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Towards a UniversalMoratoriumon the Use ofthe Death Penalty[ Strategies, Arguments and Perspectives

Author:Caroline Sculier

WORLDCOALITION

AGAINST THE DEATH PENALTY

www.worldcoalition.orgCover: Lou Bory, ENSAD

Towards a UniversalMoratorium on the Useof the Death Penalty

[ Strategies, Arguments and Perspectives

February 2010

AuthorCaroline Sculier

CoverLou Bory, ENSAD

World CoalitionAgainst the Death Penalty

ECPM3, rue Paul Vaillant Couturier92320 Chatillon - FranceTel. : + 33 1 57 63 09 37

[email protected]

ISBN: 978-2-9536203-0-6

This document was producedwith the financial support of the European Union.

The content of this document is the sole responsibilityof the World Coalition Against the Death Penalty

and should in no way be considered to reflect the positionof the European Union.

WORLDCOALITIONAGAINST THE DEATH PENALTY

www.worldcoalition.org

2 [ World Coalition Against the Death Penalty ]

Map

Table of contents

[Map of countries studied in the report . . . .2

[ Table of Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

[ Acknowledgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

[ Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

[ The UN Resolutionson a Universal Moratorium . . . . . . . . . . . . . . . . . . . . . . . . . .7

[ Group 1 ] One step awayfrom Statutory Abolition? . . . . . . . . . . . . . . . .9

[ ALGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

[ BENIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

[ BURKINA FASO . . . . . . . . . . . . . . . . . . . . . . . . .10

[MADAGASCAR . . . . . . . . . . . . . . . . . . . . . . . . . .11

[ THE RUSSIAN FEDERATION . .12

[ Group 2 ] Countries which are Abolitionistin Practice but Resist Makingtheir Position Official . . . . . . . . . . . . . . . . . . . . . .13

[GHANA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

[ LIBERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

[MOROCCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

[ REPUBLIC OF KOREA(SOUTH KOREA) . . . . . . . . . . . . . . . . . . . . . . . .17

[ TOGO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

[ Group 3 ] Countries withan Ambiguous Stance . . . . . . . . . . . . . . . . . .19

[ JORDAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

[ LEBANON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

[ KAZAKHSTAN . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

[ BELARUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

[ NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

[ INDIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

[ UNITED STATES . . . . . . . . . . . . . . . . . . . . . .26

[ The UN Resolution reflectsan international movementtowards universal abolition . . . . . . . . . . . . . . . . . . . . . . . .28

[ Appendix ]

[ 2007 UNGA Resolution . . . . . . . . . . . . . .30

[ 2008 UNGA Resolution . . . . . . . . . . . . . .31

[ 2008 Note Verbale . . . . . . . . . . . . . . . . . . . . . .32

[ 2009 Note Verbale . . . . . . . . . . . . . . . . . . . . . .35

[ OSCE Resolution . . . . . . . . . . . . . . . . . . . . . . . . .38

[ ACHPR Resolution . . . . . . . . . . . . . . . . . . . . . .41

[ Madrid Declaration . . . . . . . . . . . . . . . . . . . . . .43

[ Notes ] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

[ Towards a Universal Moratorium on the Use of the Death Penalty ] 3

Acknowledgements

This report is largely based on information provided bythe World Coalition Against the Death Penalty (the WorldCoalition) and its partner organisations; on general infor-mation provided on the websites www.peinedemort.org,www.abolition.fr, www.amnesty.org; on informationon Universal Periodic Review1 (UPR) fromwww.ohchr.org/EN/HRBodies/UPR and www.upr-info.org, and on information about the United States fromthe reports of the Death Penalty Information Centre2.

I would particularly like to thank: Mona Chamass of theWorld Coalition for her detailed update on Algeria,Morocco, Jordan and Lebanon3, Guillaume Colin ofFdration internationale de lAction des Chrtiens pourlabolition de la torture (FIACAT), as well as ACAT Togoand ACAT Benin, for the information on Burkina Faso,Togo, Ghana, Benin and Madagascar; MarieSolange Razanadrakoto (Director General for LegalAffairs and Reform), Laurette Lalaharinivo (Director forLegal Reform) and Lucien Rakotoniaina (Director forHuman Rights and International Relations) atMadagascars Ministry of Justice, all of whom I met inAntananarivo on 16th and 17th December 2009; Mary

Murphy of Penal Reform International (PRI) andFranoise Petre for their contribution on Russia,Kazakhstan and Belarus; Evgeniy Zhovtis ofKazakhstans International Bureau for Human Rights andthe Rule of Law and the International Federation forHuman Rights (F IDH) for their contribution onKazakhstan; Speedy Rice of National Association ofCriminal Defense Lawyers for the contribution on Ghana,Liberia and South Korea; Keira Yeh of the Taiwan Allianceto End the Death Penalty and Seungho of AmnestyInternational Korea for their contribution on South Korea;Jaafaru Adamu of HURILAWS for the contribution onNigeria ; Lawyers for Human Rights International for theircontribution on India, and Elizabeth Zitrin of DeathPenalty Focus and Speedy Rice for their contribution onthe United States. The information that they providedmade a valuable contribution to the review of the cur-rent situation in relation to the death penalty providedbelow. This paragraph would not be complete withouta word of thanks to the World Coalitions ExecutiveSecretariat team in Paris and my particular thanks goto Head of Campaigns, Aurlie Plaais, for her energeticand very effective support.


Five years after its creation, the World Coalition Againstthe Death Penalty has been facing one of the mostimportant decisions in its young history: the one to sup-port the resolution of the General Assembly of the UnitedNations for a moratorium on the use of the death penaltyin 2007.The purpose of the WCADP is to promote universal abo-lition of the death penalty by all means. Until 2007, themoratorium was one of the means of the Coalition toachieve this goal, together with reducing the scope ofcapital punishment or guaranteeing fair trials. The mora-torium is characterized by a temporary suspension ofexecutions and, more rarely, of death sentences. It isprovisional and often depends on the will of a key deci-sion maker (President, Minister of Justice ...). Conversely,the abolition is permanent as enshrined in law.Several attempts to pass a resolution against the deathpenalty at the General Assembly of the United Nationsbefore the 2007 resolution had failed, as in 1997. In 2007the momentum was different because a trend towardsthe universal abolition had begun. Two-thirds of theworld had abolished the death penalty or ceased toapply it, and the number of executions declined eachyear.The time had come to encourage a majority of statesto adopt the principle that the use of the death penaltyundermines human dignity calling upon all States thatstill maintain the death penalty to establish a morato-rium on executions with a view to abolishing the deathpenalty, and the Coalition decided to take action for thishistoric resolution. This decision also marked a water-shed in the history of the WCADP as it is its first inter-national campaign of advocacy directed towards statesand international organizations.

For the first year of the campaign, the Coalition hasactively participated in the advocacy for the adoption ofthe resolution by dedicating the 5th World Day againstthe death penalty on this issue. It brought together morethan 160,000 signatures for a petition and contacted105 countries. In 2008 it continued its efforts and led acampaign to increase support for the new resolution andto ensure its implementation.

Today, the movement for abolition grows larger andlarger. More states have abolished the death penalty,more moratoria on executions have been implementedand proposals for abolition in law have proliferated

throughout the world. 104 countries have now abolishedin law, 35 countries have a moratorium and out of the58 countries where the death penalty is still applied, 25countries execute prisoners every year. In December2010, a new resolution for a moratorium on the use ofthe death penalty will be presented for a vote and theCoalition will continue its action.This report offers strategies and prospects for increasedsupport for the new resolution and its implementation.It also feeds the report of the UN Secretary General forDecember 2010 on progress made in the implementa-tion of resolutions 62/149 and 63/168. It is released forthe 4th World Congress against the death penalty,organized by ECPM with the partnership of the WCADPin Geneva, headquarters of UN bodies for human rights.

The World Coalition against the Death Penalty

The World Coalition Against the Death Penalty was createdin Rome in 2002. It includes over 100 organizations in 38 coun-tries on 5 continents, including NGOs, professional organiza-tions, trade unions and local authorities.

