Moving Away From Death Penalty_web

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M o v i n g Aw a y f r o m

t h e D e a t h P e n a l t y

L e s s o n s f r o m N a t i o n a l E x p e r i e n c e s


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AN EXECUTION CHAMBER WITH BULLET HOLES SHOWING FOLLOWINGTHE EXECUTION OF A DEATH CONVICT BY FIRING SQUAD

PHOTO: EPA/TRENT NELSON


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M o v i n g Aw a y f r o m

t h e D e a t h P e n a l t y

L e s s o n s f r o m N a t i o n a l E x p e r i e n c e s


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FOREWORD

The large majority o Member States o the United Nations about 150 out o 193 States have already abolishedthe death penalty or observe a legal or de acto moratoriumon its use. Since 2007, the General Assembly has also beencalling or a global moratorium on the death penalty. Yet, theremaining retentionist states are reported to have carried outmore than 600 executions over the course o 2011 alone.The actual number is probably several times higher sincesome countries do not provide gures.

The United Nations opposes the death penalty because it negates the right to li eand its application raises serious human rights concerns. It is striking that even well-

unctioning legal systems have sentenced to death persons who were ultimately provedinnocent. In sentencing practice, the decision whether to sentence the convict to deathor li e imprisonment is o ten arbitrary and devoid o predictable rational criteria. Inthis judicial lottery, the odds are o ten stacked against those who belong to racial,religious, national, ethnic or sexual minorities.

The application o the death penalty almost invariably entails cruel, inhuman anddegrading treatment in violation o international law. Its cruelty starts long be ore the

actual execution, when the condemned person is caught in a terri ying limbo betweenthe ear o imminent violent death and the aint hope that appeals or due processor clemency could spare his or her li e a ter all. Almost 20,000 human beings arecurrently living on death row.

All this begs the question: Why do states retain the death penalty? Any suggestionsthat the death penalty has a meaning ul deterrent e ect have been overstated, withlittle research supporting such an assertion.

My O ce is organising a series o global panel discussions on the abolition o thedeath penalty. This publication is based on the rst o these discussions, held atthe United Nations in New York on 3 July 2012. I am grate ul or the outstandingcontributions made by the panelists, who represent diverse regions, cultures andlegal traditions. The discussion was urther enriched by an engaged audience o statedelegates, legal practitioners and civil society representatives.

Political decision-makers, religious and other civil society leaders and the media,supported by regional and international organizations, have to keep the light shiningon the act that the application o the death penalty is unjust and incompatible with

undamental human rights values. It is an a ront to the right to li e and the right todignity. It is my sincere hope that this will convince the ew remaining retentioniststates to change course and bring an end to the death penalty.

Na P llayHigh Commissioner for Human Rights


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ABBREviATiONS AND ACRONYMS

CELAC Community o Latin American and Caribbean States(Comunidad de Estados Latinoamericanos y Caribeos)

IACHR Inter-American Commission on Human Rights

ICCPR International Covenant on Civil and Political Rights

ICTR International Criminal Tribunal or Rwanda

ICTY International Criminal Tribunal or Yugoslavia

MENA The Middle East and North A rica

NGO Non-Governmental Organisation

OAS Organization o American States

OHCHR O ce o the High Commissioner or Human Rights

UN United Nations


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TABLE OF CONTENTS

1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. Member State developments since the 2007 resolution . . . . . . . . . . . . . . 3

3. OHCHR activities towards the universal abolition o the death penalty. . . 7

4. Highlights o the panel event on the death penalty . . . . . . . . . . . . . . . . . . 8

4.1 Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4.2 Wrong ul convictions and innocence . . . . . . . . . . . . . . . . . . . . . . . 12

4.3 Leadership and public opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4.4 Role o international and regional organizations . . . . . . . . . . . . . . . 18

5. Speeches and statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5.1 Secretary-General Ban Ki-moon . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5.2 High Commissioner or Human Rights, Navi Pillay . . . . . . . . . . . . . 23


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insert P cture - F l p nos l ght ng candles ( mage number

02659637)Photo capt on

SYMPATHISERS IN MANILA, PHILIPPINES, LIGHT CANDLES FOR THREE FILIPINOS FACING THE DEATH PTRAFFICKING OFFENCES IN CHINA, 2011. PHOTO: EPA/ROLEX DELA PENA

THE TAKING OF LIFE is too absolute, too irreversible, or one human being to in ict it on another, even when backed by

legal process. United Nations Secretary-General

Ban Ki-moon

SYMPATHISERS IN MANILA, PHILIPPINES, LIGHT CANDLES FOR THREE FILIPINOS FACING PENALTY IN RELATION TO DRUG TRAFFICKING OFFENCES IN CHINA, 2011.

PHOTO: EPA/ROLEX DELA PENA


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1. BACKGROUND

Today more than two thirds o the Member States o the United Nations haveeither abolished the death penalty or do not implement it. They represent diverse

legal systems, traditions, cultures and religious backgrounds. While Article 6 othe International Covenant on Civil and Political Rights (ICCPR) permits the use othe death penalty in limited circumstances, it also provides that nothing in thisarticle shall be invoked to delay or to prevent the abolition o capital punishmentby any State Party to the present Covenant. (Article 6, para. 6, ICCPR).

In 2007 the General Assembly adopted a resolution on a moratorium on the useo the death penalty (A/62/149). The resolution was passed by a vote o 104 in

avour to 54 against, with 29 abstentions. The resolution called on all States thatstill allowed capital punishment to progressively restrict the use o the deathpenalty and reduce the number o o ences or which it may be imposed. Thosecountries were also called on to provide the Secretary-General with in ormationon their use o capital punishment and to respect international standards thatsa eguard the rights o condemned inmates. A subsequent resolution (A/63/168)on this matter was adopted in 2008, with increased support or the resolutionwith 106 States voting in avour, 46 against and 34 abstaining.

