Developing the EU’s new “more effective approach” to human rights and democracy: suggestions for a tailored human rights strategy for JapanPaul Bacon, Deputy Director, EUIJ Waseda

IntroductionIn the past year or so the EU has attempted to develop a more effective approach towards the promotion of human rights and democracy. This paper traces the development of this attempt through an analysis of four landmark EU human rights documents that have been published in the last year. These documents have called for a general renewal of the EU’s external policy, and emphasized the need for a more tailored, bottom-up, country-specific approach, combined with the development of cross-cutting worldwide campaigns on specific human rights themes. Each of the documents has also mentioned the administration of justice, or judicial reform focusing on the right to a fair trial, as an important human rights issue, and strongly recommended that the EU should use the standards established in the major international human rights treaties as benchmarks. I attempt to draw out the implications of the content of these documents by offering a sketch of what I believe that a tailored human rights strategy for Japan should look like. Drawing on the work of the UN Human Rights Committee, I argue that in Japan there should be less preoccupation with death penalty issues, and that greater relative emphasis should be placed on issues relating to the administration of justice. In the Japanese case there are particular reasons for suggesting this approach, but the approach could also have wider application in other countries where abolition of the death penalty is unlikely, but reform of the criminal justice system is rather more possible.

The High Representative’s Joint CommunicationIn December 2011 Baroness Ashton, the High Representative of the European Union for Foreign Affairs and Security Policy, presented a Joint Communication to the European Parliament and the Council, entitled Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach. She stated that the object of the Communication was “to open a discussion with the other European institutions on how to make the EU’s external policy on human rights and democracy more active, more coherent and more effective” (High Representative, p.4). She noted the need for renewal, and conceded that “The EU has not always been as effective or as joined-up as it might have been. The task in hand is to ensure the clarity, coherence, and effectiveness of policy, by being smarter and more strategic” (High Representative,

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p.6). She also argued that action was needed in a number of areas, including external delivery mechanisms, arguing that “a bottom-up, tailored, country-based approach, coupled with cross-cutting worldwide campaigns on specific themes” would be better for achieving the EU’s human rights and democracy-related objectives (High Representative, p. 7).

The Communication argued that the general objectives of the EU’s human rights and democracy policy are valid, but that it is necessary to match these general objectives to realities on the ground in particular countries. This more nuanced, differentiated strategy is more likely to get results than what is referred to as a “one-size-fits-all” approach:

Tailor-made country strategies should be part of the EU’s overall strategy … That is not to say that the EU should not, for example, condemn the use of the death penalty in a country that continues to apply it, rather that this should not be the sole focus of EU human rights work when other areas might deliver change (High Representative, p.8, my emphasis).

I will argue below that the EU has indeed pursued something of a one-size-fits-all approach towards Japan, and that other issues are arguably just as important as the death penalty, and easier to make progress on. The Communication notes that “the EU considers that respect for the rule of law, including access to justice and the right to a fair trial, is essential for the protection of human rights and democratic principles”(High Representative, p.7, my emphasis). Baroness Ashton further identifies three themes that the EU should focus on for the next three years, one of which is “judicial reform focusing on the right to a fair trial” (High Representative, p.8, my emphasis). The Communication therefore emphasizes the need for renewal, the need for country-specific strategies, the need for cross-cutting themes, and the significance of judicial reform and the right to a fair trial. Finally, the communication identifies the significance of the work already done by the UN:

The Universal Declaration of Human Rights sets international standards for all UN Member States. Every UN Member State is a party to at least one of the six major human rights treaties that the Universal Declaration has inspired, with 80% of states having ratified four or more. A global legal framework therefore exists: the real challenge lies in ensuring its implementation (High Representative, p. 5).

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The Council of Ministers’ Strategic Framework In June 2012 the Council of Ministers published an EU Strategic Framework, and an EU Action Plan on Human Rights and Democracy, which called for the mainstreaming of human rights in all EU external policies. The 2012 Strategic Framework and Action Plan are both very clearly inspired and informed by the 2011 Joint Communication. The Strategic Framework document states that:

The European Union is founded on a shared determination to promote peace and stability and to build a world founded on respect for human rights, democracy and the rule of law. These principles underpin all aspects of the internal and external policies of the European Union. … Human rights are universally applicable legal norms. The EU reaffirms its commitment to the promotion and protection of all human rights, whether civil and political, or economic, social and cultural. The EU calls on all States to implement the provisions of the Universal Declaration of Human Rights and to ratify and implement the key international human rights treaties … The EU will speak out against any attempt to undermine respect for universality of human rights (Council of Ministers, Strategic Framework, p.1, my emphasis ).

