The Politics of the Death Penalty in Countries in Transition

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  • 2013•09•20

    Interviewed by Stephan Schmidt

    Madoka Futamura

    Photo: Stephan Schmidt/UNU

    It was condemned as “unfair” by Amnesty International, and regarded by some as a “show trial”. In October 2005, the Iraqi Special Tribunal began hearing the case of the fifth President of Iraq, Saddam Hussein Abd al-Majid al-Tikriti, who was charged with war crimes, crimes against humanity, and genocide. Found guilty and sentenced to death by hanging, Saddam Hussein was executed on 30 December 2006.

    This trial, and its particularly curious progression, captured the interest of United Nations University (UNU) researcher Madoka Futamura, an Academic Programme Officer in the UNU Institute for Sustainability and Peace (UNU-ISP) who focuses on international peace and security, and transitional justice in countries undergoing democratization and post-conflict peacebuilding.

    Iraq was at that time, and still is, a country of constant political and social transition. Dr. Futamura applied her research background to the debate about the death penalty, justice, and human rights and went to work on a book entitled The Politics of the Death Penalty in Countries in Transition.

    Co-edited by Futamura and Nadia Bernaz, this recently launched book includes contributions by 10 academics and practitioners, including criminal and human rights law scholar William Schabas, who wrote the concluding chapter.

    We spoke with Dr. Futamura about the death penalty and the issues and cases (of Argentina, Cambodia, the Republic of Korea, Bosnia and Herzegovina, Rwanda, Sierra Leone, Iraq and the Northern African states) with which the book deals.

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    What compelled you to do research on the topic of the death penalty?

    The death penalty in the international setting is often approached from the perspective of human rights concerns — that is, in terms of it being a violation of basic rights and human dignity. However, it is also closely connected to security, governance, justice, and other social and political matters. I thought much about this at the time of Saddam Hussein’s trial and execution in 2006, which created a huge debate around the world regarding the pros and cons of the ways in which the death penalty sentence was reached and implemented.

    Despite some flaws from the perspective of an international standard of justice, the execution was supported and welcomed by the Iraqi people who wanted to be rid of their former head of state who was responsible for terrible human rights abuses and war crimes. If this is one form of justice that people feel a need to carry out, how should the international community respond to it? This made me rethink the international debate on the death penalty and its abolition based on a human rights perspective.

    What compelled me is that in certain cases there are other perspectives to consider. This research project is unique in focusing on countries in transition, either in the process of democratization or emerging out of armed conflicts, where people and society face big social and political changes. Those countries face various tasks, such as restoring and maintaining security, reforming institutions, achieving justice for past violence, and reconciliation, rebuilding infrastructure, and so on. And in such contexts, quite a few countries abolish the death penalty, face pressure to abolish it, or else resort to the death penalty in order to tackle those tasks, as the case of Iraq shows.

    In these cases, death penalty policies clearly are political, because states engage in a process for balancing and reconciling various policies and needs. By focusing on these country cases, the research tried to incorporate political, social, ethical, security, as well as human rights considerations to examine the death penalty policy.

    After compiling all the cases, can you now derive the main characteristics of “retentionists” and “abolitionists”?

    The research illustrates some common elements impacting on death penalty policies, but also highlights the unique and complex interactions among those elements which make each country case unique and special. Under a socially and politically unstable context, the death penalty can be regarded as necessary for deterring serious crimes. Some governments may even see it as an ultimate tool to uphold social order.

    But on the contrary, because of a politically unstable situation, some countries see the abolitionist policy as a way to enhance their legitimacy as a newly emerged democratic regime. Quite a few new governments abolish the death penalty, expecting it to serve as a symbolic demarcation from the evil and authoritarian past regime. In this context, some policymakers expect that abolition would illustrate to the international and domestic community their commitment to human rights (as in South Africa and the Republic of Korea).

    In the cases of post-communist countries in the late 1980s and the early 1990s, countries decided to abolish the death penalty in order to gain political and economic benefit from the international community, such as membership in the EU. The EU is heavily committed to death penalty abolition, which is a condition for membership.

    Regional political dynamism is interesting. Cambodia abolished the death penalty along its path towards liberal democracy, but is very sensitive to the political climate of the ASEAN, which consists of many retentionist countries. One of our contributors pointed out that this can be one of the reasons the country has not yet ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at the abolition of the death penalty.