At its 65th

session in 2010, the General Assembly considered the SecondReport o the Secretary-General on a moratorium on the use o the death penalty(A/65/280), dra ted by the O ce o the High Commissioner or Human Rights(OHCHR). On 21 December 2010, it adopted a third resolution on a moratorium(A/65/206). This new resolution, which was approved by a broader margin osupport at 109 votes in avour and 41 against, with 35 abstentions, renews thecall to States that still maintain the death penalty to progressively restrict its use,to reduce the number o o ences or which it may be imposed, and to establish amoratorium on execution with a view to abolishing the death penalty. States whichhave abolished the death penalty are called upon not to reintroduce it.

With this background in mind, and the orthcoming debate at the 67th Session,OHCHR considered urther, sustained advocacy at the global level on amoratorium would be use ul so as to better in orm the debates on this yearsresolution. Though the resolution has seen increased support with each vote, theprospects or urther support could be improved through a series o global paneldiscussions on key elements o the death penalty debate.

The primary objectives o the panel discussions are to build and maintain themomentum on the resolution on a moratorium o the use o the death penalty;to share the experiences o countries where there have recently been positiveinitiatives in respect o the abolition o the death penalty (i.e., total abolition,consideration o abolition or implementation o a moratorium or restriction o thescope o capital o ences and those eligible or the death penalty); and to examinethe human rights dimensions o the application o the death penalty.


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THE GENERAL ASSEMBLY MEETING THAT ADOPTED THE LANDMARK RESOLUTIONCALLING FOR A MORATORIUM ON THE DEATH PENALTY, 18 DECEMBER 2007.

PHOTO: UNITED NATIONS/PAULO FILGUEIRAS


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2. MEMBER STATE DEvELOPMENTS SiNCE THE 2007

RESOLUTiONThere have been a number o developments in the use o the death penalty sincethe adoption o resolution 62/149 by the General Assembly on 18 December2007. The Secretary General submitted three reports (A/63/293, A/765/280and A/67/226) to the General Assembly on the implementation o its resolutionson moratorium on the use o the death penalty. 1 These reports con rmed theglobal trend towards abolition o the death penalty, the important role played bymoratoriums in those States that seek to abolish it and possibilities or urtherwork on the issue.

Currently around 150 o the 193 Member States o the United Nations haveabolished the death penalty or introduced a moratorium, either in law or inpractice. Since General Assembly resolution 62/149 in December 2007,Argentina, Burundi, Gabon, Latvia, Uzbekistan and Togo have abolished the deathpenalty or all crimes. In the United States o America, the States o New Jersey,

New Mexico, Illinois and Connecticut have

abolished the death penalty and the Stateo Oregon has introduced a moratorium.The Dominican Republic, which prohibitedthe death penalty in 1924, adopted anew constitution in January 2010 whichguarantees the right to li e and recon rmsthe prohibition o the death penalty.

Similarly, Djibouti had already abolished

the death penalty in 1995, but codi ed thisin its Constitution in 2010. In Australia,the Crimes Legislation Amendment (TortureProhibition and Death Penalty Abolition)

Act 2010 entered into e ect on 14 April 2010. It amends the Death PenaltyAbolition Act 1973 and extends the application o the current prohibition on thedeath penalty to state laws. In July 2011, Suriname in ormed that the recentlyrevised Penal Code contained no re erence to capital punishment.

1 Please also see reports o the Secretary General on the question o the death penalty submitted tothe Human Rights Council since 2007 (A/HRC/4/78, A/HRC/8/11, A/HRC/12/45, A/HRC/15/19and A/HRC/18/20), and the most recent quinquennial report o the Secretary-General (E/2010/10and Corr.1 and 2) submitted to Economic and Social Council in 2009. Attention is also drawn tothe reports on the use o the death penalty submitted by the Special Rapporteur on extrajudicial,summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman ordegrading treatment or punishment, to the General Assembly at its sixty-seventh session.

OPPOSITION TO THE DEATH PENALTY is not exclusive to any particular region, political system,world religion, culture or tradition. Federico Mayor,President o the InternationalCommission against theDeath Penalty


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A number o States are also in the process o abolishing or considering abolishingthe death penalty. Legislative amendments to abolish the death penalty are currentlypending in parliament in Burkina Faso, Bosnia and Herzegovina, Guatemala,Lebanon, Mali and the Russian Federation. Abolition o the death penalty was alsodiscussed as part o constitutional review processes in some States, includingGhana, Sierra Leone, Zambia, Zimbabwe, Tanzania, Trinidad and Tobago and Tunisia.

Since December 2007, Argentina, Benin, Brazil, Chile, Honduras, Kyrgyzstan,Mongolia2, Nicaragua and Rwanda have completed the rati cation (or accession)o the Second Optional Protocol to the International Covenant on Civil and PoliticalRights. Currently, there are 75 State parties to the Second Optional Protocol.

Some States stopped applying thedeath penalty or certain crimes. Forinstance, in July 2009, Kazakhstanadopted a new law reducing thenumber o provisions that imposedthe death penalty. In April 2011,the Parliament o Gambia abolishedthe death penalty or drug o ences.In February 2011, China passed

a law removing the death penaltyor thirteen non-violent economic crimes. Furthermore, in March 2012, Chinaamended its Criminal Procedure Law to include new procedures enhancing accessto legal aid, requiring the recording o interrogations, introducing mandatoryappellate hearings and a more rigorous review process in capital cases.

At regional level, on August 3, 2012 the Inter-American Commission on HumanRights (IACHR) o the Organization o American States (OAS), which includes the

United States, called or a moratorium on executions in the region and releaseda report reviewing key areas o concern about the death penalty.3 The Inter-American Commission has a mandate to promote respect or human rights in theregion and acts as a consultative body to the OAS in this area.

