material.” http://www.travel.state.gov/law/consular/consular_744.html (accessed January 29, 2006). 22
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their situation with members of their own
Consul: a diplomat appointed by a government to protect its commercial interests and help its citizens in a foreign country.
government. The VCCR was enacted to ensure
Source: wordnet.princeton.edu/perl/webwn
they can visit the American consulate to discuss
that consulates could perform their duty and protect the rights of citizens traveling abroad, regardless of the country in which they operate. As of 2000, one hundred sixty-five states had signed the VCCR. Although the convention does not only apply to a foreign national’s rights when facing the death penalty, it has become important in this particular area. Article 36 of this document guarantees foreign nationals and their consulates certain rights and privileges should a foreign national be arrested abroad. Consulates have the right to contact their citizen, citizens have the right to contact their consulate, and consulates enjoy the right to visit their citizen in prison in a timely fashion. The article further states that if a foreign citizen is arrested, their consulate will be notified “without delay.”25 This phrase has become a source of contention among signatories of the convention, as prisoners have languished on death row unaware of their right to contact their consulate. Optional Protocol Article I notes that any dispute that should arise between nations regarding treatment of their citizens in other states should be settled by the International Court of Justice. This provision is also controversial, as some states do not adhere to the decisions of the ICJ. These guaranteed, internationally accepted rules are not always followed. Foreign nationals often find themselves with poor court-appointed representation and are sometimes not provided translators, rendering them unable to comprehend the proceedings of their case.26 Moreover, they are often denied customary rules regarding evidence and discovery, as would be expected by their criminal justice systems in their home country. 25
These shortcomings hinder their ability to receive a fair trial in
“The Vienna Convention on Consular Relations and Optional Protocols,” Texas Secretary of State Roger Williams, http://www.sos.state.tx.us/border/intlprotocol/vienna.shtml (accessed January 29, 2006). 26 Blaskovich, 51.
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accordance with their rights to due process. Failure to respect consular rights causes strain between the state in which the prisoner is being held and the foreign national’s country.
Non-compliance with the VCCR has led to cases being brought to the
International Court of Justice, and has even resulted in the cancellation of routine diplomatic exchanges. All of this damages relations between nations, which can result in further developments, ranging from reconsideration of treaty arrangements and of negotiated trade agreements.27
Lack of respect for consular rights can also have
dangerous implications for citizens of the executing state traveling abroad, as states sometimes seek to treat foreigners in the same fashion as their citizens are treated when visiting other countries.28 Tensions may escalate further, and the stability of relations between states may be threatened. The following case studies are demonstrative of the use of the death penalty on foreign nationals and illustrate some of the challenges associated with the practice.
Case Study: The United States The United States ranks fifth in the world in terms of the number of people executed each year. Additionally, at least seventy foreign nationals have been executed in the United States since 1976. As of 1 January 2004, 119 foreign nationals from at least thirty-one states were on death row.
29
Nearly half of these individuals are Mexican
citizens, a situation that has increasingly led to political confrontation between these bordering states. At the same time, the United States has put pressure on the Mexican government to extradite American citizens back to the United States for sentencing for crimes they commit in Mexico.30 The U.S. government is also accused of routinely violating the VCCR by refusing to allow Mexican citizens to contact their consulate. In fact, none of the fifteen foreign nationals executed in the United States since 1993 were 27
Ying-Jen Lo, 100. Marion Bray, “Asia’s Grim View on Drug Crime: Death Penalty Record Underscores Region’s Tough Policies,” CNN Online, December 3, 2005, http://www.cnn.com/2005/WORLD/asiapcf/12/01/execution/index.html 29 Monika Mathur. “Capital Punishment in the United States at a Glance,” Associated Press Worldstream, November 23, 2005, Lexis-Nexis, http://web.lexis-nexis.com 30 Noah Leavitt, “Mexican Standoff,” Slate Magazine, December 14, 2005, Lexis-Nexis, http://web.lexis-nexis.com 28
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properly informed of their VCCR rights, according to a study by Amnesty International.31 An examination of various cases within the United States illustrates the strain using the death penalty on foreign nationals creates within the international community.
The Case of Walter and Karl LaGrand Walter and Karl LaGrand
Brothers Walter and Karl LaGrand, both German nationals, were convicted of killing a man in the United States in 1982 and were sentenced to death.
Although law
enforcement officials in the United States were aware the brothers were German, they failed to inform them of their VCCR right to contact the German consulate. It was not until fellow German prisoners made them aware of this right that the LaGrands contacted their consulate, and the case quickly became an international scandal. Germany brought suit against the United States in the International Court of Justice on behalf of the brothers in March 1999. They argued that the brothers were entitled to new trials that respected the rights and privileges guaranteed them by the VCCR. While Karl had already been executed, the Court ruled that the United States had breached its international obligations and should stay Walter’s execution pending a new trial. The decision explicitly stated that the morality of the death penalty was not in
Compulsory Jurisdiction: The agreement to accept and enforce decisions of the International Court of Justice, regardless of the manner in which they violate traditional sovereignty. Jurisdiction can be approved automatically or on a case-by-case basis. States can also deny jurisdiction on issues they feel relate to critical national interests.
question and did not question the legitimacy of capital punishment. As the United States has not accepted compulsory jurisdiction of the Court, and only does so on a case-by-case basis. The United States nonetheless executed Walter and only later apologized to Germany for its actions.32 31
Amnesty International, “USA: Time to End Double Standards and Respect the Consular Rights of Foreign ationals Facing the Death Penalty,” Amnesty International http://web.amnesty.org/library/print/ENGAMR511192001 (accessed January 29, 2006).
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The Cases of Stanley Faulder and Angel Francisco Breard In 1977, 61 year-old Joseph Stanley Faulder, a Canadian citizen, was arrested for murdering an elderly wealthy woman in Texas. Without being informed of his right to consular notification, Faulder was convicted. It was not until a new lawyer, Sandra Babcock, took his case in 1991 that the Canadian consulate was made aware of the situation. Babcock argued that the twenty-two years Faulder spent on death row and the nine previous
Stanley Faulder
dates assigned for execution constituted cruel and unusual
punishment.
Canadian
officials
and
Faulder’s lawyer also protested what they considered U.S. violations of Faulder’s VCCR rights, but a last minute effort to stay his execution was denied by the United States Supreme Court. Although it was later shown that Faulder’s lawyer neglected to show pertinent evidence at trial, the execution proceeded in June 1999.33
A United Nations report issued after the execution
corroborated the Canadian claims that the Americans committed errors in trying the case.34 In another case, Angel Francisco Breard of Paraguay was arrested in 1992 for attempted rape and murder and detained by the state of Virginia without consular notification. He admitted to the crime, and DNA evidence supported his guilt. While U.S.