Executive Secretariat: ECPMSteering Committee members: Amnesty International, ArabCoalition Against the Death Penalty, Collectif Unitaire Nationalde Soutien Mumia Abu-Jamal, Coalition nationale pour labo-lition de la peine de mor au Maroc, Community of SantEgidio,Death Penalty Focus, Culture pour la Paix et la Justice,Ensemble contre la peine de mort, International Federationof Human Rights Leagues, Fdration Syndicale Unitaire,International Federation of Action by Christians for theAbolition of Torture, Lawyers For Human Rights International,Murder Victims Families for Human Rights, NationalAssociation of Criminal Defence Lawyers, Paris Bar, PenalReform International, Puerto Rico Bar Association, TaiwanAlliance to End the Death Penalty, Texas Coalition to Abolishthe Death Penalty, Tuscany Region.Other members: ACAT France, Advocates for HumanRights, ALIVE, American Friends Service Committee,Association for the Rights to Live, City of Andoain, AssociationMarocaine des Droits Humains, Bahrain Human RightsSociety, Belarusian Helsinki Committee, City of Braine lAlleud,Centre for Prisoners Rights, Centre marocain des droitshumains, Coalition nationale tunisienne contre la peine de mort,Collectif des Organisations des Jeunes Solidaires du Congo-Kinshasa, Comit des Observateurs des Droits de lHomme,Comitato Paul Rougeau, Comit Syndical Francophone de


[ Preface

Stop the death penalty!The world decides

lEducation et de la Formation, Confrence Internationale desBarreaux, Congolese Youth Movement, Conseil National pourles Liberts en Tunisie, CURE, Death Watch International, Cityof Dijon, Droits et Paix, Federation of Liberal Students, ForumAfricain contre la Peine de Mort, Forum 90 Japan, Forummarocain pour la Vrit et la Justice, Foundation for HumanRights Initiative, Hands Off Cain, Hope & Justice, HumanRights Watch, Human Rights Commission of Pakistan, HURI-LAWS, International Organization for Diplomatic Relations,Iranian Human Rights Activists Groups in EU and NorthAmerica, Iraqi Alliance for the Prevention of the death penalty,Iraqi Center for Human Rights and Democracy Studies, ItalianCoalition to Abolish the Death Penalty, Journey of Hope,KontraS, Law Students Forum, Legal and Human RightsCentre, Lifespark, Ligue des Droits de lHomme, Ligue ivoiri-enne des Droits de lHomme, Lutte Pour la Justice, City ofMatera, MEDEL, Mmes droits pour tous, Mothers AgainstDeath Penalty, Mouvement contre le Racisme et pour lAmiti

entre les Peuples, National Coalition to Abolish the DeathPenalty, National Lawyers Guild, Nigerian Humanist Movement,Observatoire marocain des prisons, Observatoire National desPrisons, Ordine Provinciale dei Medici-Chirurgi e degli odon-toiatri di Firenze, Ordre des avocats du Barreau de Lige, Ordredes avocats de Genve, Ordre des avocats des Hauts deSeine, Ordre des Barreaux francophones et germanophonesde Belgique, Organisation marocaine des droits humains,Pacific Concerns Resource Centre, Palestinian Centre forHuman Rights, Pax Christi Uvira asbl, People of Faith Againstthe Death Penalty, Puerto Rican Coalition against the DeathPenalty, RADHOMA, RAIDH, City of Reggio Emilia, Rights andDemocracy, ROTAB, Stop Child Executions,SYNAFEN, UnionChrtienne pour le Progrs et la Dfense des Droits delHomme, Unis pour labolition de la peine de mort, US HumanRights Network, City of Venice, Victorian Criminal JusticeCoalition, Womens Information Consultative Center, WorldOrganisation against Torture.


[ Preface

Stop the death penalty!The world decides

menting the Resolution with a view to further consider-ation of the issue the following year. Fifty-one memberstates provided information to the UNSG to that effectand a number of non-governmental organisations(NGOs) supplied additional information.

UNGA Resolution 63/168, which was passed inDecember 2008 and which repeated the call for a mora-torium, confirmed the trend and a further examinationof the issue is scheduled for the sixty-fifth UNGA inDecember 2010.

The UN resolutions mentioned above, which I will referto from now on as the Resolutions for a universal mora-torium, are generally felt to constitute the culminationof a growing international move away from the deathpenalty in recent years. Some consider them historic.In December 2007, one hundred and four states votedin favour of the text and eighty-seven went so far as toco-sponsor it; in 2008 one hundred and six states votedin favour and there were eighty-nine co-sponsors.Although the texts are not binding for the State parties,they nevertheless carry significant moral and politicalweight. Other declarations8 have followed where the UNResolutions led. On 24th November 2008, for instance,the African Commission on Human and Peoples Rightsadopted a resolution calling on African states toobserve a moratorium on executions. On 14th and 15thJuly 2009, civil society organisations from the Arab worldmet in Madrid to debate the issue of the death penaltyas it applies to their countries and to urge their govern-ments to curb its use9. On 3rd July 2009, theParliamentary Assembly of the Organisation for Securityand Cooperation in Europe (OSCE) repeated its recom-mendation in favour of a moratorium and the abolitionof the death penalty.

The momentum in favour of abolition met oppositionfrom retentionist countries10, however. On 11th January2008, fifty-five countries circulated a Note Verbale11 dis-sociating themselves from the moratorium. This docu-ment expressed officially the categorical opposition ofthe countries concerned to any attempt to impose amoratorium or the abolition of the death penalty andadduced the principle of non interference in states inter-nal affairs in support of this stance12. The following year,a second Note Verbale was circulated in response tothe second UN Resolution and retentionist states again

The UN Resolutionson a Universal Moratorium


The debate over the death penalty is probably as oldas the United Nations Organisation itself. Sixty yearson from the Universal Declaration of Human Rights, thetrend around the world is in favour of its abolition.International conventions on basic human rights havelimited the uses of the death penalty over time. VariousUnited Nations resolutions4 and both international andregional treaties have placed either explicit or implicitrestrictions on its use. These included the resolutions ofthe former UN Commission on Human Rights5 and anumber of treaties and conventions with both interna-tional and regional scope6 such as the InternationalCovenant on Civil and Political Rights, the Conventionon the Rights of the Child, the Convention againstTorture and Other Cruel, Inhuman or DegradingTreatment and the African Charter on Human andPeoples Rights. Other treaties are clearly abolitionist.The Second Optional Protocol to the InternationalCovenant on Civil and Political Rights, which wasadopted by the United Nations General Assembly in1989 and came into force on 11th July 1991, seeksstatutory abolition of the death penalty and bans exe-cutions in the State parties. Three further texts have thesame aim in view but are regional in scope. They areprotocols 6 and 13 to the European Convention onHuman Rights concerning the abolition of the deathpenalty and the protocol to the American Convention onHuman Rights to abolish the death penalty, which wasadopted by the General Assembly of the Organizationof American States in 1990. Mention should also bemade of the Rome Statute, which was adopted on 17thJuly 1998 and which created the International CriminalCourt. Although it deals with the most serious crimes,such as genocide, crimes against humanity and warcrimes, the Rome Statute does not include the deathpenalty among the punishments it permits. Hence, anissue that was originally considered to fall within thepurview of individual countries legal systems has cometo be seen as a matter of basic universal human rights.

On 18th December 2007, an historic resolution in favourof a universal moratorium7 on executions was adoptedby the United Nations General Assembly (UNGA).Resolution 62/149 invited all states which still retainedthe death penalty to declare a moratorium on executionswith a view to eventual abolition. The United NationsSecretary General (UNSG) was mandated to prepare areport on what progress had been made towards imple-


expressed their opposition. Fifty-three states signed theNote Verbale on this occasion.

At the same time, several countries joined the ranks ofthe abolitionists. These included Albania, Kazakhstan (forordinary crimes only) and Rwanda (2007), Uzbekistanand Kyrgyzstan (2008), Burundi and Togo (2009).

Where are we, then, on the subject of the dealth penaltyas we prepare to look again at the issue at the 2010UNGA? What impact have the UN Resolutions callingfor a universal moratorium had on retentionist countriesand those which are unsure about the issue? Have theyencouraged the global trend towards abolition or havethey, instead, contributed to the creation of an anti-abo-litionist front?

This report attempts to answer these questions by brieflyreviewing the situation in seventeen countries wheresome progress towards abolition is evident but where,with the exception of Togo, no formal decision has beenmade on the subject. The countries are divided into threegroups. The first group of countries which have a mora-torium on executions, some of them have held this sta-tus for a long time, voted in favour of the Resolutionsfor a universal moratorium (Algeria, Benin, Burkina Faso,Madagascar, the Russian Federation). The second groupof countries also have a moratorium on executions butabstained during the vote on the Resolutions and didnot sign the Note Verbale (Ghana, Liberia, Morocco, theRepublic of Korea, Togo13). Finally, there are the coun-tries whose position on the subject is ambiguous(Jordan, Lebanon, Kazakhstan, Belarus, Nigeria, India,the United States).

The UN Resolutionson a Universal Moratorium

In Algeria, Benin, Burkina Faso, the Democratic Republic of Congo, Gabon, Madagascar, Mali, Nauru,Russia, Sri Lanka and Tajikistan, the fight for abolition is already well advanced. These countries all havea moratorium on executions in practice and voted in favour of the two UN Resolutions for a universal mora-torium. A number of them even co-sponsored the Resolutions. This was the case for Gabon, Benin, Algeriaand Sri Lanka, the last being the only Asian country with a moratorium on executions to do so. Five ofthese countries are only one step away from enshrining abolition in law. Although, in theory, this shouldbe the easiest hurdle to clear, in political terms it is, in fact, the most difficult.

Democracy). The government rejected the bill citingsecurity reasons relating to the fight against Islamist ter-rorism and organised crime and because the publicopinion was not in favour of the measure. A heateddebate in the press ensued with secular abolitionists onone side and anti-abolitionist Islamists on the other. Thelatter consider abolition of the death penalty to beagainst both the letter and the spirit of the Koran.