The A rican Commission on Human and Peoples Rights adopted a resolutionin November 2008 which urged States parties that retain the death penaltyto observe a moratorium on the execution o death sentences with a view toabolishing the death penalty.4 A study on the Question o the Death Penalty in

A rica, prepared by the Working Group on the Death Penalty o the Commission,was o cially launched in April 2012.5 2 Mongolia established an o cial moratorium on executions in January 2010.3 IACHR Calls on a Moratorium in theApplication of the Death Penalty , Press Release, 3 August 2012.4 ACHPR/Res 136 (XXXXIIII)5 http://www.achpr.org/news/2012/04/d46

A DEATH SENTENCE IS OFTEN IMPOSED ON LESS PRIVILEGED INDIVIDUALS who do not have su fcient access to e ective legal representation. High Commissioner or Human Rights

Navi Pillay


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HIGH COMMISSIONER FOR HUMAN RIGHTS NAVI PSPEAKS WITH PANELISTS KIRK BLOODSWORTH (MA VICTIM OF A WRONGFUL CONVICTION AND DEASENTENCE AND DOUGLAS MENDES, JUSTICE OF TBELIZE COURT OF APPEAL AT THE OHCHR PANEL EON ABOLISHING THE DEATH PENALTY ON 3 JULY 2AT THE UNITED NATIONS IN NEW YORK. ON THE LASSISTANT SECRETARY-GENERAL FOR HUMAN RIGIVAN IMONOVI.

PHOTO: UNITED NATIONS/NENAD VASIC


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HUMAN RIGHTS ACTIVISTS LIGHT CANDLES IN MULTAN, PAKISTAN ON 10 OCTOBER 2010IN OBSERVANCE OF THE WORLD DAY AGAINST THE DEATH PENALTY.

PHOTO: EPA/MK CHAUDHRY


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3. OHCHR ACTiviTiES TOWARDS THE UNivERSAL

ABOLiTiON OF THE DEATH PENALTYThe High Commissioner or Human Rights consistently advocates or theuniversal abolition o the death penalty, under her mandate to promote andprotect the enjoyment and ull realization o all human rights. In a statementissued in 2009, the High Commissioner recalled the reasons or her oppositionto the death penalty in all circumstances, including the undamental natureo the right to li e, the unacceptable risk o executing innocent people bymistake, the absence o proo that the death penalty serves as a deterrent,and the inappropriately venge ul character o the sentence (A/HRC/15/19,paragraph 7).

OHCHR rea rms that, pursuant to General Assembly resolutions on themoratorium on the use o the death penalty, it will continue to advocate andprovide support to Member States, civil society and other stakeholders withregard to the establishment o a moratorium by States on the use o the deathpenalty, with a view to abolishing it. OHCHR sends o cial communications to the

relevant authorities and issues public press releases addressing the question othe death penalty, and provides technical support to Member States, civil societyorganisation and other relevant interlocutors on the abolition o the death penalty.During her recent country missions, the High Commissioner had encouragingdiscussions with senior o cials in Barbados, Guatemala, Pakistan, SouthSudan and Zimbabwe about abolishing the death penalty or at least imposing amoratorium on it.

OHCHR also continues to advocate rati cation o the Second Optional Protocolto the ICCPR. In 2011, OHCHR supported Belgium and the World Coalitionagainst the Death Penalty to organise a side event at the eighteenth session o theHuman Right Council on Sharing best practices on rati ying the Second OptionalProtocol to the International Covenant on Civil and Political Rights, aiming at theabolition o the death penalty. In 2012, a workshop on the rati cation o theSecond Optional was organised in Cambodia.

OHCHR also contributed to and participated at various regional con erences

towards abolition o the death penalty organised with the support o thegovernments o the United Kingdom, Chile, Belgium, Spain and Austria. Theevents considered the progress towards abolition o the death penalty in theMiddle East and North A rica (MENA), A rica, Central Asia, the Caribbean andEurope regions. The objective was to gain more support at the General Assemblys

orthcoming debates on the moratorium resolution aiming or the total abolition othe death penalty.


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4. HiGHLiGHTS OF THE PANEL EvENT ON THE DEATHPENALTY

The rst OHCHR global panel event,Moving away from the death penalty Lessons from national experiences, opened by the Secretary-General and

addressed by the High Commissioner or Human Rights, ocused on two majorthemes:

a. The experiences o Member States that have taken action to abolishthe death penalty, establish a moratorium on its application or limit thescope o its application

b. The impact o the application o the death penalty rom a human rightsperspective in States retaining it, against a background o personswrong ully convicted.

The chairs or the two panels were Mr. Ivan imonovi, Assistant Secretary-General or Human Rights, and Mr. Christo Heyns, Special Rapporteur onextrajudicial, summary or arbitrary executions. The panelists representedgeographically diverse and rich legal traditions and practices, covering A rica,the Americas, Asia and Europe. The panelists or Session One were Mr. ValentinBagorikunda, Prosecutor-General o the Republic o Burundi, Ms. Blanca AdaStalling Dvila, Director-General oEl Instituto de la Defensa Pblica Penal of Guatemala , Mr. Federico Mayor, President, International Commission against theDeath Penalty, and Mr. Barry C. Scheck, Co-Director, The Innocence Project inNew York. Session Two panelists were Mr. Kirk Bloodsworth, victim o a wrong ulconviction and death sentence, Mr. Douglas Mendes, Justice, Belize Court oAppeal and the President o the Caribbean Centre or Human Rights, Ms. MaikoTagusari, Secretary-General, Centre or Prisoners Rights, Japan and Mr. CousinZilala, Executive Director o Amnesty International, Zimbabwe.