President Bill Clinton supported the execution, Secretary of State Madeline
Albright, albeit with reservations over the severity of the crime, asked Virginia’s governor to stay the execution. Breard brought suit in U.S. court, alleging that his rights were violated when the government failed to follow VCCR protocol, and the courts ruled 32
Marlise Simons, “World Court Finds U.S. Violated Consular Rights of 2 Germans,” The New York Times, June 28,2001, late edition, Lexis-Nexis, http://web.lexis-nexis.com. 33 Barbara Whitaker, “Texas Executes Canadian Killer Despite International Pleas,” The New York Times, June 18, 1999, Lexis-Nexis, http://web.lexis-nexis.com. 34 Amnesty International, “United States of America – Adding Insult to Injury: The Case of Joseph Stanley Faulder,” Amnesty International, http://web.amnesty.ord/library/print/ENGAMR510861998, (accessed January 29, 2006).
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Breard’s supporters claim that had he been
14 Angel Francisco Breard
afforded proper legal representation, he would have pled guilty and instead accepted a sentence of life in prison.35 The United States rejected these claims, failing to believe that its international agreements were applicable under domestic law; they instead executed Breard in 1999 and later issued Paraguay a formal apology.36
Singapore Singapore has the highest per capita rate of execution in the world.37 The death penalty is mandatory for murder, trafficking drugs, treason, and some serious firearms offenses. Between 1996 and 2000, more than half of the criminals executed by the state Van Nguyen
were foreign nationals. An example is the case of Van Nguyen, an Australian national arrested by Singapore authorities in 2002 for carrying fourteen ounces of heroin. Nguyen had no previous criminal record, but a 1975 Singapore law makes the death penalty mandatory for carrying more than half an ounce of heroin, meaning that the judge had no choice but to order Nguyen’s execution. Singapore claimed the execution was vital to stopping the flow of drugs through
its borders.
Foreign Minister George Yeo argued that the government had “a
responsibility to protect the people of Singapore from the scourge of drug addiction.”38 The Australian government and human rights organizations, such as Amnesty International, campaigned for Nguyen’s life, arguing that he was more valuable alive than dead, as Nguyen had already aided the Australian Federal Police investigation regarding 35
Stout. Elizabeth Amon, “A Treaty That Binds in the Hudson Local Case Tests Effect of Vienna Convention’s Edict: That Arrested Foreign National Has the Right to Call His Consulate,” New Jersey Law Journal, April 20, 1998, Lexis-Nexis, http://web.lexis-nexis.com. 37 Martin Abbugao, “Singapore Activists Face Uphill Battle to Abolish Death Penalty,” Agence France Presse, December 4, 2005, Lexis-Nexis, http://web.lexis-nexis.com. 38 Bray 36
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heroin trafficking in Asia. Ultimately, the pleas of the Australian government failed, as Nguyen became the first Australian executed overseas since 1993.39
Indonesia The UN, Amnesty International, and the Indonesian Human Rights Commission, among others, have consistently questioned the integrity of the Indonesian judicial system. At least sixty-eight individuals are currently on death row. There has been a noticeable increase in death sentences for drug trafficking in Indonesia, with the majority of those receiving this punishment being foreign nationals arrested at Sukarno-Hatta International Airport in Jakarta.40 The first involves Ayodhya Prasad Chaubey, an Indian national convicted of smuggling twelve kilograms of heroin and sentenced to death. Repeated requests for his life to the president and Supreme Court of Indonesia went unsuccessful, and the government repeatedly refused to communicate the sentence to his family or to set an official date of execution.41 Despite the European Union’s last minute effort to save Chaubey’s life, he was executed by firing squad in August 2004.42 Schapelle Corby
This case is in sharp contrast to the second, which deals with Schapelle Corby, an Australian national. She was found with 4.1 kilograms of marijuana in her bag at the airport which she maintained was not hers. The Australian media campaigned vigilantly for her rights, casting doubt on the validity of the entire Indonesian criminal justice system.43 Ultimately, the Indonesian government succumbed
to international pressure, giving Corby a twenty year prison term. It is interesting to note 39
Jane Bunce, “Worldwide Campaign to Save Death-Row Australian Drug Mule,” Australian Associated Press, October 26, 2005, Lexis-Nexis, http://web.lexis-nexis.com 40 Amnesty International, “Death Penalty/Fear of Imminent Execution: Indonesia, Ayodhya Prasad Chaubey, Indian National,” Amnesty International, http://web.amnesty.org/library/print/ENGASA210212004 (accessed January 29, 2006). 41 Ibid. 42 “Indian Executed In Indonesia for Drug Trafficking,” The Nation, August 5, 2004, Lexis-Nexis, http://web.lexis-nexis.com. 43 Janaki Kremmer, “Drug Case Tests Improved Indonesia-Australia Ties,” Christian Science Monitor, May 26, 2005, Lexis-Nexis, http://web.lexis-nexis.com
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that although Australia had numerous other citizens on death row in Singapore, Indonesia, and Vietnam, the Corby case attracted a disproportionate amount of publicity. The increased volume of media coverage can be attributed to the fact that Corby is an attractive young lady. This case, along with the previous one, is also noteworthy because in 1996 the United Nations expressed its desire that capital punishment not be applied for drug and economic crimes.
China No information is available to state exactly how many people China executes, but it is known that China accounts for over 90 per cent of worldwide executions each year. In May 2003, Nepalese citizens Ishwori Kumar Shresthra and Rabi Dahal were sentenced to death in Tibet after being found with 29.85 kilograms of drugs. They each claimed that the contraband was not theirs, and that they had been holding them for a friend. Neither of their families received information from the Chinese government about the sentence and were forced to find out through newspaper coverage. Although the two men were given a lawyer by the state, there was no indication that an interpreter was provided or that the two men were able to understand the charges brought against them.44 Nepalese human rights organizations and the government of Nepal vehemently opposed the decision, calling the Chinese judicial process into question and objecting to the use of the death penalty in a drug trafficking case. As of 2004, an appeals trial was underway and the Chinese Embassy in Kathmandu assured Nepal that the Chinese court system would make a proper decision in the case.45
Iran Iran is strategically located along drug-trafficking routes connecting Europe and Asia, and faces a significant drug-transit problem. While Pakistan and Iran have signed
44
Amnesty International, “Death Penalty/Imminent Execution: China, Ishwori Kumar Shrestha/Rabi Dahal, Nepalese citizens,” Amnesty International, http://web.amnesty.org/library/print/ENGASA170332004 (accessed January 29, 2006). 45 “Chinese Embassy Says Second Trial Underway for Death Sentence Nepalis,” BBC Worldwide Monitoring, July 15, 2004, Lexis-Nexis, http://web.lexis-nexis.com.