Article 21 of the Treaty on European Union reaffirms the EU’s determination to promote human rights and democracy through all of its external actions, and claims that promoting and speaking out on human rights and democracy is a joint responsibility of the EU and its member-states. In the Strategic Framework, it is argued that the EU will promote human rights in all areas of its external action without exception, and integrate the promotion of human rights into trade and investment. The Strategic Framework identifies several EU human rights priorities, including the death penalty and the administration of justice. More specifically, it is argued that:

The death penalty and torture constitute serious violations of human rights and human dignity. Encouraged by the growing momentum towards abolition of the death penalty worldwide, the EU will continue its long-standing campaign against the

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death penalty. The EU will continue to campaign vigorously against torture and cruel, inhuman and degrading treatment (Council of Ministers, Strategic Framework, p.3).

And that:

The fair and impartial administration of justice is essential to safeguard human rights. The EU will step up its efforts to promote the right to a fair trial and equality before the law (Council of Ministers, Strategic Framework, p.3, my emphasis).

The Strategic Framework document further insists that “the EU will place human rights at the centre of its relations with all third countries, including its strategic partners” (Council of Ministers, Strategic Framework, p.3), which include, of course, Japan, and will “raise human rights issues vigorously in all appropriate forms of political dialogue, including at the highest level” (Council of Ministers, Strategic Framework, p.3). Furthermore, while the EU retains a firm commitment to the fact that its human rights policy is based on universal norms, “policy on human rights will be carefully designed for the circumstances of each country, not least through the development of country human rights strategies” (Council of Ministers, Strategic Framework, p.3).

So, according to the Strategic Framework, the EU is committed to universal human rights norms, calls on all states to ratify and implement universal human rights covenants and treaties, and commits itself to speaking out against those who undermine these universal human rights norms. The Strategic Framework identifies abolition of the death penalty and concern with the fair administration of justice as human rights priorities. Finally, the EU wants to place human rights at the centre of its relations with all strategic partners, is prepared to raise human rights issues at all levels of strategic dialogue with strategic partners, and is committed to creating tailored country-specific human rights strategies.

The Council of Ministers’ Action PlanThe Action Plan, whose purpose is to provide for the implementation of the Strategic

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Framework, contains 36 desired outcomes and responsibilities which are directly relevant to the work of the EEAS and the Commission in relation to Japan. I have selected the most obviously relevant items from the Action Plan, and briefly summarize them below:

Outcome Item 1: Human rights and democracy throughout EU policy - The Commission should include human rights issues in Impact Assessment.Outcome Item 2: Partnership with civil society at the local level- Heads of EU Delegations shall work closely with human rights NGOs in

their countries of their posting; - ensure effective support to civil society organizations; and - consolidate consultations with civil society, notably on policy initiatives and

dialogues on human rights.Outcome Item 4: Universal adherence- Promote the universality of human rights – intensify the promotion of

ratification and effective implementation of key international human rights treaties.

Outcome Item 5: A culture of human rights and democracy in EU external action- Expand the practice of working on human rights issues through local human

rights working groups.Outcome Item 8: Achieving greater policy coherence- To facilitate greater policy coherence, ensure that EU policy documents

contain appropriate references to relevant UN human rights instruments (I do this with the Convention on Civil and Political Rights – see below).

Outcome Item 11: Make trade work in a way that helps human rights- Develop methodology to aid consideration of the human

rights situation in third countries in connection with the launch or conclusion of trade and/or investment agreements.

- Reinforce human rights (or political) dialogues with FTA partners to encourage the protection and promotion of human rights.

Outcome Item 16: Abolition of the death penalty- Actively contribute to lobbying on the UNGA 67 Resolution

on the death penalty moratorium, in order to increase support among States while also developing further the

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content of the initiative. - Undertake targeted campaigns on the death penalty and

intensify engagement with retentionist countries. - Ensure EU input to the World Congress against the Death

Penalty 2013. Outcome Item 18: Effective support to human rights defenders- Promote improved access by local human rights defenders

to the UN and regional human rights protection mechanisms.

- Publish contact details of the human rights focal points of all EU missions, as well as EU Liaison Officers on human rights defenders on the websites of the EEAS and EU Delegations.

Outcome item 26: Administration of justice- With regard to the administration of justice, conduct a campaign on justice,

focusing on the rights to a fair trial.- Continue to ensure monitoring of important human rights-related trials.

Outcome Item 31: Impact on the ground through tailor-made approaches - Continue to develop local human rights country strategies,

assess lessons learnt, and identify best practice.- Ensure that the human rights country strategies are taken

into account in human rights and political dialogues at all levels

- Ensure that human rights country strategies are effectively mainstreamed by the EEAS, Commission and Member States.