THERE ARE SEVERAL WAYS TO APPROACH THE ABOLITION OF THE DEATH PENALTY IN THE WORLD. There is the human rights-based approach, the social approach and the security approach. Leaders should see the beneft in at least one o these, i not all. Representative o Morocco


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UNITED NATIONS SECRETARY-GENERAL BAN KI-MOON SPEAKS AT THE OHCHR PANEL EVDEATH PENALTY ON 3 JULY 2012. LEFT IS ASSISTANT SECRETARY-GENERAL FOR HUMAN R.PHOTO: UNITED NATIONS/NENAD VASIC

The panelists drew on the experiences o senior o cials rom various regionswhich, in recent years, have made progress through either outright abolition or theimposition o a moratorium,de facto or de jure , or through narrowing the basis orimposition o the death penalty (restricting the category o o ences or o enders).The diverse range o speakers identi ed how these advances were made, and howsocietal and attitudinal obstacles at the national level were overcome.

Four major themes emerged rom the prepared statements and subsequentdiscussion among the panelists and those participating in the audience: whetherthe death penalty deters crime; wrong ul convictions and the irreparable harmcaused by executing the innocent; the moral and political leadership required tochange public opinion; and the important the role o international and regionalorganizations in shi ting public and political opinion.


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4.1 Deterrence

Though deterrence is o ten presented as a major reason or retaining the deathpenalty, a number o panelists and participants discussed the lack o any evidencein this regard, stating that the death penaltys perceived deterrence e ect has beenoverstated and manipulated or decades. Pro essor Barry Scheck o the UnitedStates pointed to the recent study o the National Academy o Sciences entitledDeterrence and the Death Penalty, which analyzed i there is a scienti c basis orthe assertion that the death penalty lowers homicide rates.6 The report concludedthat research to date on the e ect o capital punishment on homicide rates isnot use ul in determining whether the death penalty increases, decreases, or has noe ect on these rates. The key question is whether capital punishment is less ormore e ective as a deterrent than alternative punishments, such as a li e sentencewithout the possibility o parole. Yet none o the research that has been doneaccounted or the possible e ect o non-capital punishments on homicide rates.

These ndings are consistent with research undertaken in 1988, and updatedin 2002 by one o the leading authorities on the death penalty.7 A survey oresearch ndings on the death penalty and homicide rates concluded that it isnot prudent to accept the hypothesis that capital punishmentdeters murder to

6 Deterrence and the Death Penalty, National Research Council o the National Academies, TheNational Academies Press (2012). The United States National Academy o Sciences providesindependent advice to the government on matters related to science and technology.

7 R. Hood and C. Hoyle, The Death Penalty: A Worldwide Perspective , Ox ord, OUP, 4th edition 2008.


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a marginally greater extent than does the threat and application o the supposedlylesser punishment o li e imprisonment.8

As highlighted by one o the panelists, Mr. Cousin Zilala, even in situations o pastmass atrocities in A rica, such as those committed in Rwanda, national leadershave publicly stated that the death penalty is not an e ective deterrent, and thatthose countries wanted to break with the violence o the past when they abolishedthe death penalty. The Prosecutor-General o Burundi, Mr. Valentin Bagorikunda,made a similar point. Though the legislative assembly had originally believed the

death penalty did act as a deterrent, in actual actits deterrent e ect was notobvious and ailed to deter the mass violence in 1993 when civil war broke out.According to the Prosecutor-General, ollowing the abolition o the death penaltyin 2009, there has been no increase in the rates o crime.

Panelists also discussed the act that some categories o o enders would not bedeterred by the threat o being executed. Mr. Federico Mayor stated that many othose sentenced to death have mental health issues or were under the infuence o

alcohol or drugs at the time o the o ence, both o which suggest the de endantmay not have thought through the consequences o their actions or the possibilitythey may be executed. Moreover, Mr. Mayor stated, organized crime groups makecalculated decisions and believe that detection and convictions are unlikelywhile those who commit terrorists acts or political endsare o ten prepared todie or that cause[and] unlikely to be deterred by the death penalty.

8 Ibid at pg. 230

SESSION II PANELISTS AT THE OHCHR EVENT ON ABOLISHING THE DEATH PENALTY, 3 JUL(LEFT TO RIGHT):(1)MAIKO TAGUSARI, SECRETARY-GENERAL OF THE CENTRE FOR PRISONERS(2)COUSIN ZILALA, EXECUTIVE DIRECTOR OF AMNESTY INTERNATIONAL, ZIMBABWE;(3)IVAN IMONOVI,ASSISTANT SECRETARY-GENERAL FOR HUMAN RIGHTS;(4)CHRISTOF HEYNS, SPECIAL RAPPORTEUR ONEXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS;(5)KIRK BLOODSWORTH, VICTIM OF A WRONGFULCONVICTION AND DEATH SENTENCE, USA;(6)DOUGLAS MENDES, JUSTICE, BELIZE COURT OF APPEAL.PHOTO: UNITED NATIONS/NENAD VASIC


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4.2 Wrong ul Convictions and Innocence

The panel discussed the constitutional, institutional, and structural obstacles tothe air and accurate administration o the death penalty. What struck many wasthe growing evidence in the United States o miscarriages o justice in murdercases, including death penalty cases. While the United States was seen as ahighly developed legal system, with multiple judicial sa eguards, at both the stateand ederal level, these sa eguards in some instances ailed to provide adequateoversight o death penalty convictions. It was unclear to what extent some othe structural problems in the administration o capital punishment could be

remedied at all.Public con dence in the death penalty, particularly in the United States, has beenshaken in recent years by the number o people who have been released romdeath row with evidence o their actual innocence. Pro essor Scheck providedstatistics indicating that since the introduction o DNA testing in 1989, therewere 250 post-conviction exonerations o actually innocent persons throughDNA evidence, seventeen o those acing capital punishment.9 A review o theseconvictions also indicated that the average time spent in prison was thirteenyears; that many were denied parole because they re used to accept responsibility

or crimes they did not commit; 76 per cent were convicted based at least in parton eyewitness misidenti cation; and nineteen o the 250 actually pleaded guiltyto crimes they did not commit.