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bilateral treaties pledging to curb the drug trade, there are still many drug-related problems in the area.46 In Iran, the issue of executing foreign nationals is complicated because it often involves children. Thirteen year old Pakistani Azizullah Shenwari, who stated that he had been kidnapped and brought to Iran to work in a factory, was sentenced to death in 2001 as a result of drug trafficking charges. This action highlighted not only the issue of applying the death penalty to foreign nationals, but also the problems associated with human trafficking and the execution of minors. Under international treaties, which Iran has signed, applying the death penalty to individuals under the age of eighteen is prohibited.47 As a result, the international community, including human rights groups such as Amnesty International, continues to place pressure on Iran to amend its policies.
Saudi Arabia Saudi Arabia uses the death penalty for many non-violent crimes, including drug dealing, and most trials in Saudi Arabia are closed to the public. Defendants are typically not given representation quickly enough to prepare a suitable defense, and are often convicted based solely upon coerced testimony. Between 1990 and 1999, half of the 766 people executed in Saudi Arabia were migrant workers or foreign nationals. While most were of Asian descent, seventy-two hailed from Nigeria, most of whom were executed for drug related offenses or armed robbery.48
Some two-thirds of the fifty people
executed between January and June 2005 in Saudi Arabia were foreign nationals.49 Most of the foreign nationals, their families, and their governments have no idea that they have been sentenced to die by Saudi courts until the day of the execution. Despite the secret
46
Aamir Shah, “Boy, 14, Sentenced to Death in Iran,” United Press International, June 14, 2001, Lexis-Nexis, http://web.lexis-nexis.com 47 Amnesty International, “Death Penalty: Iran, Azizullah Shenwari, Pakistani National,” Amnesty International, http://web.amnesty.org/library/print/ENGMDE130192001 (accessed January 29, 2006). 48 Amnesty International, “Saudi Arabia Execution of Nigerian Men and Women,” Amnesty International, http://web.amnesty.org/library/print/ENGMDE230492000 (accessed January 29, 2006). 49 Cara Anna, “Death Divide – Capital Punishment Faces a Fresh Round of Global Security,” The Atlanta Journal Constitution, August 28, 2005, Lexis-Nexis, http://web.lexis-nexis.com.
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nature of the trials, executions also performed in public, generally by beheading or a firing squad.
Current Status As of February 2006, eighty-eight states have abolished the death penalty while ten have removed the death penalty as punishment for ordinary crimes. Additionally, thirty-seven states are de facto abolitionist, meaning that they have not removed capital punishment from the law but do not execute people. Five states have a moratorium in place regarding the death penalty, and will not execute criminals pending further investigation into the morality and legality of capital punishment. Two states, Liberia and Mexico, abolished the death penalty in 2005. Only fifty-five states currently use the death penalty. Of those, twelve liberal democratic states maintain capital punishment: the Bahamas, Botswana, Guyana, India, Japan, Mongolia, Philippines, Saint Kitts and Nevis, South Korea, Taiwan, Thailand, and the United States.50
Within those states that
continue to use capital punishment, some, such as China, use it quite often. Others, such as Israel, use it sparingly, and for only the most heinous crimes. The total number of executions throughout the world decreased from 5,611 in 2003 to 5,530 in 2004, with China accounting for at least 5,000 of those executions. Many African nations abolished the death penalty, while Belarus and Turkey remain the only European nations using capital punishment.51 The move towards abolitionism is not a universal trend, however, as some states that have undone former decisions not to use capital punishment. Lebanon, Afghanistan, India, and Indonesia each interrupted periods of at least five years without an execution to carry out a death sentence in 2004. It remains unclear if this signals a permanent return to use of the death penalty or just a particularly heinous set of circumstances that required this form of penalty. Perhaps more disturbingly, 2005 saw a slight increase in the number of children executed, from
50 51
Amnesty International, “Facts and Figures on the Death Penalty.� Hood, 27.
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four to eight, all of whom were executed by Iran.52 It is important to note, however, that the number of states that execute children has diminished in recent years, due largely to the Convention on the Rights of the Child. A decision of the U.S. Supreme Court in March 2005 cited international pressure and evolving standards of decency as the primary rationale for declaring the execution of individuals under age eighteen unconstitutional. The decision made the United States the last state to abolish the practice.53 The United Nations is continuing its effort to gather information regarding the death penalty and is urging states to eliminate, or at least reform, the use of capital punishment. A 2005 resolution sponsored by the European Union, the same resolution the General Assembly has passed every year since 1997, was signed by a record eightyone nations. It again called for abolition of the death penalty and encouraged retentionist states to adhere to international restrictions and agreements concerning capital punishment. The resolution stated that abolition is essential to protect the affirmed right to life, the closest the United Nations has ever come to declaring capital punishment a human rights violation. The UN has also reaffirmed its desire to eliminate mandatory death sentences and the execution of individuals for non-violent crimes. It also called for transparency and honest reporting of statistics concerning executions.54
Death Penalty and Foreign Nationals In March 2004, another case came before the International Court of Justice concerning execution of a foreign national.
The Mexican government brought suit
against the United States on behalf of one of its citizens, Jose Medellin, alleging that his rights under the Vienna Convention on Consular Relations had been violated. Before the dispute was ultimately settled, the case reached the United States Supreme Court, which body reached a decision that may have dangerous implications for future relations among states. 52
Amnesty International, “Execution of Child Offenders Since 1990,” Amnesty International, http://web.amnesty.org/pages/deathpenalty-children-stats-eng (accessed February 27, 2006). 53 Roper v. Simmons, 543 U.S. 551 (2005). 54 Amnesty International, “Death Penalty News: June 2005,” Amnesty International, http://web.amnesty.org/library/index/engact530022005\ (accessed February 27, 2006).