Among those fighting against the death penalty, withthe tacit support of parts of the media, are associa-tions set up to defend human rights such as the Liguealgrienne des droits de lHomme (the Algerian HumanRights League) and the Ligue algrienne de dfensedes droits de lHomme (the Algerian Human RightsDefence League); the CNCPPDH (National ConsultativeCommission for the Promotion and Protection ofHuman Rights National Consultative Commission forthe Promotion and Protection of Human Rights), whichhas expressed its support for the abolition of the deathpenalty several times since it was set up by presiden-tial decree in 2001; and a number of well-known fig-ures such as the lawyer and former Chair of the Liguealgrienne des droits de lHomme, Miloud Brahimi, whoargues in particular for the ratification of the SecondOptional Protocol to the International Covenant on Civiland Political Rights (ICCPR), aiming at the abolitionof the death penalty. In the political arena, itis Rassemblement pour la culture et la dmocra-tie which drives the issue forward. On 10th October2009, the Ligue algrienne de dfense des droits delHomme put together an alliancecoalition against thedeath penalty and an initial meeting was held in whichindividuals representing a variety of different schoolsof thought took part. Algeria is also a member of theregional coalition against the death penalty, which waslaunched in Jordan in July 2007. Nevertheless, the levelof mobilisation in Algerian society is lower than in neigh-bouring countries.


[ Group 1

One step away from Statutory Abolition

[ ALGERIA Number of death sentences handed down: 121

new death sentences between April andDecember 200914

De facto moratorium on executions since 1993 Last execution in 1993 Voted for and co-sponsored the two UN

Resolutions for a universal moratorium Supplied information for the 2008 UNSGs report

There has been a moratorium on the application of deathpenalty in Algeria since 1993. However, there has alsobeen a very high number of death sentences handeddown. In fact, Algeria ranks among the countries whichhand down most death sentences alongside China, Iranand Pakistan. Exact figures are hard to bydefine butthere have been between one hundred and one hun-dred and fifty death sentences a year on average sincethe year 200015; Amnesty International reports two hun-dred death sentences in 2008 and around one hundrednew death sentences were handed down between Apriland November 200916, primarily to People belonging toIslamist groups in terrorism cases.

Abolition in Algeria has been expected ince 2004, whenthe country ratified the new Arab Charter on HumanRights17. Many attempts have been made to get an abo-lition bill passed. In 2006, one such attempt was madeby Farouk Ksentini, Chair of the National ConsultativeCommission for the Promotion and Protection ofHuman Rights (CNCPPDH) and a fervent supporter ofabolition. The bill received more support but met withopposition from the vast majority of members of parlia-ment with the exception of those belonging to the work-ers party. The last such attempt was made by MP AliBrahimi of the secular party Rassemblement pour la cul-ture et la dmocratie (the Union for Culture and

Algeria was the only Arab country to support the mora-torium when the historic votes on the UN Resolutionstook place in December 2007 and 2008. It even spon-sored the Resolutions and provided the UNSG with theinformation it requested for his report. When Algeria wentthrough the UN Council on Human Rights UniversalPeriodic Review18 procedure, it was congratulated onits attitude. Abolition, however, has not yet beenachieved. The authorities claim they have other priori-ties, such as rebuilding the country, attending to the dif-ficult process of national reconciliation and fighting ter-rorism, and some members of parliament are cautiousgiven the position of Islamists who support capital pun-ishment as part of Sharia law19.

[ BENIN Number of death sentences handed down: last

death sentence in 1999 De facto moratorium on executions since 1993 Last execution in 1993 Voted for and co-sponsored the two UN

Resolutions for a universal moratorium Supplied information for the 2008 UNSGs report

Since independence in 1960 Benin has only executedprisoners sentenced to death on three occasions, thelast of which was in 1993. The most recent death sen-tence was handed down in 1999 following a bank rob-bery in Cotonou. The list of crimes which are subject tothe death penalty by law remains long, however.

In 1999, Benins Constitutional Court found that use ofthe death penalty was permissible under the countrysconstitution. In 2006, the government and a large num-ber of members of the National Assembly decided tokeep the death penalty on the countrys statute bookssimply as a deterrent to avoid Benin becoming a refugefor crooks and criminals whether home grown or fromabroad. During the debate, the Minister of Justice saidthat the death penalty should stay on the statute bookas a warning to criminals, if it does not the law will losesomething of its weight and impact20. There has beenno change in the situation since then and those in gov-ernment, parliament and legal circles use the argument

that public opinion is not in favour of abolition to justifytheir position. President Yayi Boni, who took office in2006, has not yet given his view on the issue except fora comment made during a visit to Spain, when he indi-cated publicly that he would undertake to work onthat.21

Benin voted in favour of and co-sponsored both UNResolutions for a universal moratorium.

[ BURKINA FASO Number of death sentences handed down: last

two death sentences in November 2009 De facto moratorium on executions since 1988 Last execution in 1988 Voted for the two UN Resolutions for a universal

moratorium Did not supply information for the 2008 UNSGs

report On 19th March 2009 Burkina Faso committeditself, before the United Nations Human RightsCouncil, to become a de jure abolitionist stateby the time of its next UPR in 2013 ; In May2009, the country gave a commitment, beforethe African Commission on Human and PeoplesRights, to ratify the Second Optional Protocol tothe ICCPR in the near future.

Burkina Faso has only used the death penalty twice (in1984 and 1988) and has not, therefore, carried out anexecution since 1988. The death penalty is still on thestatute books, however, and the list of crimes subjectto capital punishment is long. Burkinabe courtshanded down death penalties in February 200822 andNovember 200923.

Burkinabe legislation stipulates that those sentenced todeath should be treated humanely. However, such legalguarantees are rarely complied with in practice due tolack of resources. Few people in Burkina Faso are infavour of abolition. Cases of mob justice are not uncom-mon even for minor crimes such as stealing and thesesometimes lead to the death of the offender. Most peo-


[ Group 1


ple feel that, since the death penalty is no longer used,there is no problem. There is still a gap separating thevalues of the people from the values that the State isattempting to espouse.

In 2007 and 2008, Burkina Faso voted for theResolutions for a universal moratorium. Following onfrom the countrys Universal Periodic Review inDecember 2008, on 19th March 2009, Burkina FasosHuman Rights Minister Mme Salamata Sawadogo,announced to the United Nations Human RightsCouncil that she believed Burkina Faso would havebecome a de jure abolitionist country by the time of itsnext UPR four years later24. In May 2009, Burkina Fasopromised the African Commission on Human andPeoples Rights that it would shortly ratify the SecondOptional Protocol to the ICCPR. A commission wasestablished to review and amend the penal code to bringit into line with the countrys international commitments.It will present its findings in March 2010. Given the tenorof its work so far, however, some commentators feel thatit is unlikely, in the end, to remove the death penalty fromthe statute books.

The Burkinabe authorities are generally in favour of abo-lition but say they prefer parliament to take the initiativeon the subject. However, most members of parliamentstill support the death penalty25. To date two abolitionbills have been presented to parliament but did notreceive government support due to rising crime levelsin Burkina Faso. The issue of rising crime levels and,in particular, the problem of highway bandits has per-suaded members of parliament who were wavering notto speak in favour of abolition. In addition, the fact that2010 is an election year in Burkina Faso does not helpthe abolitionist cause since members of parliament willrefuse to give a view to avoid alienating parts of theirelectorate. Some commentators feel that the support ofthe public must be obtained before abolition can go for-ward. Many NGOs (such as Mouvement burkinab desdroits de lHomme et des peuples the Burkinabe Humanand Peoples Rights Movement) are fighting for aboli-tion. One would think, therefore, that support for themeasure was clear. However, it would seem that inBurkina Faso the death penalty is a useful way of keep-ing the public happy.

[ MADAGASCAR Number of death sentences handed down:

unknown De facto moratorium on executions since 1958 Last execution in 1958 46 prisoners on death row in September 2007,

57 in March 2009, 54 in May 200926

Voted for the two UN Resolutions for a universalmoratorium

Did not supply information for the 2008 UNSGsreport

Madagascars penal code allows for capital punishmentand the death penalty is regularly handed down by thecountrys courts. However, no executions have takenplace since 1958. A death sentence may not be car-ried out until a petition for a pardon has been rejectedand even when the prisoner has not petitioned for a par-don, the death penalty is not carried out unless there isan explicit refusal to grant a pardon.

Until recently, those on death row in Madagascar weresubject to treatment which did not conform to basicacceptable minimum standards and there were casesof prisoners starving to death as recently as September200927. However, the conditions under which prison-ers are detained in the country is now the subject ofattention from a number of associations and other play-ers, and reform of the prison system is underway.

In 2006, an abolition bill was presented to Parliamentby the Ministry of Justice. Progress was very slow andthe bill finally became bogged down in the Senates legalcommittee and never received a reading at a plenarysession.