The signi cance o these post-conviction DNA exonerations is that the publichas come to realize that the state does not always get it right and that theDNA exonerations have generated learning moments about the root causeso wrong ul convictions poor eyewitness identi cation, alse con essions,unreliable orensic science ( ngerprints, bullets and bloodstains analysis),prosecutorial and police misconduct, inadequate de ense counsel, jailhousein ormers, witness perjury and racial bias.

However, according to Pro essor Scheck, well under 10 per cent o all criminalcases actually have biological evidence. Given the large numbers o convictionsthat were overturned just in cases involving DNA evidence, there is a possibility,according to Pro essor Scheck, that the total number o wrong ul convictions

using problematic evidence is much larger. He gave an example o a UnitedStates-based lawyer who was wrong ully accused o the terrorist bombing o a

9 250 Exonerated, Too Many Wrongfully Convicted. The Innocence Project (www.innocenceproject.org ) (2012). O the 250, 84 per cent were convicted o sexual assault, 29 per cent were convicted omurder and 16 per cent were convicted o both sexual assault and murder. For more on exonerations,see Exonerations in the United States, 1989-2012 , Report by the National Registry o Exonerations(May 2012), a joint project o the University o Michigan Law School and the Centre or Wrong ulConvictions at Northwestern University School o Law (www.exonerationregistry.org ).


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railway station in Madrid based upon a partial ngerprint and another case in Texas,in which Cameron T. Willingham was executed on the basis o unreliable arson

science.10 Having in mind that state police and orensics are at airly advancedlevels o expertise and yet still produce many cases o wrong ul convictions, Pro essorScheck said one can wonder, what is the situation elsewhere in the world?

Mr. Kirk Bloodsworth, a United States victim o wrong ul conviction and deathsentence, recounted his extraordinary story. He was convicted o murder based onmistaken identi cation by ve witnesses and spent almost nine years in prison,two o those on death row awaiting execution in a gas chamber. On a re-trial, his

death sentence was vacated and hewas sentenced to li e imprisonment.He recounted how he spent all ohis time in prison ghting to provehis innocence, signing letters, KirkBloodsworth A.I.M an innocentman.

While undertaking his own research to

prove his innocence he came across abook that chronicled DNA testing thatwas used to solve a series o killingsin England. O DNA, he stated, i itcan convict you, it can set you ree.When his lawyer requested crime scenematerial containing biological material,

the prosecutor responded that it had been destroyed. It was eventually ound in thechambers o the judge rom the second trial.

Following DNA testing he was nally exonerated and released. The DNA testingidenti ed the actual perpetrator, someone who was housed in the same prison asMr. Bloodsworth. It is important to remember that had evidence or DNA testingnot been available, I would still be in prison today. And he ended his commentspower ully, by stating, make no mistake about it. I am not here because thesystem worked. I am here because a series o miracles led to my exoneration.

Re erence was also made to the recent publication by Colombia University on theconviction and execution o Carlos DaLuna in Texas in 1989. 11 The detailed studysuggests another man, Carlos Hernandez, was the actual killer, and that a

10 Trial by Fire, Did Texas Execute an Innocent Man? by David Grann, The New Yorker, September 7,2009.

11 Los Tocayos Carlos, Columbia Human Rights Law Review, Vol. 43, Number 3, Summer 2012.

I AM NOT HERE BECAUSE THE SYSTEM WORKED. I am here because a series o miracles led to my exoneration. Not every person wrong ully convicted o a capital crime

is as blessed. I a country can not ensure that they will not kill an innocent citizen, they should not kill at all. Mr. Kirk Bloodsworth


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collection o errors witness misidenti cation, ine ective assistance o counsel,prosecutorial misconduct and a poor orensic investigation resulted in an

innocent man being executed.

Mr. Federico Mayor stated it was inevitable that injustices would happen sincecriminal justice systems are designed, and run, by people. He stated someconstituencies would assert that the likelihood o the innocent being executed issmall. Nevertheless, as the cases in the United States have shown, even highlydeveloped legal systems can convict the innocent despite a number o sa eguards.Europe had recognized this when it abolished capital punishment. Miscarriages ojustice risk undermining public con dence and respect or the judicial system.

Ms. Blanca Aida Stalling Davila, Director-General oEl Instituto de la Defensa Publica Penal of Guatemala, explained that the irregular trial procedures and thelack o any meaning ul process or a petition or a pardon or two persons whowould be executed led to an outcry about the un airness o the death penalty. Thecases were eventually taken up in 2005 by the Inter-American Court o HumanRights, which held that Guatemala could not carry out executions without aclemency procedure in place and established criteria or such a procedure. Thisdecision resulted in the commutation o all death sentences in the country and ade acto moratorium has been in place since the 2005 decision.

In Burundi, according to the Prosecutor-General Bagorikunda, much o thesupport or the abolitionist movement arose ollowing the planned execution othree de endants in order to strengthen national unity. The proposed move hadthe opposite e ect, resulting in public outrage as some o the de endants werepotentially innocent.

In the Caribbean, according Mr. Douglas Mendes, President o the CaribbeanCentre or Human Rights, though among the public there is broad support orthe death penalty, such support diminished signi cantly when the possibility owrong ul conviction was raised.

