The Politics of the Death Penalty in Countries in Transition

Madoka Futamura, Nadia Bernaz

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134066780
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The increase in the number of countries that have abolished the death penalty since the end of the Second World War shows a steady trend towards worldwide abolition of capital punishment. This book focuses on the political and legal issues raised by the death penalty in "countries in transition", understood as countries that have transitioned or are transitioning from conflict to peace, or from authoritarianism to democracy. In such countries, the politics that surround retaining or abolishing the death penalty are embedded in complex state-building processes.

In this context, Madoka Futamura and Nadia Bernaz bring together the work of leading researchers of international law, human rights, transitional justice, and international politics in order to explore the social, political and legal factors that shape decisions on the death penalty, whether this leads to its abolition, reinstatement or perpetuation.

Covering a diverse range of transitional processes in Asia, Africa, Latin America, Europe, and the Middle East, The Politics of the Death Penalty in Countries in Transition offers a broad evaluation of countries whose death penalty policies have rarely been studied. The book would be useful to human rights researchers and international lawyers, in demonstrating how transition and transformation, 'provide the catalyst for several of interrelated developments of which one is the reduction and elimination of capital punishment'.

1Introduction

Madoka Futamura and Nadia Bernaz

The increase in the number of countries that have abolished the death penalty since the end of the Second World War shows a steady trend towards worldwide abolition of the death penalty. The abolitionist trend gained momentum in the 1980s, during which 11 countries abolished the death penalty for all crimes. The trend reached a peak in the 1990s, during which 34 countries abolished the death penalty for all crimes, and five countries for ordinary crimes. The trend continued into the twenty-first century and during the first decade, 22 countries abolished the death penalty for all crimes, followed by two more countries during the period between 2010 and 2012. The total number of abolitionist states amounts to 97 as of January 2013.¹ Several factors may explain this trend. One factor often referred to is the development of international human rights norms; however, this volume is interested in another factor, namely the increase in the number of countries going through political and social transitions.

The issue of the death penalty, especially its abolition, has been extensively debated, and approached in relation to human rights. The death penalty is increasingly viewed as a violation of basic rights and as an affront to human dignity, and as such, it needs to be abolished. Indeed, the abolitionist movement is closely related to the development of human rights norms and international human rights concerns.² Initial focus is put on every human being's inherent ‘right to life’, which is set forth in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights.³ The UN General Assembly Resolution 2857 (1971) on capital punishment stated that:

in order fully to guarantee the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.⁴

In December 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, which expressed a belief that ‘abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights’. The protocol became a real mile-stone for the international abolitionist movement. In addition to the emphasis on the right to life, the human rights approach is also concerned about the ways in which the death penalty is imposed – following an unfair trial, involving the infliction of unnecessary sufferings, or being imposed against children, pregnant women or the aged.

Outside the UN system, the Council of Europe and the European Union have been endorsing the abolition of the death penalty and expressing their belief that abolition would contribute to the promotion and protection of human rights. In 1973, the issue of the abolition of the death penalty was tabled at the Parliamentary Assembly of the Council of Europe, which gradually led to Protocol 6 to the European Convention on Human Rights concerning the abolition of the death penalty, adopted in 1983. Ever since, their position that the death penalty is a violation of fundamental human rights has been clearly stated. The European Union has been strongly committed to the worldwide abolition of the death penalty through diplomatic measures.⁵

The abolitionist trend observed since the 1980s seems to show that the human rights approach to justify the abolition of the death penalty has been credible and successful. The worldwide abolitionist movement has been closely tied to the development of human rights norms, and both trends accelerated further in the 1990s. Roger Hood and Carolyn Hoyle point out that the human rights approach has ‘further “internationalized” what was formerly considered an issue solely for national policy’.⁶ Indeed, in 1994, the Parliamentary Assembly of the Council of Europe formally proclaimed that ‘the willingness to ratify the protocol be made a prerequisite for membership of the Council of Europe’.⁷ In 1998, the European Union followed the Council of Europe and made the abolition of the death penalty a precondition for its membership. Death penalty policies in the countries of the former Soviet bloc in Eastern Europe and of the former Soviet Union, who were willing to become members of the European Union, were certainly impacted by such a precondition.⁸ While the role of NGOs and civil society ‘in defining the death penalty as a human rights issue and in lobbying for its abolition worldwide’ needs to be highlighted,⁹ their activities were in turn endorsed by ‘the moral force propelling the abolitionist movement’ that has been added to by the human rights perspectives.¹⁰