The governmental authorities were, and say that theystill are, largely in favour of abolition. The difficulty, theysay, is that some members of parliament are not. Thesemembers of parliament argue that the death penalty isa deterrent and, in addition, it helps them to maintainsupport among their client networks. The issue seemsto be linked to the recurring problem of the dahalo orzebu rustlers who wreak havoc in some parts of thecountry. In Madagascan culture, the zebu is sacred andits worth, therefore, goes far beyond its market value.It would seem that, in the collective consciousness, a


[ Group 1


threat to the zebu merits harsh punishment. Manydahalo are remanded in custody prior to trial and leftthere for long periods28 and cases have been reportedof zebu rustlers being deprived of food and attention totheir other basic needs in prison. The traditional formof community justice, known as Dina, should also bementioned. Although Dina is now controlled by legis-lation, it has produced cases of summary execution andcontinues to do so, even today, particularly in casesinvolving dahalo.

When presenting its report to the Human RightsCommittee in accordance with the requirements of theICCPR in 2005, and again in its report to the HumanRights Council for the Universal Periodic Review inFebruary 2010, the Madagascan government contenteditself with pointing out the countrys long moratorium andthe fact that the death penalty is systematically com-muted to imprisonment. Madagascar voted for the twoResolutions on a universal moratorium but did not co-sponsor them. Neither has it ratified the SecondOptional Protocol to the ICCPR.

For the moment, matters have reached an impasse.Very little is being done to move the issue along, eitherby the government or the media, which occasionallycarry comments that lean towards favouring the deathpenalty, or by civil society organisations, which are gen-erally rather weak. Only Action des Chrtiens pour labo-lition de la torture (ACAT) seems to be active on the sub-ject. The most recent event it organised was ademonstration in the countrys capital to coincide withthe International Day against the Death Penalty on 10thOctober 2008.

In theory, Madagascar is prepared to consider abolitionand if it is possible to encourage treatment of the dahaloissue on the basis of the facts alone, there is no rea-son, beside the political crisis into which the country hasdescended since the beginning of 2009, whyMadagascar should not join the ranks of Africas aboli-tionist countries.

[ THE RUSSIAN FEDERATION De facto moratorium on executions since 1996

and on death sentences since 2000 on the basisof a decision of the Constitutional Court on 2ndFebruary 2000, which was extended by a furtherdecision on 19th November 2009

Last execution in 1996 Voted in favour of the two UN Resolutions for a

universal moratorium. Did not supply information for the 2008 UNSGs

report

The death penalty is no longer carried out in Russia buthas never been abolished in spite of Russias obligationto ratify Protocol 6 to the European Convention onHuman Rights concerning the abolition of the deathpenalty within three years of joining the Council ofEurope, which it did in February 1996. Russia hassigned the protocol but the Duma (the Russian parlia-ment) is still studying the text and has not yet ratified it.Russia is the last member state of the Council of Europewhich have not ratified this Protocol 6.In order to comply with Russias international obligations,the then-president, Boris Yeltsin, imposed a moratoriumon executions in accordance with presidential decree no.724, which refers to less and less use of the deathpenalty in accordance with the obligations that Russiahas taken on in joining the Council of Europe . In prac-tical terms, the President now considers virtually nocases and by law a death sentence cannot be carriedout until the president has rejected a petition for a par-don.The last execution took place on 2nd September 1996.On 1st January 1997, a new penal code came into forceto replace the 1960 penal code. The new code consid-erably reduced the number of crimes for which a deathsentence can be handed down. It can now only be usedfor extremely serious crimes against the person and can-not be used for women, minors or men over sixty-fiveyears of age. Russian courts continued to hand downdeath sentences until 1999. On 3rd June 1999, a pres-idential decree commuted the sentences of all sevenhundred and three prisoners who were under a deathsentence in the country. On 2nd February 2000, theConstitutional Court decided that the death penalty wasunconstitutional until a system of courts with juries couldbe rolled out across the country to comply with the new


[ Group 1


procedures outlined for the criminal justice system. SinceChechnya was not due to move to the jury system until1st January 2010 (having announced the move in 2007),the effect of the Constitutional Courts decision was toban the death sentence until 2010. Meanwhile, on 20thFebruary 2008, the legislative commission of the Dumapresented a bill entitled Regarding the abolition of thedeath penalty in the Russian Federation. However,there have been no further developments since then29.

As the legal moratorium was about to come to an end,the Constitutional Court took a further decision on 19thNovember 2009. It will not, therefore, be possible tocarry out death sentences when the moratorium comesto an end even if the jury system is operational acrossthe country. The President of the Court, Valery Zorkin,has said that the ball is now in the Dumas court sincethe Constitutional Court cannot force the Duma to rat-ify Protocol 6 concerning the abolition of the deathpenalty.

The Russian Presidents representative at theConstitutional Court, Michael Krotov, has let it be knownthat the executive favours abolition but cannot imposeits view on the Duma. Boris Gryzlov, the Dumasspokesman, reacted by saying that the parliament wouldfind it hard to ratify the protocol in the absence of a con-sensus in favour of the move among the public. The lat-est surveys show that around two thirds of Russians stillsupport the death penalty.

During its Universal Periodic Review in February 2009,Russia indicated that ratification of the Second OptionalProtocol to the ICCPR would depend in large part onpublic opinion on the issue30. At a press conference heldin Moscow on 11th March 2009, the Co-Rapporteur ofthe Parliamentary Assembly of the Council of Europe,Theodoros Pangalos, questioned the argument thatRussian public opinion was not yet ready for the move.Russia often refers to this argument to defer abolishingthe death penalty.

The Constitutional Court has, therefore, banned carry-ing out death sentences and the decision, according tothe Courts president, is final. It is a decision which hasbeen welcomed by Russian experts and representativesof the orthodox church, which wields significant influ-ence in Russia. Their hope is that Russian public opin-ion will change and that a time will come when it sup-ports abolition31. The Court has, in fact, instituted defacto abolition. It is now up to the Duma to confer legallegitimacy on the decision and this may take time32. Thegood will of Russian authorities which finally acceptedto ratify Protocol 14 of the European Convention onHuman Rights in January 2010 gives hope to civil soci-ety about a potential abolition of the death penalty.


[ Group 1


[ GHANA Number of death sentences handed down: 3

death sentences in 2009 De facto moratorium on executions since 1993 Last execution in 1993 104 prisoners on death row in 200833

Abstained during the vote on the two UNResolutions for a universal moratorium

Did not supply information for the 2008 UNSGsreport

Made a statement before the Human RightsCouncil during its 2008 UPR according to whichthe government intended to review theConstitution after the 2008 elections and toraise the issue of abolition in that context.

Ghana seems to have settled comfortably into a de factomoratorium and the former president, John Kufuor, lentweight to the belief that this is the case by regularlygranting pardons and amnesties as he is permitted todo by the countrys constitution. There have been noexecutions since twelve prisoners were put to death forarmed robbery and murder in July 1993. In April 2000,one hundred death row inmates had their sentencescommuted to life imprisonment. In June 2003, one hun-dred and seventy-nine prisoners who had been await-ing their fate on death row for at least ten years weregranted an amnesty. To mark the fiftieth anniversary ofGhanas independence, the President freed or reducedthe sentences of one thousand two hundred and sixprisoners, including thirty-six death row inmates. On 6thJanuary 2009, just before he stepped down as presi-dent, Mr. Kufuor granted pardons to over five hundredprisoners. The measure applied primarily to prisonerson death row whose sentence was to be commuted tolife, or to twenty years imprisonment for those who hadalready served ten years in prison.Aside from the pardons and amnesties which wereawarded with increasing frequency by a president who

liked to be referred to as the gentle giant of Africa, theofficial position has not progressed. However, inFebruary 2001, Nana Akufo-Addo, then Justice Ministerand currently Minister for Foreign Affairs, expressed hisopposition to the death penalty publicly. But on 31stMarch 2009, the current Justice Minister and ChiefPublic Prosecutor Betty Mould-Iddrisu announced thatthe government did not intend to introduce any reformsthat would affect the death penalty during its currentterm and referring only to the possibility that the sub-ject might be looked at again at some future date34.

Although Ghanas penal code stipulates the deathpenalty as a punishment for armed robbery, treason andfirst degree murder, Amnesty International (AI) Ghana hasalways publicly opposed the use of the death penaltyfor any crime. AI Ghana has been working for the abo-lition of the death penalty for many years and the organ-isation publishes annual figures on the subject. It isthese figures that tell us that there were one hundredand four prisoners on death row in Ghanas prisons in2008, three of whom were women. After the pardonsof January 2009, AI urged the incoming president JohnAtta Mills to move up a gear on the road towards abo-lition. In recent years, a number of influential figures havealso spoken out on the issue. These include JoeGhartey, a former Minister of Justice and Chief PublicProsector35.

In spite of these efforts, Ghana abstained during the voteon the two UN resolutions and its courts continue tohand down the death sentence. According to AI, twomen and one woman were sentenced to death in 2008and a further three people received the same sentencein 2009: a twenty-three-year-old farmer on 8th June200936 and a thirty-two-year-old farmer and anotherforty-two-year-old man on 4th August. All were sen-tenced for murder but in two separate incidents, withthe last two men being sentenced by the same court,the Ho High Court, at which Kofi Essel Mensah presides.