    Retentionist states often refer to the public’s, and especially victims’, support for the death penalty as a reason for keeping it. And indeed, in cases like Iraq and post-genocide Rwanda, it is claimed that many people regarded the death penalty as necessary for justice and reconciliation. But in other cases such as Cambodia, victims, more than 30 years after the actual crimes, do not actively support the death penalty and prefer forgiveness.

    These examples show that there are various factors, other than the human rights consideration, that underpin death penalty policy, and those factors become even more conspicuous under transition, but in different ways depending on specific characteristics as well as the stage of transition.

    The book states that “retribution is necessary for healing victims”. What evidence is there to demonstrate or deny the validity of this assertion?

    It is a classical debate on what punishment is all about — why we need punishment. One of the major arguments for punishment revolves around the victims and their families’ longing for justice. Some regard punishment as necessary for redressing the convicted criminal. Punishment is also regarded as necessary for keeping the social order. They are all connected to some extent, though.

    Victims carry anger and frustration, which needs to be addressed in order for them to move forward and achieve reconciliation. Without appropriate punishment, some of them may go to the streets and take their own revenge on the perpetrator of the alleged crime, which will destabilize society.

    A question here is whether the death penalty serves as “appropriate” punishment. As I mentioned, many of the retentionist countries do refer to victims’ demands as a reason for their keeping the death penalty. But no one can say for sure whether the death penalty can heal victims of heinous crimes.

    Right after the genocide in 1994, Rwanda claimed that it needed the death penalty to achieve national reconciliation. This is why Rwanda rejected the United Nations’ International Criminal Tribunal (ICTR) that it originally requested — because the Tribunal would not allow the death penalty. The death penalty issue even harmed the UN-Rwandan relationship over peacebuilding thereafter.

    Promoting the abolishment of the death penalty is one of the UN’s human rights agendas and, since 2007, the General Assembly has adopted four resolutions that call on States to establish a moratorium on the use of the death penalty and eventually abolish it. Recently, Secretary-General Ban Ki-moon also urged Member States to move towards abolition.

    However, as I mentioned, the UN’s commitment to abolition created tension with Rwanda and harmed its peacebuilding operation on the ground. In the case of Iraq’s Saddam Hussein trials, the UN did not participate in the creation of the Special Tribunal nor support the subsequent legal procedure, because the government of Iraq insisted on adopting the death penalty. One of the book’s contributors points out a problem in the fact that international organizations did not assist in this important moment in Iraqi judicial reform because of their abolitionist agenda.

    There are potential dilemmas that the UN may face in pushing forward the abolitionist agenda when targeting countries that are grappling with transitional justice. The UN’s approach to transitional justice is also ambivalent in this sense: while it upholds an international standard of justice, it also emphasizes the local needs and ownership for pursing justice. If the local demands are for the death penalty as a tool for transitional justice procedure, how should the UN react?

    Having said that, interestingly, Rwanda eventually found its way towards abolishing the death penalty. We can see this as a positive impact of the ICTR and as a potential impact that transitional justice mechanisms have on death penalty policy. In that case, Sierra Leone’s Truth and Reconciliation Commission also played a crucial role. It issued the final report recommending that the government abolish the death penalty. Although the government refused to follow it, the report surely encourages the abolitionist movement.

    What does an informed society need to know about the death penalty?

    One area where the gap between the existing research and public perception exists is on deterrence. Many of those societies that support the death penalty seem to believe in the deterrent effect of the death penalty. But existing research indicates that there is no scientific evidence that serious crimes decrease as a direct cause of the execution of the death penalty.

    In that sense, it is rather ironic that recently in Japan, we had someone who had gone on a killing spree who confessed that one of their motivations was that they wanted to be sentenced to death. In the end, they have been sentenced to death and executed in a relatively short period of time. Something is not quite right about this…

    At the same time, those who work for the abolition of the death penalty also need to be aware that the death penalty is not only a human rights issue but also encompasses many other issues related to security, social order and justice that need to be thought through when thinking about death penalty policy, especially in times of social and political transition.