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The Case of Jose Medellin The case of Jose Medellin is perhaps the most high profile and controversial international dispute over the use of the death penalty for foreign nationals. In 1993, Medellin was accused of gang rape and murder Texas. Although he told authorities of his Mexican citizenship, his consulate was not informed of his detainment until he was on death row. Mexico took great exception to this fact, arguing that
Jose Medillin
the right to swift consular notification is vital to the protection of Mexican citizens so that they can be provided lawyers, translators, and investigators.55 The United States government responded that Mexico was attempting to interfere with America’s sovereign right to dispense justice.56 On 31 March 2004, in the Avena case concerning the rights of Mexican citizens on death row in the United States, the ICJ ordered a stay of execution of fifty-one Mexican nationals.57 The following year, a legal challenge was mounted on behalf of Medellin in the American courts. While lower federal courts blocked Medellin’s appeal for a stay of execution, in May 2005 the U.S. Supreme Court sent the case back to Texas for further consideration.58 The Court chose to avoid the issue of whether or not the United States is obligated to adhere to ICJ decisions. As a result, Mexico’s President Vicente Fox chose to cancel a diplomatic visit to the United States, portending future trouble in U.S.Mexican relations.59 On 7 March 2005, the Bush Administration unilaterally backed out of the VCCR, primarily due to its exception to the Optional Protocol requiring the acceptance of 55
Tony Mauro, “Supreme Court to Discuss International Court Ruling,” The Legal Intelligencer, November 23, 2004, Lexis-Nexis, http://web.lexis-nexis.com 56 Gretchen Peters, “Mexico’s Death Penalty Juncture,” Christian Science Monitor, February 7, 2003, Lexis-Nexis, http://web.lexis-nexis.com 57 Mexico v. United States of America, Case Concerning Avena and Other Mexican Nationals, 2004 31 March General List No. 128. 58 Medellin v. Dretke, 544 U.S. (2005). 59 Ginger Thompson, “Mexican President to Ask Oklahoma Governor to Halt Execution Next Week,” The New York Times, June 16, 2001, late edition. Lexis-Nexis, http://web.lexis-nexis.com
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jurisdiction from the ICJ.60 The contention the Bush Administration raises with the Convention is that it infringes on the sovereignty of the United States. America is not willing to accept the legitimacy of the Court or recognize its decisions as legally binding, and future cases arising from disputes over the rights of foreign nationals in the U.S. will not be heard by the ICJ.
Key Positions The controversial nature of the death penalty makes it difficult to examine by simply considering bloc views. It is necessary to examine the interests of not only states, but other organizations and bodies to determine the various stances on the issue.
Regional Positions North America Under federal law, the death penalty is legal in the United States; however, executions at the national level are rare. Individual states each have their own policies regarding the death penalty. Thirty-eight states maintain the death penalty while twelve have declared it illegal. In January 2006, New Jersey and Georgia placed moratoriums on the death penalty. The United States also maintains the right to use the death penalty as punishment for foreign nationals, and has done so repeatedly, mostly against Mexican nationals. In Canada, conversely, the death penalty was abolished as punishment for ordinary crimes in 1976, and was declared illegal for any crime in 1998.61 In addition, Canada law refuses extradition of alleged criminals for capital offenses for those who would be sent to a state that has not abolished the death penalty. No criminal has been executed in Mexico since 1937, and in 2005 capital punishment was abolished by constitutional amendment.62 Mexico has brought suit against the United States in the International Court of Justice to prevent the execution of Mexican citizens in the United States. 60
“U.S. Exits Protocol on Diplomat Rights,� The Times Union, March 10, 2005, Lexis Nexis, http://web.lexisnexis.com 61 Blaskovich, 78. 62 Peters.
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Europe The European Union is staunchly abolitionist, making abolition a precondition for becoming a member of the European Union.
Protocol No. 13 to the European
Convention on Human Rights explicitly bans the death penalty in all circumstances. The EU considers the death penalty a “punishment which…impairs the human dignity, increases the level of brutality, and provides no added value in terms of deterrence.”63 By December 2001 eight of the fourteen states that had previously made up the Soviet Union had abolished the death penalty.64 The European Union, like Mexico, has also taken exception to the United States’ use of the death penalty for foreign nationals. Germany successfully brought suit against the United States in the International Court of Justice on behalf of Walter and Karl LaGrand, German nationals executed by the U.S. The only nations in Europe that maintain capital punishment are Belarus and Turkey. The European Union has explicitly stated that it will not grant Turkey membership until it eliminates the death penalty.
Asia As of December 2005, the only states in Asia to abolish the death penalty were Cambodia, Nepal, East Timor, and Bhutan.65 Strong support for the death penalty is found in Pakistan, China, and Singapore. Asian states that retain the death penalty seem to do so because of cultural norms. Asia is also notorious for executing individuals for drug-related and economic crimes, a practice the UN opposes. However, some nations in Asia, such as South Korea, appear to be leaning towards abolition.
Although South Korea has not executed a criminal since 1997, capital
punishment remains legal. Seeing the potential for abolition, Amnesty International launched a yearlong campaign in South Korea in 2006 to end the practice officially.66 63
European Union, “Declaration by the Presidency on Behalf of the European Union to Mark the Entry into Force Of Protocol No. 13 to the European Convention on Human Rights, Concerning the Abolition of the Death Penalty in All Circumstances, European Union,” http://www.eurunion.org/legislat/DeathPenalty/EurHRConvProt13Dec1.htm (accessed January 30, 2006) 64 Hood, 131. 65 Bray. 66 Kwon Ji-young, “Amnesty International Targets Capital Punishment in Korea,” The Korea Herald, December
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Australia and many former colonial Pacific island nations are abolitionist.67 Australia also fought against the death penalty for foreign nationals in the case of Schapelle Corby. The government and media in Australia campaigned strenuously to ensure Corby was not executed, and were successful in earning her a life sentence.
Africa In 1965, every African state employed the death penalty; however, as of October 2004, ten states had abolished capital punishment and ten were de facto abolitionist.68 Egypt, the Sudan, and Somalia are the only African states that officially use capital punishment.69 The death penalty is also utilized in northern Nigeria where Islamic forces rule separately from the central government. Abolitionists acknowledge that it is difficult to gauge how many executions take place each year, as many African states avoid publicity by staging private executions.70 Other countries have similar trends of not officially
employing
the
death
penalty
but
still
carrying
out
executions.