However, the international campaign based on the human rights perspectives has faced objections and challenges. One such challenge is the traditional argument of state sovereignty. In February 2009, the permanent missions of 53 member States of the United Nations submitted a note verbale, expressing objection to any attempt to impose a moratorium on the application of the death penalty or its abolition. Referring to Article 2(7) of the UN Charter, it stated: ‘Every State has an inalienable right to choose its political, economic, social, cultural and legal justice systems, without interference in any form by another State’.¹¹ What is more, the note verbale emphasized that the death penalty is not a human rights issue but has to do with each country's judicial system:

it is first and foremost an issue of the criminal justice system and an important deterring element vis-à-vis the most serious crimes. It must therefore be viewed from a much broader perspective and weighed against the rights of the victims and the right of the community to live in peace and security.¹²

The fact that countries like the United States and Japan, who support other human rights norms, retain the death penalty with no immediate prospect for abolition, may imply that it is necessary to go beyond the human rights approach in order to understand the issues lying behind death penalty policies.

Death penalty policies are not merely shaped by human rights considerations but also by political, social and cultural factors, which need to be taken into consideration. Austin Sarat and Christian Boulanger led comparative cultural analyses on how the death penalty is perceived in different countries and regions, and argue that countries often determine their policy on the death penalty based on social, political and economic concerns. They emphasize the importance of going beyond the traditional approach linking the issue of the death penalty to human rights or democracy.¹³ At the same time, as Sarat and Boulanger suggest, cultural and religious factors are important but cannot fully explain by themselves why the death penalty is abolished or retained in each country. Eric Neumayer concludes, based on his quantitative cross-national analysis from 1950 to 2002, that social, cultural and economic factors are not at all significant to the abolition of the death penalty, suggesting that the global trend towards abolition is mainly politically determined. Among such political factors, he suggested that democracy and democratization were the major ones.¹⁴

The abolitionist trend since the 1980s progressed hand in hand not only with the development of international human rights norms, but also with the wave of democratization in countries in Latin America in the 1980s, and in the former Soviet bloc in the 1990s. The fact that altogether 12 countries such as Slovenia, Romania, Hungary and the Czech Republic and Slovakia, abolished the death penalty in 1989 and 1990 suggests that democratization – not necessarily democracy – influences the abolitionist trend. What is more, the abolitionist trend in Eastern Europe and in the former Soviet Union cannot be understood purely as the direct result of human rights norms; these countries clearly had political and economic motivations for membership to the European Union, which made abolition a condition for membership.¹⁵ In this context of democratization, death penalty policies became a matter not purely of human rights but also of pragmatic and political concerns related to transitional agendas: restoring order and security, securing legitimacy, achieving justice and rebuilding a governance structure. How do these agendas impact on the way a new government envisages the death penalty, and how do death penalty policies relate to these agendas? Sometimes abolishing the death penalty is a way for these countries to make a clear demarcation from the past ‘evil’ regime. This was particularly clear in South Africa where judicial abolition of the death penalty in 1995 was part of the transition to democracy. In this way, the situation surrounding the death penalty differs in states under democratization, compared with established democracies, such as the United States and Japan, or non-democratic countries, such as China.