[ Group 2

Countries which are Abolitionist in Practicebut Resist Making their Position Official

Cameroon, Ghana, Kenya, Liberia, Malawi, Morocco, the Republic of Korea, Togo, Tanzania and Zambiaare all abolitionist in practice and some have been so for many years. However, their courts continue tohand down death sentences and they are reluctant to move any further along the road towards abolition.Togo alone has recently passed pro-abolition legislation (in 2009), while, at the opposite extreme, Liberiahas reintroduced the death penalty having previously abolished it. All of these countries abstained dur-ing the votes on the UN resolutions for a universal moratorium. However, none of them signed the NoteVerbale to dissociate themselves from the Resolutions. Five of these countries are discussed below.

Some commentators feel, therefore, that there areprospects for abolition in Ghana. During the countrysUPR in May 2008, Ghanas Minister of Justice said thatthe article in the countrys constitution which deals withcapital punishment can only be amended by referendumin a process which takes six months, but that the gov-ernment intended to review the Constitution after the2008 elections and that the issue of abolition would beraised again then.

[ LIBERIA Number of death sentences handed down: 1

death sentence in 2009 De facto moratorium on executions since 2000.

Last execution in 2000 Ratified the Second Optional Protocol to the

ICCPR banning executions in 2005, but a 2008law reintroduced capital punishment

Abstained from the vote on the two UNResolutions for a universal moratorium

Did not provide information for the 2008 UNSGsreport

After fourteen years of a bloody civil war which had leftthe country on its knees, a peace agreement signed inSeptember 2003 established the national transitionalgovernment and mandated it to rebuild the countrysinstitutions. In September 2005, the government ratifiedthe Second Optional Protocol to the ICCPR, which aimsat the abolition of the death penalty. The treaty imme-diately acquired legal status on Liberian soil. More thaneighty international treaties were ratified on the same day.

The ratification of the Second Optional Protocol forbidsall executions and encourages State parties to abolishcapital punishment within their jurisdiction. However,despite this international commitment, on 22nd July2008 President Ellen Johnson Sirleaf promulgated a lawthat had been adopted on 15th July of the same yearby the Liberian parliament, reintroducing the deathpenalty by hanging for three crimes: armed robbery, ter-rorism and stealing of vehicles if the theft resulted in thedeath of a person. The President was unable to resistthe pressure of public opinion and her political oppo-

nents who, in the absence of a police force adequatelytrained and equipped to curb serious crime, weredemanding harsher punishments. At the time, thePresident had reiterated her commitment to abolitionand had decreed that no execution would take placewhile she was in office. She had also promised a reviewof the situation in 2009, but it would appear that thisreview has not taken place. Quite the contrary, as, inSeptember 2009, a man was sentenced to death atTubmanburg in the county of Bomi for the murder of histwo children and the attempted murder of his wife.37

While we must await further developments in the above-mentioned case, the sentence shows that, in a Liberiathat remains politically fragile and which will hold pres-idential elections in 2010, a return to formal abolition ofthe death penalty is not likely to occur in the near future.

Given the reintroduction of capital punishment, onemight have expected the country to oppose the UNResolutions for a universal moratorium. However,Liberia chose to abstain and did not sign the NoteVerbale. Liberia will undergo Universal Periodic Reviewduring the ninth session of the Human Rights Councilin December 2010.

[ MOROCCO Number of death sentences handed down: 4

death sentences in 200938

De facto moratorium on executions since 1993 Last execution in 1993 Abstained from the vote on the two UN

Resolutions for a universal moratorium Provided information for the 2008 UNSGs report

The debate over the death penalty in Morocco is one ofthe most advanced in the Middle East & North Africa andextends beyond the restricted circle of human rights asso-ciations. The last execution dates back to 1993. Sincecoming to power in July 1999, King Mohamed VI has notsigned a single execution decree despite a May 2003 lawagainst terrorism that increased the number of crimessubject to the death penalty to such an extent that lawyerscan no longer agree on how many there are.


[ Group 2


In general, the situation in Morocco remains ambiguous.As early as 2004, the Justice Minister spoke in favourof abolition, provided it was introduced by stages. In2008, two government measures confirmed this inten-tion: firstly, a new draft penal code that sought to reduceto eleven the number of crimes punishable by the deathpenalty, and secondly, the signing of bilateral extraditionagreements which replaced the death penalty with theseverest sentence that could be awarded by the courtsof the State to whom the extradition request was beingmade. As a general rule, magistrates show restraint andapply article 146 of the penal code, which allows themto reduce a sentence if they consider it to be too harsh.

Yet these positive signs are contradicted by more con-servative attitudes. Terrorism remains the authoritiesmain justification for the increase in death sentenceshanded down in recent years. The increase has takenplace in spite of the fact that the King, the leader of thefaithful, whose authority exceeds that of the High Councilof Oulemas (theologians), regularly demonstratesclemency. On 18th November 2005, ten thousand pris-oners received a royal pardon, and among them weretwenty-five who saw their death sentence commuted tolife imprisonment. On 28th February 2007, to celebratethe birth of the Kings daughter, an amnesty was grantedto nine thousand prisoners including fourteen prisonerson death row, a gesture which at the time was inter-preted as implying support for the formal abolition of thedeath penalty. Yet during the same period, four deathsentences were confirmed. In July 2009, thirty-two pris-oners on death row saw their sentence commuted tolife imprisonment for the tenth anniversary of the Kingsaccession to the throne, yet, a few months earlier, thecourts in Mekns had once again sentenced three peo-ple to death for murder.

The main motivation behind the movement in favour ofabolition in Morocco may be the desire to break with theera of King Hassan II and to reinforce Moroccos imageas a country that respects human rights. TheConsultative Committee on Human Rights (CDDH) wascreated in 1999. This is a national institution which hasbeen given a royal mandate to act in an advisory capac-ity, to propose action and to drive forward progress onhuman rights. It is one of the most active players on theissue of the abolition of the death penalty and the rati-fication of the ICCPR. In terms of civil society, the abo-

litionist movement is led primarily by the Coalition maro-caine contre la peine de mort (Moroccan Coalitionagainst the Death Penalty), which was created on 10thOctober 2003 and brings together seven NGOs.Individually, the members of the coalition are very activein favour of abolition and organise events which are gen-erally widely reported. The media is also supportive onthe issue, seeing the struggle against the death penaltyas a precursor to democracy.

At the political level, the religious argument that is oftenused in other countries in the region to oppose aboli-tion of the death penalty seems less relevant in Moroccosince the countrys legislation does not include any ref-erence to religion. The most important Islamic party inthe country, the Parti de la justice et du dveloppement(Justice And Development Party), has long been silenton the issue, although it did recently oppose the pro-posal to include a ban on capital punishment in theConstitution.

It would seem, therefore, that conditions are ripe for theabolition of the death penalty in Morocco in the nearfuture. However, legislation has not yet been forthcom-ing and the risk of stagnation is real. In 2007 and 2008,Morocco abstained during the votes on the UNResolutions. In October 2008, the Justice Minister,Abdelwahed Radi, sought to justify this abstention bydeclaring that the current de facto moratorium demon-strates that the country is in a phase of reflection.39

The challenge for Morocco is not to confuse giving dueconsideration to an issue with playing a waiting game.As indicated previously, its neighbour, Algeria, has co-ponsored the resolutions for a universal moratorium.


[ Group 2


[ REPUBLIC OF KOREA (SOUTH KOREA) Death sentence handed down in 200940

De facto moratorium on executions in placesince 1998

Last execution in 1997 58 people on death row on 1st January 2008. Abstained during the vote on the two UN

Resolutions for a universal moratorium Did not provide information for the 2008 UNSGs

report

Since 1997, when the execution of twenty-three pris-oners was ordered by the former president, Kim Young-Sam, a number of bills in favour of abolition have beenintroduced. The first attempt dates from December 1999and the latest, tabled by former Member of ParliamentYoo In Tae, has just expired, despite having received thesupport of one hundred and seventy-five members ofparliament. Two new proposals, known as special bills,are currently going through parliament. One was intro-duced in September 2008 by Seon Young Park of theLiberty Forward Party and the second, in October of thesame year, by Bookyum Kim of the Democratic Party.

Under South Korean law, eighty-eight crimes are pun-ishable by death, the crime of treason being the only onefor which it is compulsory. In practice, however, judgeselect to limit the death sentence to crimes where the actshave an impact on human life. The Constitutional Courthas made a judgement on capital punishment only once.This happened in 1996, when the Court found that thedeath penalty was compatible with the Constitution byseven votes to two41. In 2009, the question of whetherthe death penalty was constitutional was once againraised before the Court and its judgement is awaited.This is the first time that a lower court has referred thematter to the Constitutional Court. To date, only humanrights organisations had done so.42

The National Human Rights Commission43, establishedin November 2001, supports abolition and made a rec-ommendation to that effect in 2005. In 2003, it com-missioned a survey which showed that whilst publicopinion remained generally in favour of the deathpenalty,44 there was support for a reduction in the list ofcrimes subject to capital punishment. Religious groups,

particularly Catholic groups,45 play an important role inthe abolition debate and regularly examine the condi-tions under which prisoners are detained.