- Ensure comprehensive follow up to the human rights country strategies through annual progress reports and reviews.

Outcome Item 32: Impact through dialogue- Establish priorities, objectives, indicators of progress for EU

human rights dialogues and consultations, to facilitate their review.

- Make full use of recommendations from UPR, Treaty Monitoring Bodies and Special Procedures in engagement with third countries.

Outcome Item 33: Effective use and interplay of EU external policy instruments

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- Further develop working methods to ensure the best articulation between dialogue, targeted support, incentives and restrictive measures.

- Develop criteria for application of the human rights clause (Council of Ministers, Action Plan, pp. 1-10).

We can therefore see that the Action Plan also emphasizes the need for tailored country-specific strategies (Item 31), and the importance of the death penalty (Item 16) and issues relating to the administration of justice (Item 26). The Action Plan also stresses the importance of using universal human rights standards, such as those drawn from the Universal Declaration of Human Rights and the major UN human rights treaties, and from the recommendations made by Treaty Monitoring Bodies such as the Human Rights Committee and the Committee against Torture (Items 4, 8 and 32).

The European Parliament’s Briefing PaperIn October 2012 the European Parliament published a Briefing Paper entitled Enhancing EU Action on the Death Penalty in Asia. This Briefing Paper called for more nuanced country-specific death penalty strategies, and it also identified a comprehensive, 7-stage framework within which to encourage states at different stages on the journey towards abolition. The framework, produced by Roger Hood, a leading international expert on the death penalty, was very impressive, and is discussed in more detail below. However, the suggestions towards country-specific strategies in the Briefing Paper were necessarily a little brief and thin, given the space and scope constraints. In order to complement the excellent work done on creating a regional framework within which to consider death penalty and administration of justice issues, I want to provide a more detailed sketch of a possible Japan strategy in the final section of this paper.

The remit of the Briefing Paper was: first, to provide a concise overview of the state-of-play regarding the death penalty in Asia, with a focus on countries where the situation or recent evolution warrants more attention; second, to analyse the past experience and potential new avenues for EU action against the death penalty in Asia; and third to define possible courses of action or policy proposals for the European Parliament to take in order to contribute constructively to future EU policy (including priorities of future EU aid funding) (European Parliament, p.6).

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The Briefing Paper defines Asia as including 24 countries. Five countries have abolished the death penalty completely: Cambodia, Bhutan, Nepal, Mongolia (the most recent), and the Philippines. Six countries have retained the death penalty in law but are regarded as abolitionist in practice, no person having been executed for at least 10 years, although all have imposed death sentences in this period: the Maldives, Brunei, Sri Lanka, Burma, Laos, and South Korea. Thirteen countries retain the death penalty and have carried out executions within the past 10 years (the last known execution is in brackets, according to the Briefing Paper). Eight of these retentionist countries are discussed in more detail in the Briefing Paper, with recommendations made for possible EU future action to encourage reform leading towards further restrictions on the scope and application of the death penalty, a moratorium on executions, and final abolition: Afghanistan, Bangladesh, China (2012), India (2004), Indonesia (2008), Japan (2012), North Korea (2011), Malaysia (2010), Pakistan (2008), Singapore (2011), Taiwan (2011), Thailand (2009) and Vietnam (2011) (European Parliament, p. 6).

The Briefing Paper also offers several recommendations on policy, practices and future programmes in relation to specific countries. With regard to the question of whether the EU should give priority to one strategy over another, the Briefing Paper argues that:

the patterns revealed suggest that no single strategy should have priority, rather each country should be approached in regard to the stage that it has reached in considering whether to continue to retain or to move towards further restriction or complete abolition of the death penalty (European Parliament, p.43).

The Briefing Paper suggests the following approach:

1. With regard to countries that have abolished the death penalty in law, the EU should not regard the matter as concluded until all have ratified the ICCPR and its Second Optional Protocol. Neither Cambodia nor Bhutan have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) aiming at the abolition of the death penalty. This action is necessary to ensure, as far as it is possible, that capital punishment will not be reinstated in response to public order emergencies or to public pressure whipped up by the media or opposition political parties in response to a spate of particularly heinous crimes. It would be advantageous too if all such countries were to amend their constitutions so as to ban the death penalty under right to life provisions or provisions safeguarding citizens

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from cruel and inhuman punishment or treatment, as many abolitionist states in Europe have done.