Finally, Pro essor Scheck recommended an international human right to challengea conviction and death sentence when new evidence emerges a ter the casehas concluded. He stated that even in the United States, state and ederallaw is unclear as to whether post-conviction evidence o innocence is a viableconstitutional claim.12

12 Herrera v. Collins , 506 U.S. 390 (1993), is a case in which the United States Supreme Court (ina 6-3 decision) held that a claim that the United States Constitutions ban on cruel and unusualpunishment prohibits the execution o one who is actually innocent is not ground or ederal habeascorpus relie . The majority voiced the concern that a new trial may be less reliable than the originaltrial, responding in the negative to the question as to whether a airly convicted and there ore legallyguilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate hisguilt anewnotwithstanding his ailure to demonstrate that constitutional error in ected his trial?


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MEMBERS AND SUPPORTERS OF THE ASSOCIATION FOR JUSTICE AND MERCY DEMONSTRLEBANESE PARLIAMENT AS THEY MARK THE WORLD DAY AGAINST THE DEATH PENALTY10 OCTOBER 2011.PHOTO: EPA/WAEL HAMZEH

4.3 Leadership and Public Opinion

The global panel event heard about how crucial moral and political leadership wasto making the case or abolition or moratorium. Experience shows how leadership

rom politicians, religious leaders, leaders o civil society and individuals could beutilized to shi t opinion.

In Zimbabwe, where a consultation process or a new constitution is under way,a coalition o media and civil society, such as the Zimbabwe Lawyers or HumanRights, the Zimbabwe Human Rights Association, the Zimbabwe Human RightsNGO Forum and others, have ormed an Anti-death Penalty Coalition. TheCoalition has launched a public awareness campaign and engaged theatre groups,who are carrying out public education on the death penalty through street theatre.

In addition, as part o the constitutional review process, the current Minister oDe ense in Zimbabwe has publicly stated how he traced his opposition to thedeath penalty to his own experience as an inmate on death row be ore Zimbabwesindependence.


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Some participants noted States where public opinion was strongly in avor o thedeath penalty and asked what the response should be. Mr. Cousin Zilala statedpublic opinion is based on emotion rather than rationale, but criminal justice

should serve public sa ety and rehabilitation o the o ender, not eelings ovengeance. More importantly, public opinion should be shaped by leadership.

The Prosecutor-General o Burundi discussed the show o leadership exhibitedby President Pierre Nkurunziza, as well as the pivotal role played by the CatholicChurch, media and NGOs in making the case or abolition. In Burundi, the publichad come to believe that the death penalty was primarily imposed on vulnerablepopulations, which is itsel an injustice. In addition, public sentiment was o theview that an alternative o li e imprisonment o ered the possibility o conditionalrelease or judicial review i new evidence emerged.

As Mr. Federico Mayor stated, the death penalty can be abolished even whenpublic opinion seems to avor such punishment as evidenced in Canada, France,Germany and the United Kingdom. He emphasized the importance o the media,social networks and local actors in infuencing public views.

In South A rica, Mr. Cousin Zilala stated that although there was public supportor the death penalty, it was the Constitutional Court which took the step to

abolish the death penalty in 1995, declaring it was incompatible with the humanrights culture in South A rica. The court stated that judges and politicians couldserve as role models, crystallizing what is right, not what is popular.

In the Caribbean, according to Mr. Douglas Mendes, it was legal challenges to theadministration o the death penalty that resulted in most o the region imposinga moratorium. Those challenges primarily related to the lengthy delays in carryingout executions and the mandatory element o imposing a sentence o deathwithout regard or the personal circumstances o the o ender and the o ence.

In the United States, Pro essor Scheck talked about the role played by a coalitiono religious groups, minorities and progressives in in orming the public aboutthe major errors in the administration o the death penalty and real alternatives,including li e sentences without parole. Moreover, the media is an important

ABOLITION IS NECESSARY TO PROTECT HUMAN RIGHTS but human rights are independent o public opinion. Mr. Cousin Zilala, Amnesty International, Zimbabwe


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messenger on miscarriages o justice cases. In addition, in some States such asNew Jersey, New York, Illinois and Connecticut, crucial support came rom statebar associations, state assemblies and governor-appointed special commissions.

In Guatemala Ms. Blanca Alda Stalling Davila talked about the strategicalliances among NGOs, civil, legal and religious groups (i.e., the Human RightsLegal Action Center, the Institute o Public Criminal De ense, GuatemalanInstitute o Comparative Studies in Criminal Sciences, the O ce o HumanRights o the Archbishop o Guatemala) that provided the public with in ormationon the human and judicial mistakes in capital punishment. She thoughteducation on the errors in the administration o the death penalty was the key tochanging opinion. Judges, legal associations and universities have also raised thechallenges to the administration o the death penalty, supported by the UnitedNations eld presence and international NGOs in providing unding, human rightstraining and in ormation on international human rights developments relating tothe death penalty.

Ms. Blanca Alda Stalling Davila also re erenced the attempts played by theExecutive Branch, including government leaders, to push or outright abolition

AN ACTIVIST CALLS UP PEOPLE TO SIGN A PETITION AGAINST THE DEATH PENALTY IN FRSUPREME COURT ON CAPITOL HILL, WASHINGTON, USA, JULY 2008.

PHOTO: EPA/SHAWN THEW


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and processes to better regulate pardons and clemencies. In 2010, Congresspassed a law which could have led to the resumption o the use o the death

penalty. However, the President vetoed it and in December o that year, Guatemalavoted in avour o the UN General Assembly resolution calling or a moratorium onthe use o the death penalty.