It would seem that in South Korea the abolitionist move-ment is, above all, dependent on the political forces inpower. The President, Kim Dae-Jung, who decreed anon-official moratorium on executions in February1998, is a former dissident and was, himself, con-demned to death in 1980. Yu In-Tae, the Member ofParliament who proposed the bill to outlaw the deathpenalty in 2004 was also sentenced to death under theregime of Park Chung-Hee in 1974.

In general, public opinion remains favourable to the sus-pension of executions but beyond a de facto morato-rium no consensus is likely to be reached. On 31stDecember 2007, the then President, No Muhyeon par-doned six prisoners who had been sentenced to death46.This decision, which was completely unexpected andwhich does not seem to be linked to the adoption of thefirst UN Resolution at around the same time, was con-sidered by human rights organisations as a step in theright direction. In May 2008, the Korean Republic under-went the Universal Periodic Review process. The coun-trys representatives contented themselves with explain-ing that a consensus had not yet been reached at anational level regarding whether capital punishmentshould be upheld and that at the time of the adoptionof the UN Resolution in 2007, discussions about thedeath penalty had been held at ministerial level.

The country abstained during the votes on theResolutions for a universal moratorium in 2007 and2008. During the vote for the second Resolution, thegovernment announced that it had not altered its 2007position, because the declarations contained in the twoResolutions were, in their opinion, too radical, and didnot correspond to public opinion in South Korea. Someconsider this position to be disappointing, particularlyas the country has been a member of the United NationsHuman Rights Council since 2006. After a decade ofde factomoratorium, the time was undoubtedly right to,at the very least, discuss making the moratorium offi-cial or, better still, to move to abolition. South Koreasdecision can probably be explained partly by the pres-sure exerted by its two closest and most influentialneighbours, Japan and China, both of which voted


[ Group 2


against the Resolutions for a universal moratorium47. Italso creates a dilemma for the current government,which is rather conservative but which, should it back-track on the subject, would certainly see its internationalimage suffer, a situation which it would like to avoid48.

[ TOGO Death penalty abolished by law on 23rd June

2009 Last execution in 1978 1 prisoner on death row on 1st January 2009,

whose sentence was commuted to life imprison-ment following the passing of the abolition law

Abstained during the vote on the twoResolutions for a universal moratorium

Provided information for the 2008 UNSGs report

As the last execution in the country dates back to 1978,Togo was considered to be de facto abolitionist. Onlypremeditated murder and high treason were capitaloffences. Komlan Agbviad is the only prisoner to havebeen sentenced to death since 1978. He was sentencedon 5th September 2002.

Abolition began to gain widespread support fromDecember 2008. On 10th December 2008, the Councilof Ministers published a statement at the end of whichit announced that it had just adopted the abolition billpresented by the Justice Minister. It explained that thechoice that the country had made to establish fair jus-tice that limits judicial errors, corrects, educates andguarantees the inherent rights of human beings is nolonger compatible with a penal code that allows thedeath penalty and gives courts an absolute power withirreversible consequences. The abolition of the deathpenalty, which is considered to be a humiliating, degrad-ing and cruel sentence by the community of nationsrespectful of human rights to which we belong, was partof the Togolese collective consciousness for the 30(thirty) years of the moratorium, although the deathpenalty remained in the penal code.49

On 23rd June 2009, the Togolese Parliament unani-mously adopted the law abolishing the death penalty.Togo thus became the fifteenth African nation to abol-ish the death penalty. The country nevertheless hadabstained during the vote on the two UN Resolutions.


[ Group 2


[ JORDAN Death sentences handed down: 14 death sen-

tences in 200850

Last execution in April 200751

45 prisoners on death row on 1st January 2008 Voted against the first Resolution for a morato-

rium in 2007 and signed the Note Verbale;abstained during the vote on the secondResolution for a moratorium in 2008 and has notsigned the Note Verbale.

Did not provide information for the UNSG report,but the Amman Centre for Human RightsStudies contributed in 2008.

The Jordanian penal code was modified in 2001 to addacts of terrorism to the list of crimes for which the deathpenalty could be applied. However, in August 2006 anumber of crimes were removed from the list. A furtherchange to the penal code is currently going through par-liament and should limit the application of capital pun-ishment to crimes of murder and rape of a minor.

Serious crimes are tried by the State Security Court which,according to Amnesty International and Human RightsWatch, does not meet the minimum conditions that guar-antee a fair trial. Although the traditionalDiyya52 systemmakesit possible to avoid certain executions, death sentences con-tinue to be handed down in the country, mostly for acts ofterrorism.Officially forty-one peoplewere executed between2000 and 2006. In 2007, at least eleven death sentenceswere recorded followed by fourteen in 2008.

The geopolitical context is not particularly favourable forabolitionist reform. Located at the heart of a turbulentMiddle East, the country lives in fear of terrorist attacksand wants to retain harsh treatment for cases of sus-pected terrorism.

Nevertheless, a number of small incidents give groundsfor optimism. In September 2005, a fatal judicial errorcaused uproar in the country. On that occasion KingAbdullah gave an interview in the Italian daily newspa-per Corriere della Serra (which was not reported by thenational media) to announce that Jordan could soonbecome the first abolitionist country in the Middle East53.Abolitionist groups in Jordan are increasing in numberand are increasingly active. Associations for the defenseof human rights remain the most active, in particular theAmman Centre for Human Rights Studies (ACHRS),which also strengthened its position as a leading voicein the debate over the death penalty at a regional level.In March 2007, a national coalition against the deathpenalty was formed with the support of Penal ReformInternational. A number of parliamentarians are makingtheir voices heard and adopting a strategy for the grad-ual abolition of capital punishment, including membersof parliament from the Al Akhaa el Watany (NationalFraternity) Party, a group of young reformers, and theparliamentarian Mohamed Arslan who, in August 2006,voted for the amendments to the penal code reducingthe number of crimes subject to the death penalty, andwho is seeking to unite his colleagues in the Assembly.Dr. Mohamed Tarawneh, who is a judge at the AmmanCourt of Appeal, has quashed four death sentences and


[ Group 3

Countries with an Ambiguous Stance

The United States voted against the two UN Resolutions, but did not sign the Note Verbale, unlike Nigeria,which has joined the ranks of the retentionist countries. Yet even within these two giants, positions arenot unanimously held, with movement both toward and away from capital punishment In the USA, theStates ofNew Jersey and New Mexico recently abolished capital punishment, whilst at the same time Ohiois experimenting with a new execution technique; in Nigeria, whilst four states have chosen to broadenthe scope of application of the death penalty, the Governor of the State of Lagos has pardoned three pris-oners sentenced to death and commuted death sentences to life imprisonment for thirty-seven other pris-oners. Despite disapproval from the OSCE, Belarus was still carrying out executions in 2008 but abstainedduring the vote at the United Nations and has not signed the Note Verbale. Jordan, which joined the campof the retentionists in 2007, abstained in 2008. Kazakhstan and Kyrgyzstan, despite recently showing abo-litionist tendencies, did not go so far as to sponsor the Resolutions, but did vote for them. The approachesof these various countries show, to differing degrees, certain doubts on the issue. This document will exam-ine the cases of Jordan, Lebanon, Kazakhstan, Belarus, Nigeria, India and the USA.

takes part in conferences on the subject. Amongst reli-gious leaders, mention should be made of the regularparticipation of Sheikh Dr. Hamdi Mrad in demonstra-tions against the death penalty. He proposes an aware-ness-raising strategy to reduce the risks of confronta-tion with Islamic movements and to persuade them topromote the idea of reining in capital punishment. As ageneral rule, the religious authorities are entirely silenton the issue despite the fact that, as the punishmentarises from religion, their influence is undeniable. Anyconfrontational debate with them would jeopardize thevery idea of abolition. Other influential elements ofJordanian society remain fiercely opposed to abolition,including the Jordanian bar.

In December 2007, Jordan voted against the first UNResolution for a moratorium and signed the NoteVerbale. However, in 2008 it chose to abstain and hasnot since rejoined the ranks of the anti-abolitionists.During its Universal Periodic Review in February 2009,Jordan made it known that it only used capital punish-ment in strictly limited circumstances, that it was work-ing to further reduce the scope of application of thedeath penalty and that no execution had taken placesince April 2007, which equated to a moratorium ofsorts54, but Jordan refused all recommendations that itshould establish a formal moratorium or ratify theSecond Optional Protocol to the ICCPR. The countryhas ratified a number of other international treaties andis a party to the Rome Statute that created theInternational Criminal Court, which commits it to the ideaof no longer applying the death penalty even for crimesconsidered to be amongst the most serious (genocide,war crimes, crimes against humanity). For manyobservers, these reforms indicate a gradual but inex-orable slide towards abolition. A slow, silent slide whichmust rely on discretion if it is to have any success.