2. Countries that retain the death penalty in law and still sentence persons to death yet appear to have a settled policy not to carry out executions should be strongly encouraged to move swiftly to full abolition in law and ratification of the Second Optional Protocol to the ICCPR. Brunei and Burma have yet to accede to the ICCPR, and none of the four other countries that have ratified the ICCPR have ratified the Second Optional Protocol. They should all be encouraged to do so.

3. Countries that have reduced the number of executions annually to a small handful, especially those that are now sporadic executioners should be persuaded to cease executions altogether, and if abolition is considered not politically possible immediately, announce an official moratorium and clemency for all persons under sentence of death. Some, as suggested for India, might be persuaded to abolish the death penalty for all ordinary crimes.

4. All retentionist countries in which the death penalty is mandatory for any crime, including grave cases of murder, should be persuaded to abolish all mandatory death penalties in line with the developed international human right law. If complete abolition is unacceptable, they should be advised to develop sentencing guidelines for the discretionary use of capital punishment only in the ‘worst of the worst’ cases of murder’: always recognising that this is a temporary interim step until full abolition can be achieved.

5. As regards the relatively small number of countries where the death penalty is still imposed for crimes other than murder, such as for drug, economic, sexual, and religious offences, policy should be directed towards ensuring that such laws are abolished in line with the widely accepted interpretation of article 6(2) of the ICCPR.

6. In those countries where religious authority is cited as demanding support for the death penalty, the EU should bring to public attention the fact that there are many countries in North Africa, Europe and South Central Asia whose populations are overwhelmingly Muslim where the death penalty has been abolished or where no one has been executed for many years.

7. In all retentionist countries, whether they carry out executions regularly or not, emphasis should continue to be placed on reminding them to interpret “most serious crime” in the narrowest sense, so limiting the death penalty solely to intentional murder, and always at the discretion of the court for the ‘worst of the worst kind’ only, and to keep to a minimum the suffering of prisoners under sentence of death.

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But care must be taken emphasize the need for reform of criminal and judicial procedures, so as to guarantee the right to a fair trial (European Parliament, pp. 43-44).

Having just given an overview of the High Representative’s Joint Communication, the Council of Ministers’ Strategic Framework and Action Plan and the European Parliament’s Briefing Paper, it is worth briefly re-capitulating some of the key points contained in the three documents. Each of the documents called for renewal, each supported the idea of tailored, bottom-up country-specific strategies and cross-cutting themes, and each emphasized the importance of both the death penalty and the administration of justice. Each document also emphasized that it is necessary to target a number of different issues in combination. In some countries, abolition of the death penalty might be unlikely, and in such cases it would be more practical to shift relative attention to other issues. Similarly, as the European Parliament Briefing Paper notes, even if we were to focus exclusively on the death penalty, something which I am not advocating in this paper, we would find that countries are at different stages on the journey to abolition, and therefore require different strategies.

The Death Penalty and JapanCapital punishment is legal in Japan. Between 1946 and 1993, Japanese courts sentenced 766 people to death, 608 of whom were executed. The death penalty is ordinarily imposed in cases of multiple murders involving aggravating factors. In Japan, the courts follow guidelines developed during the 1983 trial of Norio Nagayama, a 19 year old from a disadvantaged background, who committed four murders. The Supreme Court of Japan, in imposing the death penalty, ruled that the death penalty may be imposed in consideration of the degree of criminal liability and balance of justice, based on a nine-point set of criteria. Though technically not a precedent, the ‘Nagayama standard’ has been followed in all subsequent capital cases in Japan. The criteria are as follows:

1. Degree of viciousness 2. Motive 3. How the crime was committed; especially the manner in which the victim was killed.

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4. Outcome of the crime; especially the number of victims. 5. Sentiments of the bereaved family members. 6. Impact of the crime on Japanese society. 7. Defendant's age (in Japan, someone is a minor until the age of 20). 8. Defendant's previous criminal record. 9. Degree of remorse shown by the defendant. (Schmidt, 2002, pp.54-55)

Those on death row are not classified as prisoners by the Japanese justice system, and the facilities they are held at are not referred to as prisons. Inmates lack many of the rights afforded to other Japanese prisoners. The nature of the regime they live under is largely up to the director of the Detention Center at which they are held, but it is usually significantly harsher than in normal Japanese prisons: inmates are held under solitary confinement and are forbidden from communicating with their fellows; they are permitted two periods of exercise a week; they are not allowed televisions and may only possess three books; prisoners are not allowed to exercise within their own cells; and prison visits, both by family members and legal representatives, are infrequent and closely supervised.