A number o panelists raised concerns with the lack o transparency in somecountries regarding the application o the death penalty, saying only moreopenness would allow the public to orm more meaning ul views o its application.In Japan, Ms. Maiko Tagusari, Secretary-General o the Center or PrisonersRights, noting that Japan has one o the lowest homicide rates in the world,stated that executions are conducted in secret, o ten with no prior notice to thede endant or victims amily. According to Ms. Tagusari, there is no clarity onwhich de endant is next in line or execution since the State has not publiclyarticulated how it selects death row inmates or execution. Nor is there anyin ormation regarding conditions o detention other than that death row inmatesare placed in solitary con nement, many or decades.

4.4 Role o International and Regional Organizations

Panelists discussed the important role o international organizations and regionalbodies on the debate around the death penalty.

In A rica, abolition o the death penalty is a goal promoted by the A ricanCommission on Human and Peoples Rights, a body tasked with the protectionand promotion o human rights and peoples rights in A rica, as well asinterpretation o the A rican Charter or Human and Peoples Rights. In 2011,the A rican Union Commission Chairperson, Mr. Jean Ping o Gabon, and theChairperson o the A rican Commissions Working Group on the Death Penalty inA rica, Ms. Zainabou Sylvie Kayatesi o Rwanda, publicly stated that the deathpenalty violated the A rican Charter.

In Latin America, the Inter-American Court o Human Rights has played a majorrole in bringing about the moratorium in Guatemala. In 2005, it issued its

decision in two cases, one o which was the review o a death sentence in a non-homicide case. The Court was critical o the limited due process to those personsacing a death sentence, including the ailure o the government to regulate or

e ective clemency petitions. It was also highly critical o the application o adeath sentence in a non-homicide case. The decision had a power ul impact inGuatemala, with the decisions being widely discussed among many sectors osociety. The decision was ollowed by workshops, con erences, university orumsand trainings or legal and non-legal actors.


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Mr. Federico Major emphasized the importance o regional organizationspromoting abolition e orts, highlighting the Council o Europe, the A rican

Union and the Community o Latin American and Caribbean States (CELAC). Theimportant role played by the United Nations Human Rights Committee and thespecial procedures mechanism o the United Nations Human Rights Council werealso explored.

Many panelists talked about the act that none o the international tribunalsapply the death penalty, not even in cases o genocide. This includes the ad hocinternational tribunals or the ormer Yugoslavia (ICTY), and Rwanda (ICTR),the Extraordinary Chambers in the Courts o Cambodia, the Special Tribunal orLebanon, the Special Court or Sierra Leone and the International Criminal Court.Mr. Federico Major thought this sends a power ul abolitionist message to alljudiciaries around the world.

Next steps for OHCHR

The global panel event is the rst o a series o activities OHCHR will undertakeon the issue o the death penalty. In addition to some o the activities describedabove, including advocacy regarding rati cation o the Second Optional Protocolto the ICCPR, preparation o the Secretary-Generals death penalty report tothe General Assembly and participation in various regional con erences towardsabolition o the death penalty, OHCHR will ollow up the Panel event with threeevents on issues relating to discrimination, wrong ul conviction and deterrence.


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THE AUDIENCE LISTENS TO SECRETARY-GENERAL BAN KI-MOONSPEAKING AT THE OHCHR PANEL DISCUSSION ON ABOLISHINGTHE DEATH PENALTY, 3 JULY 2012.



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5. SPEECHES AND STATEMENTS

5.1 Secretary-General Ban Ki-moon

Delivered on 3 July 2012 at the OHCHR panel on abolition of the death penalty,United Nations, New York

I thank the O ce o the High Commissioner or Human Rights or organizing thisimportant event.

And I welcome the participation o Mr. Federico Mayor, President o theInternational Commission Against the Death Penalty. Civil society organizations have shown commendable leadership in working to endthe death penalty.

In 2007, the UN General Assembly took a signi cant step toward the abolition ocapital punishment and the protection o human rights when it endorsed acall or a worldwide moratorium on the death penalty.

Since that landmark vote, the trend against capital punishment has become everstronger.

The sentiment towards abolition nds echoes in every region and across legalsystems, traditions, customs and religious backgrounds.

There are now 74 Parties to the Optional Protocol o the International Covenant onCivil and Political Rights aimed at ending capital punishment.

More than 150 States have either abolished the death penalty or do not practice it.

In 2011, only 20 Member States conducted executions.

Since the 2007 General Assembly resolution, Argentina, Burundi, Gabon, Latvia,Togo and Uzbekistan have abolished the death penalty.

In the United States, Illinois and Connecticut became the 16th and 17th states toreject death as a punishment.

I welcome this trend and encourage Member States who practice the deathpenalty or retain it in law to ollow suit.

The right to li e is the most undamental o all human rights. It lies at the heart ointernational human rights law.


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The taking o li e is too absolute, too irreversible, or one human being to infict iton another, even when backed by legal process.

Where the death penalty persists, conditions or those awaiting execution areo ten horri ying, leading to aggravated su ering.

In ormation concerning the application o the death penalty, including secret trialsand executions, is o ten cloaked in secrecy.

And it is beyond dispute that innocent people are still put to death.

The United Nations system has long advocated abolition o the death penalty or at a minimum and in the interim moratoriums and restrictions on its use toonly the most serious crimes.

Yet the death penalty is still used or a wide range o crimes that do not meet thatthreshold.

My orthcoming report on the death penalty expresses particular concern that 32States retain the death penalty or drug-related o ences.

I am also very concerned that some countries still allow juvenile o enders underthe age o 18 at the time o the alleged o ence to be sentenced to death andexecuted.

My Guidance Note o 2008 on the UN Approach to Rule o Law Assistance statesthat the UN will neither establish nor directly participate in any tribunal thatallows or capital punishment.

International and hybrid criminal tribunals or Cambodia, the ormer Yugoslavia,Lebanon, Rwanda and Sierra Leone do not provide or capital punishment.

Nor does the International Criminal Court.