[ LEBANON Death sentences handed down: 4 death sen-

tences in November 2009 Executions resumed in 2004 despite a de facto

moratorium since 1998 302 prisoners on death row. Abstained during the vote on the two UN

Resolutions for a universal moratorium Did not provide information for the 2008 UNSGs

report 8

Lebanon is a country which is usually classed as reten-tionist but which, in theory, is ready for abolition. It is pri-marily the political and military context that has blockedall attempts at abolition to date.

Capital punishment is part of the arsenal of sanctionsin the penal code and death sentences can also behanded down by military tribunals. These have been crit-icised by the United Nations Human Rights Committeesince 2001.

Executions were suspended for the first time between1983 and 1994. From 1994 to 1998, fourteen peoplewere executed. In 1998, a second moratorium on exe-cutions came into effect. Although the intense effortsmade by Lebanese abolitionist organisations probablyplayed an important role in this development, the mora-torium was primarily the decision of the prime ministerat the time, Mr. Selim Hoss. He was firmly opposed tocapital punishment and systematically refused to signexecution decrees up until his resignation in 2000.Although President Emile Lahoud stated that he wouldrespect the moratorium, three prisoners were executedfor murder on 19th January 2004 during his term ofoffice (1998 2007).

The abolitionist movement has never wavered in theLebanon. The country can even claim to be the birth-place of the abolitionist movement in the Middle Eastwith the 1983 creation by Dr Walid Slaybi and Dr OgaritYounan of the oldest abolitionist movement in the region,Non violence et droits humains (Non-violence andHuman Rights), renamed Mouvement pour les droitshumains (Movement for Human Rights) in 1988. Onceagain, the efforts of human rights groups and well known


[ Group 3


national figures made possible the repeal of Law 302/94in July 2001. They were also were behind an abolition-ist bill in response to the resumption of executions in2004. In February 2006, a second proposal was pre-sented by six members of parliament who were alsomembers of the Parliamentary Human RightsCommission. This time, it was the war between Israeland Hezbollah during the summer of 2007 that pre-vented the bill from being passed. On June 6th 2007,political instability once again foiled attempts by thesame parliamentary commission to present a third billwhich, to avoid its getting bogged down, proposed asingle article abolishing the death penalty from all textsand replacing it with life imprisonment.The last attempt at abolition dates back to 10th October2008 and the initiative from the Justice Minister IbrahimNajjar. His political party, Lebanese Forces, took a clearstance in favour of abolition. Having become an essen-tial voice on the issue, in March 2009 the Minister organ-ised a meeting with the various political parties repre-sented in parliament to defend his bill and a publicawareness-raising campaign against the death penalty,a first for the Justice Ministry. On this occasion,Hezbollah clearly positioned itself against abolition, whilstothers spoke in favour (including the ProgressiveSocialist Party led by Walid Joumblatt and the FreePatriotic Movement of General Aoun).Although it suffers from a lack of legitimacy in the eyesof the opposition, the creation of an ad hoc internationalcriminal court to try those responsible for the assassina-tion of Prime Minister Rafic Hariri in February 2005strengthened the abolitionist position as the statutes ofthis court exclude the use of capital punishment. In a dec-laration to an Egyptian newspaper, Al Ahram, on 22ndJune 2006, the prime minister, Fouad Seniora announcedthat Lebanon was preparing to abolish the death penaltyin order to align itself with the international court.

Theoretically, Lebanon is ready for abolition but the ques-tion remains mainly dependent on the geopolitical situ-ation. On 21st October 2009, seven members of FatejEl Islam were sentenced to death for attacks against theLebanese army and on 11th November, four other peo-ple received death sentences from a military court forthe crime of collaboration with Israel.

The fact that Lebanon abstained during the votes on theUN Resolutions in December 2007 and 2008 further

illustrates the internal political stalemate that exists withinthe country. However, at the same time, in December2008, representatives of the Ministry of Justice took partin the seminar against the death penalty organised bythe Lebanese civil rights association and the Ministrydeclared itself in favour of a moratorium. Lebanon willundergo Universal Periodic Review during the ninth ses-sion of the Human Rights Council at the end of 2010.

[ KAZAKHSTAN Death penalty abolished for ordinary crimes in

July 2009 Last execution in 200355

Following abolition, death sentences (somethirty handed down in 2008) have been com-muted to penal servitude for life

Voted in favour of the UN Resolutions for a uni-versal moratorium but did not sponsor them


Kazakhstan has begun a process toward abolishing thedeath penalty in stages. In 1997, the list of crimes pun-ishable by the death penalty in the penal code wasrestricted. On 31st December 2003, an official morato-rium on executions was introduced, and was to remainin force until the question of abolition had been resolved.In March 2004, life imprisonment was introduced intothe law as an alternative to the death penalty. In May2007, the Constitution was amended to abolish capitalpunishment for all crimes except acts of terrorism andcrimes committed in wartime. On 10th July 2009,President Nazarbayev promulgated a law amending thepenal code by the same terms as the aforementionedconstitutional amendment.

On 3rd July 2009, some days before this law was prom-ulgated, the OSCE Parliamentary Assembly had adopteda resolution calling on the State parties concerned todeclare an immediate moratorium on executions. The textexpressly called on Kazakhstan to amend its penal codein order to bring it into line with the Constitution.

The promulgation of the law limiting the scope of appli-cation of the death penalty was acclaimed by the inter-


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national community as a significant contribution in favourof the abolition of capital punishment.

This triumphant reaction was not entirely well founded.In reality, the law in question is the equivalent of a de factoabolition, since thus far it has been applied only to mur-ders, and there have been no convictions for crimes com-mitted in wartime or terrorist acts (not in wartime). Yet itis precisely this last exception which would now preventany ratification of the Second Optional Protocol to theICCPR, which provides for only one reservation in timeof war pursuant to a conviction for a most serious crimeof a military nature committed during wartime. The deathsentence for acts of terrorism does not fall under this pro-vision and would therefore prevent any ratification of theProtocol in its current state.

In 2007, a working group on the question of the deathpenalty had been formed, bringing together officials andrepresentatives from civil society, including the very activeKazakhstan International Bureau for Human Rights andRule of Law, and the Bill of Human Rights. It was foundthat the Supreme Court, the Ministry of Defence and theOffice of the Prokuratura (prosecutor) were all in favourof abolishing the death penalty, while the Ministry ofJustice and the Ministry of Foreign Affairs, certain NGOsand the Parliament were against abolition. In meetings,discussion arose regarding the abolition of the deathpenalty in the penal code in order to clear the way forratification of the Second Optional Protocol to theICCPR. But after two years of debate, the bill preparedby the Ministry of Justice merely brought the penal codeinto line with the Constitution as amended in 2007. Thus,the death penalty remained in the penal code, and theworking group on the death penalty was dissolved.

Kazakhstan voted in favour of the UN resolutions butdid not sponsor them. In February 2010, the countryunderwent Universal Periodic Review (UPR). In itsreport56, the government stated that it is pursuing its pol-icy to phase out the death penalty, recalled the consti-tutional amendment of May 2007, and asserted thatpublic opinion on the issue is divided. In 2009,Kazakhstan became a member of the OSCE Troika, andin 2010, it assumed the Chairmanship. At this time, thecountry was chosen as the target for a campaign ledby the World Coalition for ratification of the SecondOptional Protocol to the ICCPR.

In conclusion, as the question of the death penaltystands in Kazakhstan today, abolition applies to ordinarycrimes only since the 2009 decision of the President,whose authority is rarely contested; the issue is no longera topic of debate in Kazakh society. The authorities keepthe abolition project from moving forward and focus onthe image they wish to portray of a state which upholdsthe highest standards of international law, since the cur-rent global and regional context fully justifies the excep-tion of capital punishment for acts of terrorism as intro-duced into the penal code. Given that the presidentialadministration is against total abolition, and that thereis no real political opposition in Kazakhstan, human rightsgroups are fairly pessimistic about the possibility of fullabolition occurring in the near future.

[ BELARUS Number of death sentence handed down:

unknown Last execution in February 2008 - 400 execu-

tions since 1991 according to AmnestyInternational

Abstained from voting on both UN Resolutionsfor a universal moratorium

Provided information for the 2008 UNSGs report

In Belarus, a retentionist country, there are no official dataon the number of death sentences or executions. Thesestatistics are classified as a state secret, in violationof the countrys commitments as an OSCE memberstate. The authorities suggest a figure of one hundredand sixty executions from 1997 to 2008, but accordingto estimates by Amnesty International, since the coun-try gained independence in 1991, no less than four hun-dred people have been executed. The media reportedthe execution of four people in 2008.

International pressure put on this country, which is thelast one to still execute prisoners on the European con-tinent, is tremendous. Amnesty International and theCouncil of Europe information office in Minsk are con-ducting a campaign for abolition of the death penalty inBelarus. The OSCE Parliamentary Assembly and theEuropean Union have repeatedly urged Belarus to abol-


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ish the death penalty. The UN Human Rights Committeehas found that the methods of implementing the deathpenalty constitute inhumane treatment. The families arenot informed of the execution date, neither the remainsnor the personal belongings of the convicted person arereturned to them, and the place of burial is not disclosed.People whose death sentences are confirmed by theSupreme Court are not able to submit a new appealsince the sentences are carried out very quickly. Faulthas often been found with other aspects as well, suchas the lack of independence of the judicial system andthe bar, the use of torture, and the manifest imbalancebetween the full powers of the prosecution and the rightsof the defence.

