‘Death Penalty Has No Place in the 21st Century’
Lecture Andalas University, Padang, Indonesia, 25 September 2015
In 1994, during the genocide in Rwanda, 1994, around one million people were brutally killed. Men, women and children were massacred because they were Tutsi’s, or had married a Tutsi, or were assumed to be Tutsi. The killings took place with machetes. The slaughter had been premeditated, as an operation of ethnical cleansing. Women were raped, baby’s cut into pieces. It was horror at mass scale, comparable to the Holocaust against the Jews in Europe, which had been carried by the Nazi’s in the 1930s and during World War 2.
Several years after the genocide against the Tutsi’s a new regime had gained a strong position in Rwanda. It declared any distinctive reference to Tutsi’s or Hutu’s illegal. The new regime wanted to bring the perpetrators to court, and to try them in order to end impunity, and prevent recurrence. Given the fact that around one million of people, one seventh of the whole population, had been slaughtered, this was a tall order. The prisons were full with people suspected of complicity with genocide. Two hundred thousand persons were in jail. Whether and to which extent they had been guilty, had to be proved. This was in particular difficult, because as a result of the genocide all judges and barristers had been killed. The new regime made a serious effort to install such a system, and train a new judiciary. After a number of years a beginning was made with the trials. Some persons who had led the genocide were sentenced to death. In 1998 twenty two perpetrators of the genocide were executed. However, given the capacity of the judiciary, the enormous number of suspects, the slow speed of those trials and the need to respect the human rights of the suspects, rapists and killers themselves, it became clear that a public trial of two hundred thousand people would last until the year 2100. In that year everybody who had been around during the genocide would be dead. Survivors, witnesses and accused and suspected perpetrators would not be alive anymore. Suspects would have to stay locked up in prison, waiting for a trial that perhaps could only be scheduled for decades after their death. So, the official trials, which had been based on Western procedures, had to be called off.
The government of Rwanda then decided to re-install a system of traditional justice and communal law, which for ages had been applied by local communities. In these so-called Gacaca proceedings survivors play an important role, calling the suspected perpetrators to account, telling their personal stories as victims of the genocide in weekly gatherings of all persons living on the same hill or in the same ward or village, and repeating those stories whenever asked, so that everybody in their neighbourhood would know and not forget.
For ages Gacaca procedures for ages had been applied in other situations where justice had to be sought, for instance theft, rape or murder. These mostly concerned individual cases or cases of a small number of victims and a small number of perpetrators only. The system had never been applied in cases of mass atrocities, calling for justice at a mass scale.
Villages and neighbourhoods applying traditional Gacaca had always been aiming to not only judge the culprits, but also to heal the wounds inflicted in the community, and to reconcile. After all, in the end people had to live together again, victims and culprits, parent and children of people who had been killed, living in houses near those of the families of the evildoers. As farmers they had to plough and till the same land, to work together, to exchange their produce on the same market, and send their children to the same school.
In local communities and at a rather small scale traditional justice had worked. Could those procedures also be applied as a method to heal society after genocide? The new regime demanded that all people, including the survivors and the families of those who had been killed, would follow instructions which were meant to prevent recurrence of genocide. For Rwanda this was crucial, but following those instructions is not easy for survivors of death squads. Instructions not to take revenge, not to discriminate, and to live in peace with each other were justified by the need to prevent recurrence of the genocide. As such they were understood and respected. However, in order to obey instructions not to take the law in one’s own hands, people will have to put faith in the state. Will the state be able to put in practice a credible system of justice and law? When it had become clear that regular official legal procedures were physically impossible and that an international tribunal would only be able to try some dozens of the accused, Gacaca was left as the only alternative. Now the system had to be used in order to heal not only individual communities, but the whole country, and to foster the renewal of society and the reunion and reintegration of people. Gacaca was aiming at total reconciliation.
Human rights organisations which had advocated Western legal procedures had only one option to offer: set everybody free. This would have been a licence to kill out of revenge. The government, however, believed in the possibility of reconciliation on African terms, which may not have given satisfaction to Western feelings of righteousness, but which brought a fair degree of justice to people in Rwanda and did contribute to the healing of society.
