Defending the Death Penalty

Not me (necessarily). The Bush Administration.

Funny that they feel that need to defend their decision to seek the death penalty against 6 Guantanamo inmates accused of various levels of involvement in the events of 9/11. After all, no international law prevents the US from executing convicts - though there may be an emergent international norm against the death penalty, the US is not bound by the Optional Protocol to the International Covenant on Civil and Political Rights. So the Bush Administration really doesn't need to bother justifying this.

Besides, the strategy being used - comparing the US military commissions to the Nuremberg tribunals - is going to backfire, because there is a significant difference and a significance similarity that doesn't work in the Bush Administration's favor.

The difference is 60-some years of international jurisprudence and the establishment of the International Criminal Court by multilateral treaty - a court which does not allow for the death penalty, even for the architects of genocide.

The similarity is the lack of due process in the two proceedings (required, by the way, by Common Article 3, Article 1(d) of the Geneva Conventions even for unlawful combatants - the Bush Administration has admitted this article applied to GWOT detainees). At Nuremberg, Nazis were executed for "crimes against humanity" - a concept that did not exist prior to the crimes being committed, so court's legitimacy was undermined by claims of ex-post-facto justice. As for the Guantanamo Six, at least one of them, Khalid Sheikh Mohammad, is known to have been tortured by the US government during interrogations, so evidence that could hang him is unlikely to be accepted by advocates of due process.

In other words, invoking Nuremberg was exactly the wrong strategy for the White House. Instead, they should have stuck to the letter of the Geneva Conventions. The conventions provide no immunity from prosecution and even execution for those who engage in political violence without formal combatant status - that is, being incorporated into the legitimate armies of parties to an conflict. The Guantanamo Six do not qualify and therefore the question of whether they can be executed is moot under international law.

It's ironic that the White House would raise this at all then, given its penchant for flouting well-established norms. In this case, the law seems actually to be on the US side. Rather, this would have been a great opportunity to demonstrate our adeherence... complete adherence... to the spirit and letter of the Geneva Conventions. Oh, but wait, there's still that due process / torture thing...

See What I Mean?

Recently I blogged about the domestic impact of the emerging international anti-death-penalty norm, even in countries who are unlikely to ever sign a new treaty abolishing capital punishment.

Today, al-Jazeera reports that China is Moving Toward Humane Executions:

"China has announced plans to step up use of lethal injection instead of shooting as the means of carrying out executions, a senior law enforcement official has said.

Jiang Xingchang, vice president of the Supreme People's Court, was quoted by the China Daily on Thursday as saying death by lethal injection was 'considered more humane.'"

Death Knell for the Death Penalty?

According to Foreign Policy's latest "web exclusive":

"Its critics call the practice barbaric. The United Nations General Assembly is voting to outlaw it. Yet, a closer look at the death penalty—and the countries that still use it—reveals that it’s far too early to pronounce a death sentence against capital punishment just yet."

When I first read this sentence I was eager to peruse the article, which I assumed would be a carefully-thought-out defense of capital punishment on empirical grounds. However, the sole evidence for this statement is to list a number of countries who have no intention of abolishing the death penalty including China, Pakistan, Iran, Iraq and the United States. These are compared according to the number of people executed annually as well as the type of crimes.

So, the claim seems to be not that the death penalty shouldn’t be abolished, but that steps in the direction of total abolition are empirically insignificant since these five countries, among others, are definitely not on board.

I beg to differ. Many important advances in human rights law took place without the involvement of a few renegade countries, and almost all took place without US ratification. Secondly, for the practice to actually be abolished in 189 governments of the world would constitute an unprecedented historical shift, even if certain holdouts took longer to come around to the newest standard of “civilization.”

Indeed, the campaign to abolish the death penalty may affect the incidence or nature of the practice among pro-death-penalty states. For example, while the US insists on the right to execute its criminals, it continues to attempt to humanize the means by which this is done. As for China, Foreign Policy acknowledges that executions have declined by 40% since Beijing was awarded the 2008 Olympics.