Democratization is not the only type of transition that countries around the world experience. Since the late 1980s, a number of countries faced severe ethnic conflicts and civil wars, and have engaged in a process of post-conflict peacebuilding. During such a process, which brings countries from conflict to peace, several abolished the death penalty, including Angola, Bosnia, Burundi, Mozambique and Timor-Leste. At the same time, there are cases like Rwanda, which in the early stages opposed the International Criminal Tribunal for Rwanda because it does not allow death sentences, and Iraq, which executed Saddam Hussein after his conviction by the Supreme Iraqi Criminal Tribunal. There, the policy to retain or even actively resort to the death penalty is seen as the only way to deal with individuals, including top political leaders, responsible for mass atrocities; however, it caused serious tensions among various stakeholders of peacebuilding activities. These cases show that death penalty policies are impacted by different issues arising during the time countries are emerging out of conflict, whether they lead to retention or abolition. For post-conflict societies it is crucial to make just-restored and fragile peace sustainable and to avoid going back to conflict. Such a peacebuilding process is shaped by a number of substantive issues, such as regaining social order, reforming governance structures and the legal system, coming to terms with the past, rebuilding a relationship between the government and people. How these issues relate to a country's decision to abolish, retain or resort to the death penalty during transition is a key question. What is more, peacebuilding processes are often promoted by and involve international stakeholders, such as the United Nations and European countries with an abolitionist agenda, who see the process as an opportunity for their cause. However, there may be tensions between local standards and international norms: while there may be an acknowledgement that the death penalty is a problem from a human rights perspective, certain countries still view it as locally reasonable, or even necessary, especially in the post-conflict context.

Death penalty policies, whether they are abolitionist or retentionist, are highly political in countries undergoing democratization and peacebuilding processes. This is because death penalty policies become embedded in fragile and complex transition processes and intricately connected to various transitional issues and questions, including matters of security, governance and justice, which make states engage in a balancing and reconciling exercise. This ‘politics of the death penalty’ is what this edited volume looks into by focusing on countries in transition. It seeks to understand the social, political, cultural and legal aspects of transition from conflict to peace, or from authoritarianism to democracy, and examines whether and how they shape decisions on the death penalty in transitional countries. Conversely, the volume also seeks to establish whether and how policy decisions on the death penalty relate to and/or clash with other transitional issues and problems.

This volume aims to approach the death penalty policy from multiple perspectives, not only legal and normative, which has been done extensively by the existing literature, but also from social, cultural and political perspectives. It does not specifically take an abolitionist stance. In other words, some chapters in this volume do not provide recommendations for the way towards abolition. In some cases the abolition of the death penalty matches political and social goals of transition, but in other cases it creates additional problems and confusion. The work is precisely interested in such ambivalent relationship between the death penalty policy and transitional issues, and in the opportunities and challenges it creates.

The volume focuses on two types of transition processes: democratization and post-conflict peacebuilding processes. With this in mind, the editors chose countries which are/were going through democratization processes relatively recently (which excludes stable democracies and stable autocracies, such as the United States, Japan and China). They also chose countries which have experienced armed conflicts and are going through peacebuilding processes, and in some cases which are still struggling with conflict legacy. Democratization and post-conflict peacebuilding are different kinds of transition, which may raise concerns as to whether it is appropriate to bind together countries undergoing such different processes under the banner of ‘countries in transition’. Also, every democratization, as well as peacebuilding process, is unique with a different background and specific problems. That said, the editors believe that all ‘countries in transition’ covered in the book face fundamental political and social transformations and have emerged or are emerging from a difficult, problematic past. These are times during which societies struggle to regain social order, reform governance structures and legal systems, come to terms with the past, and rebuild a relationship between the government and people. Transition processes provide challenges and opportunities that are not faced by non-transitional countries. As such, it makes sense to focus on countries emerging from conflict or authoritarian rule, and examine the politics surrounding the use or abolition of the death penalty in countries in transition. The aim is not necessarily to generalize each experience and propose definite conclusions, but rather to highlight and examine the factors shaping the policy of the death penalty during transition processes, an area which ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Acknowledgements
• 1 Introduction
• 2 The politics of the death penalty and contexts of transition: democratization, peacebuilding and transitional justice
• 3 Democracy, democratization and the death penalty
• 4 Transitional justice, democratization and the politics of the death penalty in Argentina
• 5 In anticipation of ‘liberal democracy’: the abolition of the death penalty in Cambodia
• 6 Death penalty moratorium in South Korea: democratic transition and political leadership
• 7 The death penalty and post-conflict peace-building in the Balkans: the case of Bosnia and Herzegovina
• 8 The death penalty in Rwanda: surrounding politics and the ICTR's battle for abolition
• 9 The politics of the death penalty in post-conflict Sierra Leone: an opportunity for reform or a missed opportunity?
• 10 The death penalty and the Iraqi transition: observations on a lost opportunity
• 11 Transitional processes and the death penalty in North Africa
• 12 Capital punishment in a time of transition
• Index