For this it was considered essential that any verdict in the community would imply compensation and imprisonment for shorter and longer terms, including life imprisonment, but not capital punishment. The death penalty, which had been an option during the previous Western style trials, was abolished by law in 2007. Perpetrators who had been sentenced to death saw that sentence commuted into a life sentence.
This was a breakthrough. It helped Rwanda to return on a path towards peace and reconciliation. Sustainable peace in Rwanda is still far away, no wonder, because the healing of wounds after genocide will take generations. However, taking revenge is out of the question. On the basis of the Genocide convention, which had been agreed by the international community in 1949 and had become worldwide operational since then, the government of Rwanda would have been justified to uphold the option of capital punishment. However, it was decided to renounce that option, and to lead the population on a road towards reconciliation and even forgiveness: no revenge, no further killings, and no recurrence of mass violation of human rights.
If it is wise and possible to abolish capital punishment in the case of the worst thinkable crimes ever, would it then also not be wise and possible to do so in cases which may be very serious, but anyway minor in comparison with Holocaust and genocide?
Progress and duplicity
A few centuries ago capital punishment was quite a regular phenomenon. In his book The Better Angels of Our Nature. A History of Violence and Humanity, Steven Pinker has described how the practice of capital punishment has changed. So, for instance, while in the mid seventeenth century in the United States before independence each year three out of thousand people were sentenced to death, this figure declined tenfold around the year of independence. It went down further with another factor ten in the second half of the last century. Moreover, before independence about 70% of executions took place for crimes other than homicide, which figure declined to nearly zero towards the end of last century. In 2007 the US Supreme Court ruled that the death penalty may not be applied to any crime against an individual ‘where the victim’s life was not taken’, however with the exception that capital punishment is still possible for a few ‘crimes against the state’: espionage, treason and terrorism. One could say that such crimes would fall in the same category as crimes against humanity, such as genocide, which Rwanda, having gone through genocide itself, had declared no longer a ground for capital punishment.
In the past other offenses than crimes against the state, crimes against humanity and homicide were generally accepted grounds for execution. In the Middle Ages in European countries sodomy and heresy were grounds for capital punishment. In the early 19th century in the UK officially there were more than two hundred possible grounds for execution, including, for instance, poaching and counterfeiting. Half a century later this had gone down to four grounds only.
So, both the high numbers and the large lists of crimes as a ground for execution are behind us. That can be seen as progress in human civilisation. However, progress was limited to the citizens of Western countries. The same countries used different standards with regard to people in their colonies, both during the times of slavery and thereafter, for instance in order to counter resistance against colonial rule. Also in this respect Western governments were guilty of oppression, discrimination and the application of arbitrary standards and methods.
Take the Netherlands as an example. The last execution of a death penalty in the Netherlands took place in 1860. Ten years later the death penalty was officially abolished, but it took another century to make capital punishment unconstitutional, in 1983. After World War 2 legal provisions had been made to try war criminals, which had resulted in about 40 executions. The special circumstances of the War had made this a legitimate option. However, when the Dutch in 1870 had decided not to proceed with death penalties, they had made an exception for the colonies, including the so-called Dutch East Indies. The reasoning was hypocritical: people living in Indonesia were perceived as belonging to a different culture, as ‘less civilized’ and not yet ready for reform of the penal system. In the seventy years following the official abolition of the death penalty, until around 1940, hundreds of people were sentenced to death. My predecessors as political leaders in the Netherlands have been guilty of outright discrimination.
United Nations and the right to life
So, Indonesia and other developing countries were able to use their own norms and standards only after they had become independent nation states. Universally applicable norms and values were introduced after the establishment of the United Nations, in which developing countries gradually had outnumbered Western countries, which gave them an enormous influence in the development of international law. Two new categories of new international law stood out: first, the sovereignty of the nation state and, second, human rights. The introduction of both categories has served the interests in particular of countries and peoples in the so-called Third World. The principle of sovereignty of the nation states secured autonomy of the newly independent countries, also with regard to decisions on domestic governance and the rule of law. The adoption of the Universal Declaration of Human Rights gave equal and inalienable rights to all members of the human family. From then on the rights of people in developing countries would be equal to the rights of people in the North, both their civil and political rights and their economic and cultural rights. The latter category, the economic, social and cultural rights, were mentioned in the Declaration, but adequate weight was given to these rights only after the adoption of the International Covenant on Economic, Social and Cultural rights in 1966, and its entry into operation ten years later. This was in particular the result of pressure by developing countries. In the following decades ongoing action by developing countries resulted in further elaboration of human rights, such as, for instance, the collective right to development, rights of indigenous people, the right to water, or the principle of responsibility to protect. Both nations and peoples of developing countries have benefited much from UN based action in the field of human rights.