The community of human rights groups in Belarus is veryactive in promoting the abolition of capital punishment.In January 2009, the Belarusian Human Rights Houselaunched a Human Rights Activists against CapitalPunishment campaign which included the preparationof a petition to the authorities calling for abolition. As of10th March 2009, eleven key public figures had alreadysigned it57.

On 23rd June 2009, the Parliamentary Assembly of theCouncil of Europe informed Belarus that it intended torestore the Belarusian Parliaments special guest status(suspended since 1997 due to the countrys stance onthe death penalty) on the condition that the countryadopt a legal moratorium on executions or even abol-ish the death penalty.

The official reactions to this statement were generally infavour of the idea of a moratorium, considering that thelow number of death sentences handed down in recentyears meant the country was already close to meetingthis requirement58. Viktor Golovanov, Minister of Justice,asserted that the question of introducing a moratoriumwas a matter to be decided by all citizens, referring tothe 1996 referendum on the question which had leadto the provisional reintroduction of capital punishment.Piotr Miklachevitch, President of the Constitutional Court,took a similar stance. In an interview with an Italian news-paper La Stampa in November 2009, PresidentLoukachenko did not give its personal opinion on thesubject, but supported the idea of a referendum todecide the matter. He acknowledged that public opin-ion in Belarus supported capital punishment, but prom-

ised to launch an information campaign. The Presidentbased his position on the Constitution, which stipulatesthat a decision taken by referendum can only bechanged via a new referendum. This position is con-tested by human rights groups who affirm that a mora-torium or abolition fall within the scope of authority ofthe President and Parliament.

At the end of June 2009, the media reported that theministers concerned were considering the need toestablish a working group to draft proposals for a mora-torium on the death penalty.

However, just as this news suggesting progress wasreleased, two men were sentenced to death by theBelarusian courts. Vassily Youzeptchouk, aged 30,received a death sentence from the Brest Regional Courtin June 2009. He filed a petition for judicial review bythe Supreme Court on 2nd October 2009, but it wasdismissed; at the time, the possibility of his imminentexecution was met with outrage in the Council ofEurope59. The defendant submitted an individual com-plaint to the UN Human Rights Committee, which wasreceived on 12 October. He claimed that the guaranteeof a fair trial had not been respected, that his rights tothe liberty and inviolability of his person had been vio-lated, as had the prohibition against torture. On 22ndJuly 2009, the Minsk Regional Court sentenced to deathAndre Jouk for criminal acts and murder. The SupremeCourt examined his petition for judicial review on 27thOctober and confirmed the sentence.

Belarus abstained from voting on the UN Resolutionsfor a universal moratorium. The country was againdenounced in the OSCE resolution dated 3rd July 2009which called on it to take immediate steps by promptlydeclaring a moratorium on all death sentences and exe-cutions with a view to subsequently abolishing the deathpenalty. Belarus will undergo Universal Periodic Reviewduring the eighth session of the Human Rights Councilin May 2010.


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[ NIGERIA Number of death penalty handed down:

unknown Last execution in 2007 736 convicted inmates on death row as of

February 200860

Voted against the Resolutions for a universalmoratorium and signed the statement of disso-ciation

Did not provide information for the UNSG reportin 2008

Nigerian commitment before the UN HumanRights Council (UPR in February 2009) to exer-cise a self-imposed moratorium

In Nigeria, a retentionist country with a long history ofcapital punishment, at least one hundred and thirty-fivepeople were sentenced to death before 1999, the yearin which the military regime left power; at least four hun-dred and forty-four have received death sentences sincethen, including over a hundred in 2005 alone. The lastknown execution took place in 2007. The same year,fifty-six people were sentenced to death, and as of Aprilthe following year, eleven death sentences had alreadybeen recorded, including at least one for someone whowas a minor at the time of the crime.

Nigerias federal government has never officially encour-aged an abolitionist stance, and has clearly opposed theUN Resolutions for a universal moratorium. However, thethirty-six federal states are not unanimous on the issue.While the three states of Imo, Ogun and Oyo have thehighest numbers of death sentences, many governorsno longer sign execution orders and grant pardons onthe countrys Independence Day each year. In August2009, for humanitarian reason, the governor of the stateof Lagos, Babatunde Fashola, granted clemency tothree people who had been sentenced to death andcommuted thirty-seven other death sentences to servi-tude for life. This state has exercised a de facto mora-torium on executions for ten years and is currently in theprocess of revising its body of criminal legislation. Manyorganisations there are pressing for the abolition of cap-ital punishment or at least a de jure moratorium. It is analtogether different situation in twelve states in the northof the country which apply Sharia law, under which the

death penalty has a broader scope of application thanthat determined by the Nigerian penal code. Four ofthese states (Abia, Anambra, Akwa Ibom and Enugu)even recently passed a new law under which capitalpunishment is applicable for kidnapping.

In 2004, the federal government created a national deathpenalty study group which recommended adopting amoratorium on executions while also conducting areview of Nigerian penal legislation. In July 2008, a par-liamentary initiative strove to commute the deathpenalty for armed robbery to penal servitude for life61.But from the start of the debate, members of parliamentfirmly opposed the bill.

Generally speaking, Nigerian civil society is dynamic; itregularly initiates abolitionist actions and has assumedthe role of informing the public and procuring reliabledata on the issue in the face of the governments fail-ings and obstruction in this area. Recently, the LegalDefence and Assistance Project (LEDAP) held a semi-nar in Lagos which had considerable impact in the NGO,legal, media and police sectors. What emerged was theunderstanding that most people still viewed capital pun-ishment as an effective form of dissuasion, and that ifthe abolition movement were to gain widespread sup-port beyond elite circles, thus placing real pressure onrepresentatives to take action, a vast awareness cam-paign was needed62.

Nigeria is hardly exemplary in upholding the minimumstandards for the treatment of prisoners facing the deathpenalty. In 2007, the Presidential Commission on theReform of the Administration of Justice63 expressed con-cern about the deplorable living conditions in whichdeath row inmates were held.

The country, it would seem, remains staunchly posi-tioned on the question of abolition. Aside fromIndependence Day pardons, few or no pardons or com-mutations of sentence are granted, nor does any leg-islative trend to restrict the application of capital pun-ishment appear to be on the agenda. Nigeria has firmlyopposed both UN Resolutions for a universal morato-rium and twice signed the Note Verbale of dissociation.

Nevertheless, when questioned during the UniversalPeriodic Review in February 2009, the representatives


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of Nigeria denied allegations of secret executions. Theyclaimed that although it had voted against theResolutions, Nigeria had decided to exercise a self-imposed de facto moratorium64 and established anational committee to examine the question of the deathpenalty, the conclusions of which would determine thegovernments position on the issue. In 2008, during theUniversal Periodic Review of Argentina, Nigeria even sawfit to recommend that Argentina ratify the SecondOptional Protocol to the ICCPR for the abolition of thedeath penalty, which Argentina had already signed. Evenmore recently, Nigeria undertook diplomatic efforts withLibya to plead for suspension of the execution of sometwenty Nigerians sentenced to death for drug traffick-ing an offence which is not punishable by the deathpenalty in Nigeria65.

[ INDE Death penalty handed down in 201066

Date of last execution: 2004 Voted against the UN Resolutions for a universal

moratorium but did not sign the Note Verbale ofdissociation


The death penalty is available under the penal code anddeath sentences continue to be handed down regularlyin spite of the Supreme Court stipulation, in the BachanSingh vs State of Punjab ruling, that this radical sentenceshould only be issued in the rarest-of-rare cases.

On 14th August 2004, an execution took place, bring-ing a nine-year period of de factomoratorium to a close.Dhananjoy Chatterjee, a thirty-nine-year-old man con-victed of the rape and murder of a fourteen-year-old girlin 1990 was hanged at the Alipora prison in Calcutta,where he had been held for thirteen years. The last exe-cutions on record dated back to 1995, with the hang-ing of five people.

Since 2004, no further executions have been carried out,but death sentences are still frequently handed down.They are sometimes reviewed or annulled throughappeals and petitions, which suggests failings in the

investigation procedures, and indicates a broad inter-pretation by the courts of the rarest-of-rare notionadvocated by the Supreme Court67.

As a general rule, the authorities take no initiative torestrict the application of capital punishment or simplyto objectively inform the public about the issue. Indeed,in 1999, the government even brought forward a pro-posal to extend the application of the death penalty forthe prevention of rape, which met with a barrage of crit-icism. Even now, support for capital punishment in casesof child rape is regularly voiced68.

According to statistics from the National Crime RecordsBureau, there were at least eleven hundred and fortypeople on death row in 200369. In 2008, more than onehundred and forty people received death sentences,including thirty-six in the highest-ranking state o

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