The Supreme Court in South Africa declared that the death penalty fundamentally opposes the constitutionally granted right to life. Abolitionists in Sierra Leone are trying to bring a similar test case through their legal system.71
Latin America and the Caribbean Among Latin American states, the death penalty has generally been abolished for all crimes. The movement towards abolition began in 1978 with the Inter-American Convention on Human Rights, which prohibits any nation that has disallowed the death penalty from reinstating it.72 Although they had imposed a fifteen year moratorium on the practice, Guyana is the only Latin American state to recently execute someone. Guyana performed executions from 1985-1991, and then again starting in 1996. In the 21, 200, Lexis-Nexis, http://web.lexis-nexis.com 67 Hood, 43. 68 Marc Lacey, “Foes of Death Penalty Making Gradual Gains in Africa,” The New York Times, October 20, 2004, Lexis-Nexis, http://web.lexis-nexis.com. 69 Schreinemecher. 70 Lacey. 71 Melron C. Nico Wilson, “Legal Challenges to the Death Penalty in Africa,” Concord Times, October 18, 2005, Lexis-Nexis, http://web.lexis-nexis.com 72 Drinan, 132.
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Caribbean, the trend seems to be that capital punishment is abolished in a de facto thereby not invalidating the practice in the future.73
Middle East Policy regarding the death penalty in the Middle East tends to vary based on the predominant religion in a nation. In Israel, the death penalty is only applied for crimes against humanity, such as the execution of Nazi war criminals, and for treason in time of war. Yet, with the exception of Israel, the general trend in the region is an increase in support for the death penalty. Saudi Arabia, Iran, and other Islamic societies execute large numbers of individuals each year.74 Fourteen states have expanded the list of crimes punishable by the death penalty since 1989 to include offenses such as production and trafficking of drugs, sexual transgressions, and economic crimes.75 In 2002, Iran decided to ban stoning as an acceptable form of the death penalty. The move may be motivated by a desire to improve trade relations with the European Union, but it is nevertheless a step toward abolishing capital punishment in the Islamic world.76 While the region has seen reform of capital punishment, the practice can still be exceptionally brutal and cruel in some cases. Iran’s 2005 execution of Mohammad Bijeh, the ‘Vampire of the Desert,’ consisted of whipping the man more than one-hundred times until he finally died.77
Non-Governmental Organizations The majority of Non-Governmental Organizations (NGOs) take an abolitionist stance with regard to the death penalty, and both Amnesty International and Human Rights Watch seek to eliminate capital punishment throughout the world. Amnesty International’s official position is that:
73
Hood, 59. Blaskovich , 26. 75 Hood, 38. 76 “Iran Leaves the Stone Age,” The New York Post, December 28, 2002, Lexis-Nexis, http://web.lexis-nexis.com 77 Derek Rose, “Justice Iranian Style: ‘Vampire of the Desert’ Convicted of Raping, Killing 17 Children,” New York Daily News, March 23, 2005, Lexis-Nexis, http://web.lexis.nexis.com. 74
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the death penalty is the ultimate cruel, inhuman, and degrading punishment. It violates the right to life. It is irrevocable and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments.78
Human Rights Watch also argues that capital punishment is cruel and inhumane. The organization believes that “the intrinsic fallibility of all criminal justice systems assures that even when full due process of law is respected, innocent persons may be executed.”79 NGOs have also been instrumental in publicizing key issues dealing with capital punishment and have sought reform of the death penalty within those states that retain the practice. Moreover, they advocate adherence to the Vienna Convention on Consular Rights to protect the rights of foreign nationals and have publicly lobbied for stays of execution for most foreign nationals facing a death sentence.
Media Positions Media coverage of capital punishment in the eastern and western world varies. While the media in the United States is split on the morality of the death penalty, European coverage of the death penalty is more abolitionist in nature. Eastern media coverage of the issue is more difficult to ascertain, as closed societies often prohibit free discussion of internal policies.
Public Opinion It is becoming increasingly important to consider public opinion, as many nations have either abolished or maintained the death penalty based primarily upon public sentiment. Although the extent to which public opinion matters obviously varies with each state, it is important to understand how a state’s citizens feel about capital punishment.80
78
Amnesty International, “Facts and Figures on the Death Penalty.” Human Rights Watch, “The Death Penalty in the United States of America,” Human Rights Watch, http://hrw.org/campaigns/deathpenalty/ (accessed February 27, 2006). 80 Hood, 233. 79
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North America In October 2005, 64 per cent of Americans favored the death penalty, marking the lowest level of support in twenty-seven years.81 Public support wanes further when life imprisonment is offered as an alternative punishment.82
While the government of
Mexico continues to pressure the United States to end capital punishment, Mexico’s citizens have increasingly clamored for reinstatement of the death penalty due to the high level of violent crime. A 2003 survey conducted by phone and Internet showed that 70 per cent of Mexican citizens supported a public referendum to make certain violent crimes punishable by death. Canadian citizens are generally evenly split on the issue of the death penalty.83
Europe While the majority of citizens in Western Europe oppose the use of the death penalty, between 65 and 90 per cent of citizens in the former Soviet bloc support its use. In some European nations, public opinion directly correlates with capital punishment policy. In Germany, for example, there was a steep decline in support for the death penalty in the 1970s and 1980s which led to its abolition in 1987.84 Conversely, while Great Britain is an abolitionist state, a majority of its population actually favors the death penalty. Fifty-five per cent of its citizens favor capital punishment, with only forty-one per cent opposed.85
Asia Although it is not certain to what extent public opinion polls conducted in Asia are accurate, public sentiment seems to support the death penalty as an effective tool of justice. In Japan, for example, none of the thirty-four polls conducted over the last forty-
81
Eullia Iglesias, “Rights – U.S. Death Penalty Foes Denounce 1,000th Execution,” Global Information Network, December 1, 2005, Lexis-Nexis, http://web.lexis-nexis.com 82 Anna. 83 Dennis Welch, “Support for the Death Penalty: U.S., Britain, Canada,” Gallup Poll Tuesday Briefing, March 16, 2004. Lexis-Nexis, http://web.lexis-nexis.com 84 Blaskovich, 37. 85 Welch.