This might serve as an argument for developing countries to take initiatives and debates in the United Nations with regard to human rights very serious. More than sometimes has been assumed, these initiatives, consultations and resolutions are in particular serving the interests of the nations and people of the former so-called Third World, which in the past had been excluded from international decision making in the field of international law. The argument can be made that especially countries and peoples whose rights had been violated in the past would do justice to their own interests by defending established rights, in which world values have been enshrined, and by building further on the basis of agreed international law.
In particular the basic right to life would qualify for active defence and meaningful extension. Article 3 of the Universal Declaration of Human Rights states that everyone has the right to life, liberty and security of person, while article 6 (1) of the International Covenant on Civil and Political Rights provides that every human being has the inherent right to life, which is to be protected by law, and that no one is to be arbitrarily deprived of his life. Official UN bodies, such as the Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution have described the right to life as the supreme right, “the ultimate meta-right, since no other right can be enjoyed without it”. In those official statements the right to life is being called “the fountain from which all human rights spring. If it is infringed, the effects are irreversible”.
Human dignity and human rights are interrelated. Already in the first sentence of its preamble the Universal Declaration provides that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. So, it was only logical that states parties to the Declaration and to the Covenants took another step, by seeking the abolition of the death penalty in order to enhance human dignity worldwide. Already in 1971, the General Assembly stated that in order to fully guarantee the right to life, countries should progressively restrict the number of offences for which capital punishment might be imposed, after which that punishment could be abolished in all countries. A further step was taken with the adoption in 1989 of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Already two years later the Protocol has entered into force.
New steps forward
What is the present situation?
In a recent report the Secretary General of the United Nations has confirmed that capital punishment has been progressively reduced, and in many countries abolished since the protocol entered into force. The number of states that still practise the death penalty is shrinking. In many countries laws and practices have been introduced which result in declining numbers of executions. The protocol itself has been ratified by 81 states. Currently around 160 of the 193 member states of the United Nations have either abolished the death penalty, introduced a moratorium or do not practice it. So, the 70 years since the United Nations came into being have seen a remarkable shift from a large majority of member states that maintained the death penalty to, nowadays, a minority.
In the last 10 years significant developments have taken place in the legislation on the death penalty in Asia, with abolition finally firmly established in the Philippines, a reduction of the scope of the applicability of the death penalty in Singapore and Vietnam, and commutations of sentences in Malaysia, Myanmar, Singapore and Thailand. Recently the authorities in China, where the death penalty has been applied quite often, reduced the number of crimes subject to the death penalty. In August this year the Indian Law Commission, at a request of the Supreme Court of India, published a report with the conclusion that the death penalty does not serve as a deterrent against crime, and the recommendation to abolish the death penalty for all crimes, except terrorism and waging war.
The fact that around 80 countries have ratified the Protocol, and that during the period another 80 countries have not practiced capital punishment, means that countries which have not, or not yet, ratified the protocol actively have sought options to bring their judicial processes in accordance with human dignity. One of those options is declaring a moratorium. In a number of resolutions the General Assembly of the UN has called for such a moratorium. It could serve as an option next to full abolishment, or as a transitional stage, on the road to full abolishment later.
Recently the Secretary-General of the United Nations has said that the death penalty has no place in the twenty-first century. This statement was not made in passing. Since then it has been quoted frequently, both by himself and by UN institutions, on various occasions. From UN reports published during the last couple of years, one may conclude that presently there is a strong international movement towards the worldwide abolition of the death penalty. Abolition, and strict reduction of justifications of the death penalty, would indeed be an important step on the road to worldwide civilization and humanization, which seventy years ago started with the adoption of the Universal Declaration of Human Rights, including in particular the right to life.