Executions are carried out by hanging in a death chamber within the Detention Center. When a death order has been issued, the condemned prisoner is informed on the morning of his or her execution. The prisoner’s family and legal representatives are not informed until afterwards. There are presently 133 people awaiting execution in Japan (Japan Times, December 31st, 2012).

The Parliament Briefing Paper identifies Japan’s situation as having fluctuated markedly in recent years. It implies that there is little chance of an official moratorium or abolition of the death penalty, a sentiment with which I concur. The Democratic Party of Japan (DPJ) was in power for three years between 2009 and late 2012, and is generally less supportive of the death penalty. (Only 2 executions in 2.5 years, until March 2012) There were two periods of de facto moratorium when the DPJ was in power, the second of which lasted 20 months. This year, however, the DPJ oversaw 7 executions. The general election, held on December 16th, was emphatically won by the Liberal Democratic Party (LDP), which is generally highly supportive of the death penalty.

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From the graph above we can see that after a comparative lull between 2001 and 2005, the number of executions rose significantly in the following four years. The number of executions declined again during the first three years of DPJ rule, including a 20-month de facto moratorium, but increased significantly again in 2012, in election year.

Roughly 85% of the Japanese public supports the death penalty. This makes it politically costly to consider abolition, and offers an easy excuse to continue with executions. The DPJ was prepared to uphold a de facto moratorium during the middle of its term of office, but came under strong pressure from the LDP, Ministry of Justice bureaucrats and the public in 2012, in the build-up to the general election. The de facto moratorium was a significant achievement, but is also the high-water mark of what is currently achievable in Japan on the death penalty, given the fact that the LDP is back in power. The new LDP Justice Minister Sadakazu Tanigaki authorized three executions in February 2013, and has made it clear that he has no plans to review the current system (Japan Times, 2013). So, a more differentiated human rights strategy is necessary for Japan. This approach should still include the death penalty, but should not focus exclusively or excessively on it. There are other human rights issues in Japan, including issues relating to the administration of justice, which are arguably more important than the death penalty, and on which there is greater possibility of movement by the Japanese government. I take up

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these issues in the next section.

The UN Human Rights Committee, the EU and the Administration of JusticeEarlier in this paper I discussed four recent EU documents on human rights and democracy. The Joint Communication (p.15), the Strategic Framework (p.1), the Action Plan (p.9), and the Briefing Paper (p.12) which I discussed above, all explicitly recommended that the EU should, in its development of human rights policy, draw on and benchmark to, standards established in the work of the UN, both in international human rights treaties, and in the UN human rights bodies that monitor them.

Accordingly, in what follows I will draw extensively on the work of the UN Human Rights Committee, which has focused on human rights and the death penalty in Japan in impressive detail. The UN Human Rights Committee is the monitoring committee for the International Covenant on Civil and Political Rights. States party to this Covenant are required to submit initial and periodic reports to the committee. Japan’s Fifth Periodic Report was considered during the 94th session of the Human Rights Committee, in October 2008. In this section of the paper I draw on criticisms that were made of Japan's record in the Concluding Observations of the Human Rights Committee. I have focused on the sections of the Concluding Observations that focus on the death penalty and the administration of justice in Japan's criminal justice system. For each article of the Concluding Observations, subjects of concern and recommendations are listed. The Concluding Observations document features 34 articles in total, but here I focus on articles 16-21.

In Article 16, the Committee reiterates its concern that the number of crimes punishable by the death penalty in Japan has still not been reduced, and that the number of executions has steadily increased in recent years. It is also concerned that death row inmates are kept in solitary confinement, often for protracted periods; are executed without prior notice being provided before the day of execution; and, in some cases, at an advanced age or despite the fact that they have mental disabilities. The non-use of the power of pardon, commutation or reprieve, as well as the absence of transparency concerning procedures for seeking benefit for such relief, is also a matter of concern. (These practices are in contravention of Articles 6, 7 and 10 of the International Covenant on Civil and Political Rights (hereafter ICCPR)). As a result of the subjects of concern noted under Article 16, the Human Rights Committee (hereafter HRC) makes the following recommendations:

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Regardless of opinion polls, the State party [Japan] should favourably consider abolishing the death penalty; and inform the public, as necessary, about the desirability of abolition. In the meantime, the death penalty should be strictly limited to the most serious crimes, in accordance with article 6, paragraph 2, of the Covenant. Consideration should be given by the State party to adopting a more humane approach with regard to the treatment of death row inmates; and the execution of persons at an advanced age or with mental disabilities. The State party should also ensure that inmates on death row and their families are given reasonable advance notice of the scheduled date and time of the execution, with a view to reducing the psychological suffering caused by the lack of opportunity to prepare themselves for this event. The power of pardon, commutation and reprieve should be genuinely available to those sentenced to death (United Nations Human Rights Committee, October 2008).

