Friday, October 07, 2011

Death Penalty and Thailand's Universal Periodic Review

I have been analyzing the references to the death penalty in the Thai UPR process, which took place on 5th October in the headquarters of the UN Human Rights Council in Geneva. In all ten countries raised the issue:
France: moratorium + abolition. good basic reference
Nicaragua: abolition, even for grave crimes
Canada: passing reference only
Slovakia: moratorium + abolition + prison conditions. excellent
Turkey: amazing. reference to human rights plan and the issue of death penalty for drugs
Switzerland: good basic reference
Argentina: good basic reference
Hungary: best reference, mention of human rights plan, abolition, and application of death penalty to non-violent crimes
UK: Advance question on reference to death penalty in 2nd National Human Rights Plan and on 2nd OP of ICCP
Czech Republic: Advance question on 2nd OP of ICCPR

Glaring absence of Netherlands who financed UCL projects against death penalty.
Surprisingly strong support from Slovakia, Turkey, and Hungary.

Wednesday, October 05, 2011

Letter to US Ambassasor in Thailand

October 4, 2011 11:33 am, Nation Newspaper
On September 21, in Jackson, Georgia, the 42-year-old Afro-American Troy Davis was put to death.

The execution of Davis has shocked the world. You may reply that the execution was "prescribed by law and after due process". This is no longer a sufficient reply. The great majority of members of the world organisation you helped found already formally request a moratorium on such actions. International law continues to require ever more narrow interpretation of the phrase "most serious crimes" of Article 6.2, edging closer to an outright rejection of capital punishment.

"Any man's death diminishes me," wrote John Donne. Personally, I felt the diminishment. All capital punishment is abhorrent. The executioners speak with contempt of the "weaklings" who cannot stomach judicial killing. In fact it is the strong who object, and do not just turn away with a tear in the eye.

The reason that the death penalty is a necessary deterrent has long been shown to be a falsehood. The arguments are well known. One must counter that the state, or any human agent, does not have the authority to deprive anyone of life. It is thus written in the highest rule of life, the Universal Declaration of Human Rights.

You may respond further that it is the duty of an ambassador to uphold the laws of the state she represents. I think not. The death penalty is a matter of conscience, and no state may impose it on any of us. You lived in the Philippines at the time that the death penalty there was abolished. For one reason or another you may not risk a personal opinion on the issue, but at least you may report the revulsion felt throughout the world to the execution of Troy Davis. He spent 20 years on the ill-named "death row". We can have no real understanding of the horror of such an experience. I can guess a little from conversations with the condemned in Bang Kwang prison. Madame Ambassador, you know the French language; doubtless you have read in its emotive original Le Dernier Jour d'un Condamne by Victor Hugo. You may be familiar with the writings of Robert Badinter, who visited his clients, the last men to be executed in France, every day between their condemnation and execution. In response to the news of the execution of Troy Davis he spoke of: a judicial assassination; a stain on US history; a defeat for humanity

A man has been kept on death row for 20 years; a punishment considered cruel, inhumane and degrading by the European Court of Human Rights. As one of the founding members of the UN and as a permanent member of the Security Council, the US has an exceptional responsibility to this body. I ask whether it is appropriate that your country has declined to accept the call for a moratorium on the death penalty, first passed by majority vote on December 8, 2007 and since then twice repeated with an increased majority.

I am aware that your country claims to follow the letter of the law in retaining the "right" to capital punishment, by adding to Article 3 of the Universal Declaration of Human Rights, sotto voce, the phrase rejected by the General Assembly of 1948, "except in cases prescribed by law and after due process". Eleanor Roosevelt urged the rejection of this amendment. More explicitly, your country claims the justification allowed in the International Covenant on Civil and Political Rights, Article 6.2, "sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime".

But we are no longer in 1948, nor even 1966, the date of the International Covenant referred to. In 1966, Article 6.6 indicated that the allowance of Section 6.2 was a temporary measure, allowing time to adapt to the full requirement of abolition: "6.6 … Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by a State Party to the present Covenant".

In 2011, attitudes to the death penalty have greatly changed. In his report to the UN Human Rights Council, the UN secretary-general points out that, "About 140 of the 192 state members of the United Nations are believed to have abolished the death penalty or introduced a moratorium either legally, or in practice."

When we consider details of this case, the story becomes worse.

In 1991 Troy Davis was condemned to death for the murder of a white policeman in 1989. There was no physical evidence that he committed the crime, nor was the weapon ever produced. His condemnation followed the evidence of 9 witnesses who identified him as the murderer. Seven of those witnesses later retracted their evidence, some saying that their evidence was given under pressure of police persuasion. The identification parade was carried out in a way which is no longer tolerated; before seeing the parade, witnesses had been shown a picture of Troy Davis, and told that this was the man they were expected to identify. The identification parade is now known to be a very flawed process.

The standard of evidence in the trial was far short of the standards for capital punishment. You will be aware that the standard of evidence in cases involving the death penalty is far more demanding than is the case in other criminal trials. In all probability Troy Davis was innocent.

The execution was delayed for four hours until the Supreme Court ordered the lethal injection to proceed. Is there another Victor Hugo, who can decode for us this ultimate inhumanity? President Obama declined to intervene. Before he died, Troy Davis declared that the movement to abolish the death penalty will go on. Indeed it will, Troy. This case has shocked many, and may well prove decisive in leading to abolition. One may also truly pity the wife of the slain policeman who declared her satisfaction that vengeance was achieved.

This letter is addressed to Your Excellency ahead of October 10, World Day for Abolition of the Death Penalty. One ambassador in Thailand has submitted her plea to the government of Thailand to proceed with abolition. Other ambassadors have assured me that they avail of every opportunity to make the same submission to the Royal Thai Government. Perhaps Your Excellency can find some diplomatic way to express support for an initiative parallel to that taken in the Philippines.

Danthong Breen is chairman of the Union for Civil Liberty.
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