Some governments are still hesitant to take such further steps. They believe that the death penalty is a just punishment for very serious crimes, not only genocide or treason, but, for instance, also the selling of drugs. In many countries the selling of drugs has led to criminal violence and the rise of a criminal underworld. Drugs are a major threat to the health and wellbeing of people, in particular the younger generation. Governments should therefore give high priority to anti-drugs policies. They should give proper information and warnings to potential consumers, discourage consumption, educate youth, and provide for effective health services for addicts, which are victims rather than criminals. Addicted consumers are patients. They should be cured rather than put in jail. Governments should go after the drug business, not only the small and poor people selling some drugs on the street, not only those who themselves are victims of brutal criminal gangs, blackmailing and forcing poor people, threatening to molest or kill their families, if they do not obey. These people should be helped, not jailed. The producers of drugs and the big traders should be seized, the powers behind the scenes, including corrupt politicians, administrators, policemen and military. Harsh punishment for very serious crimes endangering people and communities is justified. But make no mistake: leaving aside moral arguments, the death penalty will not result in a reduction of these crimes. That has been shown in many countries. All around the world, researchers have come to the conclusion, just like the Indian Law Commission, that there is no evidence that the death penalty deters crimes.
A substantial reduction of crime, including drugs related crime, requires re-education and rehabilitation of criminals. Rehabilitation, in order to foster reintegration into society, is not only morally superior to retribution, but also rationally more effective in the struggle against crime, including serious crime. That this option can be considered even in cases of mass violations of human rights, has been demonstrated by the Government of Rwanda.
Reintegration is not always possible. There are crimes which will continue to require sending convicted culprits to jail for the rest of their life. Life sentences are severe, but they are not violating the right to life. If the verdict has been carried out lawfully, after proper judicial procedures, and if imprisonment is ensured under humane conditions, a life sentence can be considered, compatible with principles of human dignity and human rights. The death penalty, however, clashes with those principles and is therefore morally wrong.
Moreover, capital punishment is irreversible. Verdicts may have to be reversed, if later on it turns out that the sentence has been passed on wrongful grounds. Wrongful convictions are no exceptions. During the colonial period many sentences pronounced by the Dutch colonial regime in Indonesia were taken on loose grounds, without proper legal procedures or convincing proof, and often arbitrarily. Looking back we may even conclude that the Dutch did not have any right to be in Indonesia as colonial rulers, and that any conviction pronounced by the colonizers was by nature unauthorized and wrongful. But, in addition to this, the Dutch should admit that many convictions pronounced by the colonial administration were inhumane and unjust and that they have resulted in the death of innocent people.
There is a lot of evidence that judicial procedures in many countries still result in wrongful verdicts. In the Netherlands, also during the last couple of decades, wrongful convictions have taken place. Undeniable and verified mistakes made by the justice system were corrected. This was possible, because the convicted persons were still alive. Researchers in the United States have found out that many verdicts by US courts had been wrongly pronounced. Some of those could not be corrected anymore, because the death sentence had already been executed. The answer to this should be to reform the justice system. However, in practice, also after reform, wrongful convictions are not completely avoidable. Capital punishment is final and irrevocable. It prohibits the correction of mistakes by the justice system. It leaves no room for human error, with grave consequences.
There are also other arguments against the death penalty. Many of those can be found in reports published by human rights activists and non-governmental organisations, and also in official publications of the United Nations. The language used in UN publications about capital punishment is very clear: as long as the death penalty exists, it can be misused, for example to target particular social groups. There is evidence that the death penalty is not imposed in a just and equal way, and violates the principle of non-discrimination. “Those sacrificed on the altar of retributive justice are almost always those who are vulnerable because of their poverty, minority status or mental disability”. In some countries it is a “judicial lottery, the odds are often stacked against the poor, minorities and other common targets of discrimination”, including women, foreign nationals – such as Indonesians in Saudi Arabia - , people with a different religion, apostates, persons with mental or intellectual disabilities, and persons who are discriminated due to considerations about sexuality.