In Article 17, the Committee notes with concern that an increasing number of defendants are convicted and sentenced to death without exercising their right of appeal; that meetings of death row inmates with their lawyer in charge of requesting a retrial are attended and monitored by prison officials until the court has decided to open the retrial; and that requests for retrial or pardon do not have the effect of staying the execution of a death sentence. (These practices are in contravention of Articles 6 and 14 of the ICCPR). As a result of the subjects of concern noted under Article 17, the HRC makes the following recommendations:

The State party should introduce a mandatory system of review in capital cases; and ensure the suspensive effect of requests for retrial or pardon in such cases. Limits may be placed on the number of requests for pardon in order to prevent abuse of the suspension. It should also ensure the strict confidentiality of all meetings between death row inmates and their lawyers concerning retrial (United Nations Human Rights Committee, October 2008).

In Article 18, the Committee notes that police functions of investigation and detention are formally separated under the Act on Penal Detention Facilities and Treatment of Inmates and Detainees. However, the Committee is concerned about aspects of the substitute detention system (Daiyo Kangoku), under which suspects can be: detained in police detention facilities for a period up to 23 days to facilitate investigations; without

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the possibility of bail; and with limited access to a lawyer especially during the first 72 hours of arrest. This increases the risk of prolonged interrogations and abusive interrogation methods with the aim of obtaining a confession. (These practices are in contravention of Articles 7, 9, 10 and 14 of the ICCPR). As a result of the subjects of concern noted under Article 18, the HRC makes the following recommendations:

The State party should abolish the substitute detention system; or ensure that it is fully compliant with all guarantees contained in article 14 of the Covenant. It should ensure that all suspects are guaranteed: the right of confidential access to a lawyer; including during the interrogation process; and to legal aid from the moment of arrest and irrespective of the nature of their alleged crime; and to all police records related to their case; as well as to medical treatment. It should also introduce a pre-indictment bail system (United Nations Human Rights Committee, October 2008).

In Article 19, the Committee notes with concern the insufficient limitations on the duration of interrogations of suspects contained in internal police regulations; and the exclusion of counsel from interrogations on the assumption that such presence would diminish the function of the interrogation to persuade the suspect to disclose the truth; and the sporadic and selective use of electronic surveillance methods during interrogations, frequently limited to recording the confession by the suspect. It also reiterates its concern about the extremely high conviction rate based primarily on confessions. This concern is aggravated in respect of such convictions that involve death sentences. (These practices are in contravention of Articles 7, 9, and 14 of the ICCPR). As a result of the subjects of concern noted under Article 19, the HRC makes the following recommendations:

The State party should adopt legislation prescribing strict time limits for the interrogation of suspects and sanctions for non-compliance; ensure the systematic use of video recording devices during the entire duration of interrogations; and guarantee the right of all suspects to have counsel present during interrogations, with a view to preventing false confessions and ensuring the rights of suspects under article 14 of the Covenant. It should also acknowledge that the role of the police during criminal investigations is to collect evidence for the trial rather than establishing the truth; ensure that silence by suspects is not considered inculpatory; and encourage courts to rely

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on modern scientific evidence rather than on confessions made during police interrogations (United Nations Human Rights Committee, October 2008).

In Article 20, the Committee is concerned that the Penal Institution Visiting Committees, which review complaints that have been dismissed by the Minister of Justice; and the Prefectural Public Safety Commissions responsible for reviewing complaints, petitions for review and reports of cases submitted by detainees; lack the independence, resources and authority required for external prison or detention monitoring and complaint mechanisms to be effective. It notes the absence of any verdicts of guilt or disciplinary sanctions against detention officers for crimes of assault or cruelty during the period from 2005 to 2007. (These practices are in contravention of Articles 7 and 10 of the ICCPR). As a result of the subjects of concern noted under Article 20, the HRC makes the following recommendations:

Finally, for our purposes here, under Article 21, the Committee is concerned that death row inmates are confined to single rooms during day and night, purportedly to ensure their mental and emotional stability; and that lifetime prisoners are sometimes also placed in solitary confinement for protracted periods of time. It is also concerned about reports that inmates may be confined to protection cells without prior medical examination for a period of 72 hours initially which is indefinitely renewable; and that a certain category of prisoners are placed in separate “accommodating blocks” without an opportunity to appeal against this measure. (These practices are in contravention of Articles 7 and 10 of the ICCPR). As a result of the subjects of concern noted under Article 21, the HRC makes the following recommendations:

The State party should relax the rule under which inmates on death row are placed in solitary confinement; ensure that solitary confinement remains an exceptional measure of limited duration; introduce a maximum time limit; require the prior physical and mental examination of an inmate for confinement in protection cells; and discontinue the practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal (United Nations Human Rights Committee, October 2008).

