PETER RODGERS. Australia and capital punishment – rhetoric and reality

Oct 20, 2017

In pursuing Australia’s ultimately successful bid for election to the UN Human Rights Council, Foreign Minister Bishop declared that Australia would be ‘unrelenting’ in its efforts to abolish capital punishment globally. But Australia’s track record of selective outrage gives little hope for an energetic, universalist approach that goes beyond the rhetorical.

The images are grainy and the filming unsteady, the voices of the officials smudged by the insistent, terrified chant of the black-robed women stretched before them: ‘I did not kill, I did not kill, I did not kill’.

Laila bint Abdul Muttalib Basim is about to be beheaded.

The executioner, a tall, burly man dressed in a traditional white gown and red and white checked head-scarf speaks impatiently to her. His left hand yanks at her shrouded head. The curved sword in his right hand glints in the early morning sun. The surrounding police seem to urge Laila to cooperate. Her awful plea beats on. Finally, unable to pull her upright, the executioner slashes at her throat. She screams at the first cut, the second one silences her. With a third sweep of the sword the executioner severs her head. Then, almost with a feminine grace, he lifts his gown with his left hand to avoid the blood splatter and steps away, carefully wiping his sword with a white cloth. A van comes into view and officials wearing surgical gloves hover over the body. One of them picks up Laila’s head and places it on her corpse, which is then wrapped and bundled into the van.

The date is 12 January 2015. This horrific scene, in the words of the Saudi Ministry of the Interior, has helped to restore security, realise justice, implement God’s rulings and warn others. It has also been captured on a cell-phone by one of the policemen on duty. His video appears briefly on You Tube and other social media sites. Those who see it cannot pronounce on Burmese-born Laila’s guilt or innocence, the alleged sexual abuse and death of her seven-year old stepdaughter. But they can judge whether such state-sanctioned killing (often in more clinical conditions) has a place in the modern world.

In pursuing Australia’s bid for a three-year term on the 47-member UN Human Rights Council, Julie Bishop termed the death penalty cruel, inhuman and degrading, no matter how it was carried out. She noted the lack of any credible evidence that it was an effective deterrent and that it was ‘regularly associated with miscarriages of justice … and the disproportionate execution of poor, ethnic and religious minorities’.

All true, and welcome comment to those of us who believe that the death penalty has no place in a world that pretends to be civilised. There is no evidence that the penalty deters crime in any meaningful way. Countries that have abolished the death penalty, or at least paused its use, have regularly experienced an actual decline in the murder rate. There is incontrovertible evidence that capital punishment continues to kill the innocent. An American National Academy of Sciences article in 2014, for example, estimated that if all those on death row in the US remained under sentence of death indefinitely at least four per cent would be exonerated. There are also clear indications that nations such as China, Saudi Arabia, Iran and North Korea use capital punishment as a means of political and social control.

According to Amnesty International, at least 1,032 people were executed in 2016 in 23 countries worldwide, down from 1,634 in 2015. That figure excludes China, the world’s leading executioner but which withholds the data as a ‘state secret’. After China, the top executing nations were Iran, Saudi Arabia, Iraq, Pakistan, Egypt and the US. While the number of executing countries globally is declining (104 in 1995, 60 in 2016) , the range of non-violent capital offences in some of them remains broad, including economic crimes and ‘deviant’ sexual or religious behaviour. These go well beyond the UN requirement that the death penalty be imposed only for ‘intentional crimes with lethal or other extremely grave consequences’.

‘Extremely grave’ of course is open to wide interpretation. After the fall of President Mubarak in 2011, Egypt’s Supreme Council of the Armed Forces included hooliganism and thuggery in the list of capital offences. Brunei has moved to make blasphemy and apostasy as well as sodomy and adultery by Muslims punishable by stoning to death. Papua New Guinea, a de facto abolitionist state which last saw an execution in 1954, has amended its Criminal Code to include robbery and sorcery-related murder as capital offences.

Australia’s strategy of urging retentionist states to reduce the number of capital offences, to introduce or maintain a moratorium on executions, and to work towards total abolition makes sense and we can hardly expect a major diplomatic outcry every time someone is executed. Yet if it is wrong to execute Australians it is equally wrong to execute Chinese, Americans, Indonesians, Bangladeshis, Saudis, Japanese and so on. Selective outrage gives executioner states the easy argument that it is essentially about nationality not principle.

If material I received in response to an FOI request about the US is any guide, Australia’s past advocacy can only be described as languid. A cable to DFAT from the Australian Embassy in Washington dated 18 September 2015 advised: ‘Since January 2014 we have not made any representations to the US federal government on the death penalty’. An email from DFAT to the embassy on 10 March 2016 asked: ‘We are responding to a piece of mincor [ministerial correspondence] on the death penalty … just wondering whether there are bilateral representations we could refer to?’ The reply: ‘Nothing at the federal level but a bit at the state level’. The latter in fact was ‘in support of foreign nationals, at the request of their governments’.

Yet between January 2014 and March 2016 there were more than 70 executions in the US including, in January 2016, a prisoner who had spent 36 years on death row.

The government’s response in March 2017 to a parliamentary committee report Australia’s Advocacy for the Abolition of the Death Penalty is instructive. The government ‘noted’, ‘accepted’ or ‘accepted in principle’ 12 of the report’s 13 recommendations mainly couched in the language of reviewing, revisiting, developing and amending. Recommendation 3 was different. It noted the UN position that drug offences do not constitute the ‘most serious crimes’  for which the death penalty may be applied under international law and recommended that the AFP ‘obtain guarantees that prosecutors in partner countries will not seek to apply the death penalty before providing information’ in such cases.

The government rejected this recommendation, seemingly on the grounds that it might be difficult to implement and could impede intelligence cooperation with states that retain the death penalty. Yet in late 2015 the former Attorney General Philip Ruddock had in fact suggested that such cooperation should be governed by laws rather than procedural guidelines. Ironically, in 2017 Ruddock was roaming the world as Australia’s special envoy on human rights, spruiking its UN HRC candidacy.

Any meaningful campaign to rid the world of capital punishment will pose risks to Australian interests and its international relationships. A genuinely ‘unrelenting’ campaign needs more than rhetoric about the evil of capital punishment and a dribble of financial support for civil society organisations campaigning against it. Unless there are meaningful costs for executioner states there is very little incentive for them to change their ways. Such costs, for example, could involve travel bans on selected individuals from law enforcement or judicial agencies, withholding support for candidacies in international organisations (the UN Human Rights Council perhaps) or downgrading intelligence or strategic information sharing. If Australia continues its current selective, inconsistent ways it doesn’t deserve to be taken seriously.

Peter Rodgers is a former senior Australian diplomat writing a book on capital punishment.


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