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five years has shown that a majority of citizens oppose capital punishment.86 A 2001 poll demonstrated that 63 per cent of Asians favor the death penalty while only 21 per cent oppose its use.87
Africa In Africa, abolition has been accompanied by a rise in sentiment against capital punishment. Africans are calling the legitimacy of the practice into question, as more and more people who have been executed are being exonerated after their death. Also, there have been questions raised about the effectiveness of the death penalty as a deterrent to crime.88
Latin America The Millennium study prepared by Gallup International showed that, along with Western Europe, Latin America was the only other area of the world in which a majority of citizens opposed the death penalty. Only 37 per cent of Latin Americans favored capital punishment, whereas 55 per cent favored abolition.89
Middle East In the Middle East, citizens generally lack the ability to speak out against the use of the death penalty, but some opinions are known. While Israelis support the use of the death penalty only as punishment for Nazi war criminals, many Muslims adhere to the traditional government view that Islam allows for capital punishment, resulting in no abolition movement among these nations. In Saudi Arabia, Egypt, and Iraq, expressing opposition to the death penalty is unfathomable. Executions are viewed as vital to maintaining order and stability in these states.90
86
Anna. Blaskovich, 38. 88 Death Penalty Information Center, “International News and Developments,� Death Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?scid=30&did=934 (accessed January 28, 2006). 89 Blaskovich, 38. 90 Hood, 38. 87
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Major Religious Viewpoints Islamic groups believe their religion sanctions capital punishment to set an example for others or to provide retribution for those close to the victim of a crime. In 1994, a Sudanese delegate to the United Nations stated: “Capital punishment is a divine right of some religions. It is embodied in Islam and these views must be respected.”91 Conversely, though, for years the Catholic Church supported the death penalty, recent developments show a shift in opinion. In 1999, Pope John Paul II spoke out against capital punishment, declaring it “cruel and unusual.” The United States Conference of Catholic Bishops likewise issued a report advocating abolition, arguing that that regardless of the severity of the crime, alternative punishments that do not deprive individuals of the right to life are preferable.92 Reform and Orthodox Jewish groups have also campaigned against the death penalty as immoral and cruel. They decry the fact that innocent people are put to death for crimes that they did not commit.93 Buddhism, a religion based on peace and pacifism, has also declared itself opposed to the death penalty. In a speech at Rutgers University in September 2005, the spiritual leader of Buddhism, the Dalai Lama, condemned capital punishment.94
91
Ibid, 37. Jeff Jacoby, “Protecting Life by Taking it Away,” The Boston Globe, December 11, 2005. Lexis-Nexis, http://web.lexis-nexis.com 93 Hood, 69. 94 John Chadwick, “The Dalai Lama’s Vision: A World Without War,” The Herald News, September 26, 2005, Lexis-Nexis, http://web.lexis-nexis.com. 92
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Summary The debate over the death penalty encompasses issues of morality, however the more important issue in global relations addresses the question of the legality of capital punishment under international law. States are forced to balance the need to dispense justice with calls to respect human rights. The issue is complicated further because capital punishment inherently involves an individual’s right to life. Abolitionist states believe that the death penalty is inhumane and illegal, and have been successful in urging states that maintain capital punishment to reform the practice and limit its use. Retentionist states, on the other hand, feel that the death penalty is a legal, morally acceptable deterrent to crime, and that sovereignty precludes the international community from preventing the use of the death penalty within their state. While the arguments for and against the death penalty have remained largely consistent over the years, there is a new emphasis on human rights. Since its inception, the United Nations has been instrumental in steadily abolishing capital punishment. The UN has helped create restrictions on capital punishment in retentionist states to protect certain groups.
The Geneva Conventions, the International Covenant on Civil and
Political Rights, and the Universal Declaration of Human Rights have all been used by abolitionists to push for elimination of the death penalty. Although retentionist states argue that the death penalty provides them with a strong criminal justice system that deters crime, the prevailing trend in the international community seems to be towards abolition, or at least reform. The issue of the death penalty and foreign nationals is also extremely pressing and again raises moral and legal questions. Disputes between states over the right to execute citizens of another nation have led to hostility and battles in international court. Tensions have also flared due to perceived human rights violations. The International Court of Justice demonstrated in the Avena case that states must respect the due process rights provided foreign nationals under the Vienna Convention on Consular Relations (VCCR).
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Discussion Questions • What is your state’s position on the death penalty? What are the moral and/or legal decisions that led your state to take the position it has? • What is your position on the death penalty as it relates to foreign nationals? Has your state either executed a foreign national or had one of its citizens executed abroad? If so, have there been any repercussions? • What international protocols has your state signed? obligations?
Does your state fulfill its
• Is the death penalty an effective deterrent to crime? • If universal abolition is desirable, what can be done in the international community to achieve this end while simultaneously respecting national sovereignty? • Is there an inherent bias in the death penalty towards certain groups? Is there a way to rectify this situation? • If your state believes that the international community should work further to protect the rights of individuals facing the death penalty, how can this be done? Do any additional groups require added protection? • What are the possible alternatives to the death penalty? Are these of punishments more moral? Are they more effective than the death penalty? • What are the possible ramifications of states failing to adhere to the procedure outlined in the Vienna Convention on Consular Rights regarding rights of foreign nationals? What can be done to encourage respect of these rights? • Will the decision of the International Court of Justice in the Avena case change the nature of the debate concerning the death penalty and foreign nationals? If so, how?
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Works Cited Abbugao, Martin. “Singapore Activists Face Uphill Battle to Abolish Death Penalty.” Agence France Presse, December 4, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Amnesty International, “Death Penalty/Fear of Imminent Execution: Indonesia, Ayodhya Prasad Chaubey, Indian National,” Amnesty International, http://web.amnesty.org/library/print/ENGASA210212004. Amnesty International, “Death Penalty/Imminent Execution: China, Ishwori Kumar Shrestha/Rabi Dahal, Nepalese citizens,” Amnesty International, http://web.amnesty.org/library/print/ENGASA170332004. Amnesty International, “Death Penalty: Iran, Azizullah Shenwari, Pakistani National,” Amnesty International, http://web.amnesty.org/library/print/ENGMDE130192001. Amnesty International, “Death Penalty News: June 2005,” Amnesty International, http://web.amnesty.org/library/index/engact530022005 Amnesty International, “Execution of Child Offenders Since 1990,” Amnesty International, http://web.amnesty.org/pages/deathpenalty-children-stats-eng Amnesty International, “Facts and Figures on the Death Penalty,” Amnesty International, http://web.amnesty.org/pages/deathpenalty-facts-eng Amnesty International, “Saudi Arabia Execution of Nigerian Men and Women,” Amnesty International, http://web.amnesty.org/library/print/ENGMDE230492000. Amnesty International, “United States of America – Adding Insult to Injury: The Case of Joseph Stanley Faulder,” Amnesty International, http://web.amnesty.ord/library/print/ENGAMR510861998. Amnesty International, “USA: Time to End Double Standards and Respect the Consular Rights of Foreign Nationals Facing the Death Penalty,” Amnesty International, http://web.amnesty.org/library/print/ENGAMR511192001.