The call by the General Assembly or a global moratorium is a crucial steppingstone in the natural progression towards a ull worldwide abolition o the deathpenalty.

Let us now do our utmost to put a nal end to this practice.

I wish you a productive discussion.

Thank you.


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5.2 High Commissioner or Human Rights, Navi Pillay

Delivered on 3 July 2012 at the OHCHR panel on abolition of the death penalty,United Nations, New York

I would like to extend a warm welcome to all o you, and thank you orparticipating in this event organized by my O ce on Moving away rom the deathpenalty Lessons rom national experiences.

The global trend and position on the death penalty have evolved over the years. Anincreasingly large number o Member States rom all regions have acknowledgedthat the death penalty undermines human dignity, and that its abolition, or atleast a moratorium on its use, contributes to the enhancement and progressivedevelopment o human rights.

There is no right more sacred than the right to li e. Since the beginning o mymandate, I have engaged in a dialogue with many States on this issue. During myrecent country missions, I had encouraging discussions with senior o cials aboutabolishing the death penalty or imposing at least a moratorium on it. In addition,my O ce works at the national level to stimulate the debate, including throughseminars which provide a orum or a core group o scholars and practitioners thatcome orward with convincing arguments in avour o the abolition o the deathpenalty. With regard to retentionist States, international law requires as a minimum ullcompliance with the clear restrictions prescribed in particular in article 6 o the

International Covenant on Civil and Political Rights (ICCPR). According to thisprovision, its application shall be limited to the most serious crimes. It shouldbe recalled that this term has been interpreted to mean that the death penaltyshould only be applied to the crime o murder. There ore, in those States thathave not yet abolished the death penalty, the use o capital punishment or drugo ences or or o ences carried out in connection with transnational organizedcrime is prohibited i the o ences in question do not involve a taking o li e.Furthermore, the death penalty cannot be imposed or crimes committed by personsbelow eighteen years o age and shall not be carried out on pregnant women.

States that have maintained the death penalty must ensure scrupulous respect odue process guarantees. The imposition o a death sentence upon conclusion oa trial in which the provisions o article 14 o the ICCPR have not been respectedconstitutes a violation o the right to li e. Those accused o capital o ences mustbe e ectively assisted by a lawyer at all stages o the proceedings. Furthermore,executions should not take place when an appeal or other recourse is pending,


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and there must be the possibility or the individual concerned to seek pardon orcommutation o the sentence.

Non-compliance with the principle o non-discrimination is also a major concernwhen considering the application o the death penalty. A death sentence iso ten imposed on less privileged individuals who do not have su cient accessto e ective legal representation. Membership o a minority has o ten beenidenti ed as a signi cant actor in the decision that led to the sentence o deathand execution. In addition, due regard is o ten lacking or the UN Sa eguardsGuaranteeing Protection o those Facing the Death Penalty, approved by ECOSOC

in 1984, which prohibit the carrying out o the death penalty on persons whohave become insane. Methods o execution should meet the standards o least possible physical andmental su ering. Otherwise, the execution will constitute a violation o reedom

rom torture, inhuman or to cruel, inhuman or degrading treatment or punishment.It is di cult to think o a humane method o executions that can meet thesecriteria. Also troubling are the length and conditions imposed on individuals on

death row.Judges o ten complain that executive stipulations o mandatory sentences odeath or speci c crimes, is inter erence with judicial discretion to determinethe appropriate sentence. The sentence o death is so grave that it should not bemandatory. Nor can it be carried out in secret, which would make it amount toinhuman treatment o the executed persons amily.

A key obligation to bear in mind or any State that has itsel abolished thedeath penalty is not to expel, extradite or otherwise remove rom its jurisdictionindividuals who ace a real risk o a death sentence and execution in the countryto which they are removed, without ensuring that the death penalty would not becarried out. Extradition or other trans er to such a country accordingly requiresthe procurement o e ective guarantees or assurances to the e ect that, at aminimum, the death penalty, i imposed, will not be carried out.

Finally, it should be recalled that the lack o data with regard to the number oexecutions or the number o individuals on death row is a serious impedimentto any national debate that may lead to a move towards abolition o capitalpunishment in a given State. It will also be important or the e ectiveness andtransparency o such a debate to ensure that the public is provided with all sideso the arguments and with in ormation and accurate statistics on criminality andthe various e ective ways to combat it, short o the death sentence.


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It is interesting to note that in the early 1960s, when dra ting the Covenant, itsauthors were already paving the way or the move in international law towardsthe abolition o the death penalty. The last paragraph o article 6 o the ICCPRprovides that nothing in this article shall be invoked to delay or prevent theabolition o capital punishment in any State party to the Covenant. This move,

which materialized in 1989 through the adoption o the Second Optional Protocolto the International Covenant on the Civil and Political Rights, to-date rati edby 74 States, is also refected in a number o regional instruments supportingthe abolition o the death penalty. I call upon States that have not yet done soto rati y the Second Optional Protocol, or as a strict minimum to place a ormalmoratorium on the use o the death penalty until they are ready to work towardsits abolition.

I am grate ul to panelists that have come rom all parts o the world to share theirexperience with us today, in particular regarding the process o transition romcapital punishment to abolition, or their experience, at times close or personal, oinjustice related to the imposition o the death penalty.

HIGH COMMISSIONER FOR HUMAN RIGHTS NAVI PILLAY ADDRESSES THE OHCHR PANEL THE DEATH PENALTY AT THE UNITED NATIONS IN NEW YORK, 3 JULY 2012.



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O fce o the High Commissioneror Human Rights

Geneva :Palais des NationsCH 1211 Geneva 10Switzerland

New York:United Nations

New YorkNY 10017United States of America

www.ohchr.org

Documents

Moving Away From Death Penalty_web