    The case of Bosnia also reminds us that focusing only on abolition itself is insufficient. What one of the book’s contributors pointed out is that in Bosnia, abolition wasn’t the problem, but rather the problem came after abolition because the international community was so concerned with abolition itself that they failed to monitor whether the alternative sentence to the death penalty is appropriate, coherent and fair. Confusion over alternative punishments was a serious issue as the country was dealing with a number of war crimes trials. Caring less about improving the condition of prisons and imprisonment procedures is another emerging post-abolition problem, which seems to be often ignored.

    Is there any country case that stuck with you in particular?

    I learned a lot from each country case, as each offered a unique and much more nuanced story than I originally assumed. As I mentioned, the case of Bosnia tells us that abolition should not be regarded as the goal itself. The case of Argentina shows that abolition can be a long, two-step process, where abolition for ordinary crime occurs in the middle of democratization, but abolition for all crimes was the process of strengthening civilian control and the fight with the legacy of the military justice system thereafter, which took decades. The case also made me think of the meaning and time span of the transition and democratization.

    One recurring issue in the research was the gap between a government’s policy and public opinion. Several contributors pointed out the fact that governments do abolish the death penalty, despite public support for it. The Republic of Korea is an interesting case where the government seeks the way towards abolition, while there is strong public support for the death penalty. Cases in Argentina and Bosnia show that even after abolition, whenever societies face an increase in crime rate or heinous crimes, there emerges a movement to reinstate the death penalty. Several contributors analyse whether a government’s abolitionist policy, against the will of its people, is a “paradox” or a healthy state of democracy.

    Japan is one of the few democratic countries with a positive record of human rights and peace promotion that retains the death penalty. Can you briefly explain how this has come to be, and what are your thoughts?

    Japan and the US are examples showing human rights and democracy may not be the only factors for abolition. The death penalty is a little bit of an awkward theme here in Japan for various reasons. This research project builds on the existing international debates and research that are mainly done with a human rights approach. However, my impression is that many of Japanese people are not very aware of such an international debate — i.e., the death penalty as a human rights issue.

    Public debate here tends to focus on the evilness and heinousness of crimes, and agony of the victims and their families. For example, we often hear comments from victims’ families that they do not want to see the criminals alive. This kind of statement captures public attention more.

    The latest opinion poll from 2009 showed that 86 percent of the Japanese population accepts the death penalty. However, the Japanese perception of the death penalty may be more nuanced than the figure shows. The figure may include those who accept the death penalty only for extreme cases, or as a necessary evil.

    Japanese criminal law does not offer any punishment between the death penalty and an indefinite prison term, which, in practice, is not imprisonment for life. Availability of appropriate alternative punishment is one of the important things to take into consideration when we think about the Japanese policy and attitude on the death penalty.

    The death penalty is not a socially debated topic, and ways in which death penalty sentences are reached and carried out, and the situation of criminals on death row, are not well-known here. The situation started to change slightly in 2009, when Japan introduced trial by jury, which made people aware that they themselves may be called upon to sentence a defendant to death and wonder if they are prepared to do so. Also at around the same time, the then-justice minister decided to open the place of execution for journalists, and pictures of the execution room created a bit of debate. These could be a good start for public debate, but eventually it quieted down again.

    I wonder whether people’s attitudes change if they become more aware of international debate and trends, and the fact that Japan is criticized for being among a minority practicing the death penalty. [As of December 2012, the total number of states that have abolished the death penalty for all crimes was 97; 8 others have abolished it for ordinary crimes only (while retaining it for exceptional crimes, such as crimes under military law or crimes committed in exceptional circumstances, including wartime crimes); and 35 states are regarded as abolitionist in practice.]

    What impact do you hope to achieve with this book?

    This project aims at broadening understanding and approaches to the death penalty by focusing on countries under transition that are facing social and political transformation. Such a context influences death penalty policy in many ways.

    The book does not argue towards abolition or retention, but intends to observe the multi-faceted dimensions of death penalty policy in countries in transition. Some contributors do express their abolitionist stance clearer than others, but the chapters are written from analytical perspectives. This is the role that UNU as an academic research institution should take. It is a highly disputed and contested area, and we are in a position to analyse such a topic from an academic perspective.

    The research shows that the death penalty is a complex issue relating to many other social and political agendas, especially in countries in transition. The UN and the international community are currently involved in peacebuilding and state-building processes, and the research results need to be shared not only with those working on the death penalty but more widely with those engaging in peacebuilding and transitional justice.