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Amon, Elizabeth. “A Treaty That Binds in the Hudson Local Case Tests Effect of Vienna Convention’s Edict: That Arrested Foreign National Has the Right to Call His Consulate.” New Jersey Law Journal, April 20, 1998. Lexis-Nexis. http://web.lexis-nexis.com. Anckar, Carsten. Determinants of the Death Penalty: A Comparative Study of the World. New York: Routledge, 2004. Anna, Cara. “Death Divide – Capital Punishment Faces a Fresh Round of Global Security.” The Atlanta Journal-Constitution, August 28, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Blaskovich, Dagny A. and Rita J. Simon. A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over. New York: Lexington Books, 2002. Bray, Marion. “Asia’s Grim View on Drug Crime: Death Penalty Record Underscores Region’s Tough Policies.” CNN Online, December 3, 2005. http://www.cnn.com/2005/WORLD/asiapcf/12/01/execution/index.html. Bunce, Jane. “Worldwide Campaign to Save Death-Row Australian Drug Mule.” Australian Associated Press, October 26, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Chadwick, John. “The Dalai Lama’s Vision: A World Without War.” The Herald News, September 26, 2005. Lexis-Nexis, http://web.lexis-nexis.com. “Chinese Embassy Says Second Trial Underway for Death Sentence Nepalis.” BBC Worldwide Monitoring, July 15, 2004. Lexis-Nexis, http://web.lexis-nexis.com. Death Penalty Information Center, “International News and Developments,” Death Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?scid=30&did=934. Drinan, Robert F. The Mobilization of Shame: A World View of Human Rights. New Haven: Yale University Press, 2001.
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European Union, “Declaration by the Presidency on Behalf of the European Union to Mark the Entry into Force of Protocol No. 13 to the European Convention on Human Rights, Concerning the Abolition of the Death Penalty in all Circumstances, European Union,” http://www.eurunion.org/legislat/DeathPenalty/EurHRConvProt13Dec1.htm European Union, “Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty,” European Union, http://www.eurunion.org/legislat/DeathPenalty/Prot2CivPolRts.htm Gaie, Joseph B.R. The Ethics of Medical Involvement in Capital Punishment, a Philosophical Discussion. Boston: Kluwer Academic Publishers, 2004. Hood, Roger. The Death Penalty: A Worldwide Perspective. Oxford: Oxford University Press, 2002. Human Rights Watch, “The Death Penalty in the United States of America,” Human Rights Watch, http://hrw.org/campaigns/deathpenalty/ Iglesias, Eullia. “Rights – U.S. Death Penalty Foes Denounce 1,000th Execution.” Global Information Network, December 1, 2005. Lexis-Nexis, http://web.lexis-nexis.com. “Indian Executed In Indonesia for Drug Trafficking.” The Nation, August 5, 2004. Lexis-Nexis, http://web.lexis-nexis.com. “Iran Leaves the Stone Age.” The New York Post, December 28, 2002. Lexis-Nexis, http://web.lexis-nexis.com. Jacoby, Jeff. “Protecting Life by Taking it Away.” The Boston Globe, December 11, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Ji-young, Kwon. “Amnesty International Targets Capital Punishment in Korea.” The Korea Herald, December 21, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Koppel, Naomi. “Amnesty International: Executions Around the World Doubled Last Year.” The Associated Press, April 9, 2002. Lexis-Nexis, http://web.lexis-nexis.com.
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Kremmer, Janaki. “Drug Case Tests Improved Indonesia-Australia Ties.” Christian Science Monitor, May 26, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Lacey, Marc. “Foes of Death Penalty Making Gradual Gains in Africa.” The New York Times, October 20, 2004. Lexis-Nexis, http://web.lexis-nexis.com. Leavitt, Noah. “Mexican Standoff.” Slate Magazine, December 14, 2005. Lexis-Nexis. http://web.lexis-nexis.com. Mathur, Monika. “Capital Punishment in the United States at a Glance.” Associated Press Worldstream, November 23, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Mauro, Tony. “Supreme Court to Discuss International Court Ruling.” The Legal Intelligencer, November 23, 2004. Lexis-Nexis, http://web.lexis-nexis.com Medellin v. Dretke, 544 U.S. __ (2005). Mexico v. United States of America, Case Concerning Avena and Other Mexican Nationals, 2004 31 March General List No. 128. Peters, Gretchen. “Mexico’s Death Penalty Juncture.” Christian Science Monitor, February 7, 2003. Lexis-Nexis, http://web.lexis-nexis.com. Roper v. Simmons, 543 U.S. 551 (2005). Rose, Derek. “Justice Iranian Style: ‘Vampire of the Desert’ Convicted of Raping, Killing 17 Children.” New York Daily News, March 23, 2005. Lexis-Nexis, http://web.lexis.nexis.com. Schreinemecher, Elisabeth. “Rights: Report Shows Momentum Builds Against Death Penalty.” Inter Press Service, October 20, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Shah, Aamir. “Boy, 14, Sentenced to Death in Iran.” United Press International, June 14, 2001. Lexis-Nexis, http://web.lexis-nexis.com.
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Simons, Marlise. “World Court Finds U.S. Violated Consular Rights of 2 Germans.” The New York Times, June 28, 2001, late edition. Lexis-Nexis, http://web.lexis-nexis.com. Stout, David. “Clemency Denied, Paraguayan is Executed.” The New York Times, April 15, 1998, The New York Times. Lexis-Nexis, http://web.lexis-nexis.com. Thompson, Ginger. “Mexican President to Ask Oklahoma Governor to Halt Execution Next Week.” The New York Times, June 16, 2001, late edition. Lexis-Nexis, http://web.lexis-nexis.com. United Nations, “Universal Declaration of Human Rights,” United Nations, http://www.un.org/Overview/rights.html United Nations High Commission on Human Rights, “Question of the Death Penalty,” United Nations High Commission on Human Rights, http://www.unhchr.ch. U.S. Department of State, “Consular Notification and Access, Part 5: Legal Material,” U.S. Department of State, http://www.travel.state.gov/law/consular/consular_744.html. “U.S. Exits Protocol on Diplomat Rights.” The Times Union, March 10, 2005. LexisNexis, http://web.lexis-nexis.com. “The Vienna Convention on Consular Relations and Optional Protocols,” Texas Secretary of State Roger Williams. http://www.sos.state.tx.us/border/intlprotocol/vienna.shtml. Welch, Dennis. “Support for the Death Penalty: U.S., Britain, Canada.” Gallup Poll Tuesday Briefing, March 16, 2004. Lexis-Nexis. http://web.lexis-nexis.com. Whitaker, Barbara. “Texas Executes Canadian Killer Despite International Pleas.” The New York Times, June 18, 1999. Lexis-Nexis. http://web.lexis-nexis.com. Wilson, Melron C. Nicol. “Legal Challenges to the Death Penalty in Africa.” Concord Times, October 18, 2005. Lexis-Nexis, http://web.lexis-nexis.com.