The United Nations also calls for better judicial procedures in general: fair trial and due process; a rightful access to amnesty, clemency, pardon and commutation procedures; full transparency to families and the public. These recommendations concern all countries, whether retentionist, or having abolished the death penalty, or still involved in debates about capital punishment.
The road forward
As a matter of course all countries should be involved in that discussion, because all countries are Member States of the United Nations and the issue has been put on its agenda. The future of the death penalty is a concern for all countries, European countries as well as Asian countries, the US as well as Saudi Arabia, China, India, Australia and Indonesia, without exception. As a Dutch citizen it is not up to me to judge procedures in other countries, such as Indonesia. But as a world citizen I am committed to the Universal Declaration of Human Rights, its Covenants and the two Optional Protocols ratified by my country. Whenever the Dutch government violates principles and procedures of Human Rights which have been enshrined in these documents, such as for instance presently is the case of asylum procedures in my country, or when my country does not respect social and economic rights of poor people abroad, I have the duty to raise my voice. As far as other countries are concerned I hope that human rights organizations, lawyers and activists can raise their voice, without being silenced. They can refer to international treaties concerning human rights, signed and ratified by their own governments. When doing so, they have the right to be heard.
As a supporter of the UN system, I am convinced about the great significance of its two main values: national sovereignty and equal human rights. I agree with Secretary General Ban Ki Moon: the death penalty has no place in the twenty-first century. The Secretary General clearly is of the conviction that the use of the death penalty should no longer be perceived as an entitlement of a sovereign state, because it violates human rights. In this view no national interest can justify violations of the right to life as a basic human right, by applying the death penalty. As argued by Ivan Simonovic´, United Nations Assistant Secretary-General for Human Rights, “in the 21st Century a right to take someone’s life is not a part of the social contract between citizens and a state any more. The evolution of human rights has reduced state sovereignty in many areas; the death penalty should be one of them as well.” And Mr Simonovic continued by saying: “In my view, the death penalty is morally, socially and politically wrong. Morally, killing is wrong. Killing on behalf of a state is wrong as well”.
Such statements themselves do not form international law. They are interpretations of international law, subjective, though authoritative. They can be disputed, but not neglected. As a matter of principle human rights law and its interpretations by UN bodies must commit all countries that once have ratified the Charter of the UN and the Universal Declaration. Not all countries are living up to the duty to take their own ratifications seriously. I already referred to European countries violating refugee law. I could also refer to the United States violating human rights of the prisoners in Guantanamo, or regimes in the Middle East targeting unarmed citizens during civil war.
In the end my comments are neither moral, nor legal, but political. I believe that it is in the interest of people in all countries, including Indonesia, that international values and principles which have been enshrined in international law, and which have been laid down in ratified international treaties, will be respected by all governments. So, for instance, it is an Indonesian interest that other countries respect each other’s sovereignty as well as people’s rights to be free and to live in dignity, also in social and economic terms, all around the world.
Shortly after the declaration of independence on 17 August 1945, the Charter of the United Nations provided a strong basis in international law for the sovereignty of the young nation, and the right of its people to get a proper share in international welfare. In particular since the turn of the Millennia the Republic of Indonesia has become a leader in international affairs. I am convinced that new steps by Indonesia on the road towards full-fledged implementation of the principles contained in the Charter and the subsequent Conventions and Protocols would further strengthen Indonesian leadership.
Lecture Andalas University, Padang, Indonesia, 25 September 2015
Moratorium on the Use of the Death Penalty. Report of the Secretary General of the United Nations. Document A/69/288. 8 August 2014.
Moving Away from the Death Penalty. Lessons in South-East Asia, Office of the High Commissioner for Human Rights, Regional Office for South-East Asia. Bangkok (2014).
Question of the Death Penalty. Report of the Secretary General of the United Nations. Document A/HRC/24/18, 1 July 2013
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. United Nations General Assembly Resolution 44/128, 15 December 1989.
Simonovic, Ivan (ed.) (2014), Moving Away from the Death Penalty. Arguments, Trends and Perspectives. New York: United Nations (2014)
Todung Mulya Lubis, Death Penalty and the Road Ahead: A Case Study of Indonesia. Lecture Melbourne University (2015)