I have now discussed in some detail what the UN Human Rights Committee identifies as some of Japan’s most pressing administration of justice and death penalty-related problems. In the final section of the chapter I would like to investigate ways in which

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the EU could distinguish due process issues from death penalty issues, and look briefly at the possibilities for EU human rights diplomacy that are opened up by this distinction.

Towards a Japan-Specific Strategy: Separate Death Penalty and Administration of Justice IssuesI have suggested in this paper that it is difficult for any Japanese government to go any further than a de facto moratorium on the death penalty, and that this important issue may be a sticking point for the relationship. If Europeans bring a zero-sum approach to debates about the death penalty then it could be difficult to make real progress. It could be argued that Europeans attach too much symbolic importance to the abolition of the death penalty, viewing it as a non-negotiable ‘litmus test’, to the detriment of other political and human rights objectives that could reasonably be argued to be at least as important. To be specific, I think that reform of the Japanese criminal justice system, and improvements in the overall quality of administration of justice in Japan are at least as important as abolition of the death penalty, and significantly easier to achieve from a strategic perspective.

It is a mistake to for Europeans to view the death penalty issue as a zero-sum game, but it is also a mistake for retentionists to view the issue through the prism of Asian values. Some Asian states have abolished the death penalty or effectively adopted moratoria, as we have seen, and some Western states retain the death penalty, the most obvious and important of which being the United States. Significant proportions of most Western publics (majorities in some cases) support the death penalty. Two of the most highly respected defenders of the idea of universal human rights, one American, and one Japanese, agree that there is a reasonable case that can be made for the death penalty (Donnelly, 1999, Onuma, 1999). For all of these reasons, it is lazy and unhelpful to perceive this debate through the prism of “Western” versus “Asian” values.

I believe that it is morally justifiable and strategically useful to separate death penalty issues from administration of justice issues. In an ideal world one might hope that all of the recommendations enumerated by the UN Human Rights Committee could be accepted by the Japanese government. In most foreseeable Japanese political climates, however, it would be difficult for any incumbent party to deliver abolition or an official moratorium without risking political suicide. The EU needs to appreciate this, and develop a tailored human rights strategy that is sensitive to the real constraints that any

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Japanese government will actually face. This paper suggests a more flexible and nuanced approach to criminal justice issues, and discourages a disproportionately symbolic focus on the death penalty. I believe that the Japanese government would it find it easier to agree to many of the disaggregated, incremental human rights recommendations I have identified below. I demonstrate how death penalty and administration of justice issues can be separated, and how this separation provides the EU with a more realistic framework within which to conduct its human rights diplomacy in Japan.

This paper has described in some detail the content of four recent and important EU documents: the 2011 Joint Communication to the European Parliament and the Council, Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach; the 2012 EU Strategic Framework on Human Rights and Democracy; the 2012 EU Action Plan on Human Rights and Democracy, and the 2012 European Parliament Briefing Paper Enhancing EU Action on the Death Penalty in Asia.

The Joint Communication emphasizes the need for renewal, the need for country-specific strategies, the need for cross-cutting themes, and the significance of judicial reform and the right to a fair trial. The Strategic Framework commits the EU to universal human rights norms, calls on all states to ratify and implement universal human rights treaties, identifies abolition of the death penalty and concern with the fair administration of justice as human rights priorities, and is committed to creating tailored country-specific human rights strategies. The Action Plan also emphasizes the need for tailored country-specific strategies (Item 31), the importance of the death penalty (Item 16) and issues relating to the administration of justice (Item 26). The Action Plan also stresses the importance of using universal human rights standards, such as those drawn from the Universal Declaration of Human Rights and the major UN human rights treaties, and from the recommendations made by Treaty Monitoring Bodies (Items 4, 8 and 32).

The Joint Communication further notes that in some countries, abolition of the death penalty is unlikely, and that in such cases it would be more practical to shift relative attention to other issues. The European Parliament Briefing Paper notes that even if we were to focus exclusively on the death penalty, we would find that countries are at

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different stages on the journey to abolition, and therefore require different strategies. We can therefore see that: each of the documents called for renewal; each supported the idea of tailored, bottom-up country-specific strategies and cross-cutting themes; each emphasized the importance of both the death penalty and the administration of justice; and each emphasized that it might not be fruitful to focus exclusively on the death penalty.