Rutgers Model United Nations 2006 Ying-Jen, Lo. Human Rights Litigation Promoting International Law in U.S. Courts. New York: LFB Scholarly Publishing LLC, 2005.
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Works Referenced Allen, John L., Jr. “U.S. Allies See Death Penalty as Fascist Relic.” National Catholic Reporter, January 19, 2001. Academic Search Premier, http://www.libraries.rutgers.edu. Amnesty International, “Death Penalty/Imminent Execution: Singapore, Natthapong Khwan-on, Thai National,” Amnesty International, http://web.amnesty.org/library/print/ENGASA360032002. Amnesty International, “United States of America: A Time for Action – Protecting the Consular Rights of Foreign Nationals Facing the Death Penalty,” Amnesty International, http://web.amnesty.org/library/print/ENGAMR511062001. Atwell, Mary Welek. Evolving Standards of Decency: Popular Culture and Capital Punishment. New York: Peter Lang Publishing, 2004. Axtman, Kris. “U.S. Death Penalty Creates International Snarl.” Christian Science Monitor, February 24, 2003. Lexis-Nexis, http://web.lexis-nexis.com. Banner, Stuart. The Death Penalty: An American History. Cambridge: Harvard University Press, 2002. Berns, Walter. For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books, Inc., 1979. Bonner, Raymond. “U.S. Bid to Execute Mexican Draws Fire.” The New York Times, October 30, 2000, late edition. Lexis-Nexis, http://web.lexis-nexis.com. Boulanger, Christian and Austin Sarat, ed. The Cultural Lives of Capital Punishment: Comparative Perspectives. Stanford: Stanford University Press, 1995. Delaney, Gil. “Texas Plans to Execute Killer of Country Native; Victim’s Sister Says Family Backs Death Penalty, But Will Not Attend.” Intelligencer Journal, June 18, 1997. Lexis-Nexis, http://web.lexis-nexis.com.
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Dillon, Sam. “Mexico Reacts Bitterly to Execution of One of Its Citizens in Texas.” The New York Times, June 20, 1997, late edition. Lexis-Nexis, http://web.lexis-nexis.com. “EU Statement to Mark the 1000th Execution in the U.S. Since the Reinstatement of the Death Penalty.” Government News Network, December 2, 2005. Lexis-Nexis, http://web.lexis-nexis.com. European Union, “Commission on Human Rights Resolution 1999/61,” European Union, http://www.eurunion.org/legislat/DeathPenalty/UN55Res1999.htm. European Union, “EU Memorandum on the Death Penalty,” European Union, http://www.eurunion.org/legislat/DeathPenalty/eumemorandum.htm. European Union, “Geneva Convention Relative to the Protection of Civilian Persons in Time of War,” European Union, http://www.eurunion.org/legislat/DeathPenalty/UNGenevaConv.htm. European Union, “No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, as Amended by Protocol No. 11,” European Union, http://www.eurunion.org/legislat/DeathPenalty/CounEurProto6.htm. European Union, “Protocol to the American Convention on Human Rights to Abolish the Death Penalty,” European Union, http://www.eurunion.org/legislat/DeathPenalty/oasdeath.htm. European Union, “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,” European Union, http://www.eurunion.org/legislat/DeathPenalty/UNSafegrds.htm. “Germans Assail U.S. Executions.” Pittsburgh Post-Gazette, November 14, 2000, Sooner Edition. Lexis-Nexis, http://web.lexis-nexis.com. Greenhouse, Linda. “Court Weighs Execution of Foreigner.” The New York Times, April 14, 1998, late edition. Lexis-Nexis. http://web.lexis-nexis.com. Greenhouse, Linda. “Justices Drop Capital Case Ruled On By World Court.” The New York Times, May 24, 2005, late edition. Lexis-Nexis. http://web.lexis-nexis.com.
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Haney, Craig. Death by Design: Capital Punishment as a Social Psychological System. Oxford: University Press, 2005. Holland, Gina. “Supreme Court Wades Into International Death Penalty Debate.” The Associated Press, December 10, 2004. Lexis-Nexis, http://web.lexis-nexis.com. Liptak, Adam. “Mexico Awaits Hague Ruling on Citizens on Death Row.” The New York Times, January 16, 2004, late edition. Lexis-Nexis, http://web.lexis-nexis.com. Mandel, A.V. Capital Punishment: Issues and Perspectives. New York: Nova Science Publishers, Inc., 2002. Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004). Shin, Kilman. Death Penalty and Crime: Empirical Studies. George Mason University: Center for Economic Analysis, 1978. Smith, T. Alexander and Raymond Tatalovich. Cultures at War: Moral Conflicts in Western Democracies. Orchard Park: Broadview, 2003. “State Dept. Asks Texas to Review Capital Case.” The New York Times, November 8, 2000, late edition. Lexis-Nexis, http://web.lexis-nexis.com. Stout, David. “The Nation: Do As We Say, Not As We Do; U.S. Executions Draw Scorn from Abroad.” The New York Times, April 26, 1998, late edition. LexisNexis, http://web.lexis-nexis.com. Truskett, John Paul. “The Death Penalty, International Law, and Human Rights.” Tulsa Journal of Comparative and International Law, 11 Tulsa J. Comp & Int’l L, 557. Lexis-Nexis. http://web.lexis.nexis.com “U.N. Panel Votes for Ban on Death Penalty.” The New York Times, April 29, 1999, late edition. Lexis-Nexis, http://web.lexis-nexis.com. Valier, Claire. Crime and Punishment in Contemporary Culture. New York: Routledge, 2004.
Rutgers Model United Nations 2006 Verhovek, Sam Howe. “U.S. Renews Campaign to Safeguard Rights of Foreign Citizens.” The New York Times, November 30, 1997, late edition. Lexis-Nexis, http://web.lexis-nexis.com.
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