The four EU documents I have discussed above all also explicitly recommend that the EU should draw on standards which are found in the work of the UN, in the content of the international human rights treaties, and in the reports produced by the UN human rights bodies that monitor them. Following these recommendations, I discussed the 2008 Concluding Observations of the UN Human Rights Committee on Japan’s Fifth Periodic Report. Drawing on these documents, in what follows I create composite lists of the most important recommendations that relate to the death penalty and administration of justice, respectively. I have separated the recommendations into two categories, and within these categories, I have ranked issues in descending order (with what I think are the most important issues placed at the top of each list).

The two categories of death penalty and administration of justice clearly overlap, but they are also separable. Developing human rights strategy in this way unbundles key death penalty and administration of justice issues into smaller, more achievable recommendations and targets. The Japanese government is not being presented with human rights demands that it cannot meet, but is instead presented with opportunities to co-operate over smaller, often shared human rights objectives that are not as politically sensitive, and on some of which it has already begun to implement reform.

More detailed work needs to be done to identify issues from these lists on which to focus. Of the 34 issues identified below, perhaps the EU Delegation in Tokyo should identify 5-10 issues on which progress would be most helpful and most likely, and target resources to these issues. The issues which are selected should form the basis for a targeted campaign, and built into work programmes and impact assessment. These issues should be identified in partnership with Brussels, and communicated to other Delegations in the region. Thought should be invested into how, if at all, these issues could be usefully incorporated into forthcoming negotiations concerning FTA and political framework agreements.

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The sketch I offer locates the credible choices for an EU human rights strategy for Japan within a coherent framework, which is consistent with and develops the logic found in the four reports that have been discussed in this paper. The tables below complete the process, by identifying a country-specific set of issues relevant to Japan, recognizing the significance accorded to administration of justice issues, taking universal values from the international human rights treaties, and suggesting ways of applying them in a more subtle, selective way which is sensitive to the local context.

Table 1: Death penalty issues, drawn from the Concluding Observations of the UN Human Rights

Committee, separated from administration of justice issues, and itemized in descending list of priority.

Recommendations related to the death penalty1. Abolition of the death penalty2. Official moratorium on death penalty.3. Unofficial moratorium on death penalty.4. Significant reduction in number of executions5. Reduction in the number of executions6. Persons at an advanced age or with mental disabilities not to be executed. 7. Minors not to be executed.8. Pregnant women or young mothers not to be executed.9. Powers of pardon, commutation and reprieve to be genuinely available to

those sentenced to death.10. Mandatory system of review in capital cases.11. Suspensive effect of requests for retrial or pardon in such cases. 12. Strict confidentiality for all meetings between death row inmates and their

lawyers concerning retrial.13. Death row inmates treated more humanely.14. Inmates on death row and their families to be given reasonable advance

notice of the scheduled date and time of the execution, to prepare themselves for this event.

15. Ensure that solitary confinement remains an exceptional measure of limited duration.

16. Introduce a maximum time limit for solitary confinement.17. Require prior physical and mental examination for inmates to be confined

in protection cells.18. Discontinue practice of segregating certain inmates in “accommodating

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blocks” without clearly defined criteria or possibilities of appeal.

Table 2: Administration of justice issues, drawn from the Concluding Observations of the UN Human

Rights Committee, separated from death penalty issues, and itemized in descending list of priority.

Recommendations related to the administration of justice (due process/criminal justice)1. Abolish the substitute detention system.2. Pre-indictment bail system to be introduced 3. Right of confidential access to legal aid from the moment of arrest and

irrespective of the nature of their alleged crime, for all suspects.4. Right of confidential access to a lawyer during the interrogation process for

all suspects.5. Right of all suspects to have counsel present during interrogations, to

prevent false confessions and ensure the rights of suspects6. Strict time limits for interrogation of suspects, and sanctions for non-

compliance.7. Systematic use of video recording devices for entire duration of

interrogations.8. Role of police during criminal investigations is to collect evidence for the

trial rather than establishing the truth.9. Silence of suspects not considered inculpatory.10. Courts to rely on modern scientific evidence rather than confessions made

during police interrogations.11. Right of confidential access to all police records related to their case for all

suspects. 12. Right of confidential access to medical treatment for all suspects. 13. The Penal Institution and Detention Facilities Visiting Committees are

adequately equipped and have full access to all relevant information. 14. Members of above committees not appointed by management of penal

institutions and police detention facilities. 15. The Review and Investigation Panel for Complaints from Inmates of Penal

Institutions adequately staffed and its opinions binding on the Ministry of Justice.

16. Competence for reviewing complaints by detainees to be transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts.

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