Human rights violations, the death penalty, and flouting international law

Mai Sato grew up in Japan, where the death penalty has mainly been applied for murder, and where it’s long signified “justice” for the victims’ families.

She never doubted the existence or the necessity of the death penalty as a form of criminal punishment, but having spent the past two decades in countries without the death penalty, her sensibilities about what constitutes justice have changed, as well as her understanding of the social and political functions that the death penalty serves.

Now, she takes the view – together with more than half of the countries in the world – that the death penalty is unnecessary for all crimes, including intentional killing.

Today, she’s the inaugural director of Eleos Justice – a research unit on the death penalty in Asia that’s based at Monash University. She’s also the Deputy Director of CrimeInfo, an anti-death penalty NGO based in Japan.

In this edited extract of a speech she delivered at the United Nations’ 52nd session of the Human Rights Council on 28 February, she explored why and how many countries that have not yet abolished the death penalty flout their international obligation to limit it to only the most serious crimes.

First, of the 79 countries that retain the death penalty under law, only two – Jamaica, and Saint Vincent and the Grenadines –  follow the international standard of restricting the death penalty to the most serious crimes defined as intentional killing.

In the remaining 77 countries, the death penalty is permitted for an array of offences, from victimless crimes to terrorism, sexual offences, and economic crimes.

In these countries, these laws may be old laws that were never repealed, or laws that were intended to serve a symbolic function to denounce a wrong. Whatever the reason, the fact remains that state-sanctioned killing is kept as a form of punishment for offences that fail to meet the “most serious” criterion.

Second, some of these capital offences should not be criminalised at all.

For example, the criminalisation of adultery, same-sex sexual acts, and blasphemy or apostasy – let alone the imposition of the death penalty for these acts – are not only contrary to the right to life, but are contrary to women’s rights, right to equality before the law without discrimination, and freedom of religion.

Despite this, adultery, so-called religious offences, and same-sex sexual acts are punishable by death in 11 countries. While known numbers of executions for these offences are small, our research has found that in at least two countries, executions have been carried out for same sex-sexual acts, and for religious offences.

However, focusing on the number of executions misses the point about the operationalisation of the death penalty.

In countries where these offences remain a capital offence, either through codified laws or prescribed by unwritten Shari’a law, the state is declaring those who engage in consensual sexual relations outside marriage, engage in same-sex sexual acts, or leave their religion are deserving of death.

These declarations also have a trickle-down effect within the community, legitimising vigilantism and honour killings.

Third, in at least in 38 countries, rape is a capital offence. Several countries have amended their penal codes to introduce capital rape offences in response to high-profile cases of rape.

These laws have been justified as “protecting” women, but the reverse is true – capital rape laws use the language of women’s rights to violate the right to life.

Fourth, executions are regularly carried out for drug-related offences, which clearly fail to meet the “most serious” criterion. Drug offences can be punishable by death in 35 countries, and between 2010 and 2020, more than 4000 people, at least, have been executed for these offences.

Instead of disrupting drug cartels, capital drug laws in practice operate to punish “drug mules”, who are typically recruited from marginalised groups with intersecting vulnerabilities, and easily replaced.

Fifth, and finally, retentionist countries may cite religion, popular public support, or deterrence as barriers for moving away from the death penalty.

Judicial executions are only one of the functions of the death penalty. The death penalty is a symbol of a state’s lethal control over its citizens.

Various UN platforms allow us to imagine a different kind of justice system to our own. For example, in Tunisia, Morocco and the United Arab Emirates, Islam is the state religion, but it doesn’t prescribe the death penalty for religious offences, showing that the Qur’an embraces religious freedom.

As for deterrence, I won’t go into detail concerning the deterrent effect of the death penalty as this topic. I will simply state that where retentionist governments quote overwhelming public belief in the deterrent effect of the death penalty, my response is that whether the death penalty deters offending compared to other punishments is an empirical question.

It doesn’t depend on whether the public believes in its deterrent effect. More generally on public opinion, many surveys that claim strong public support for the death penalty fail to explore the considerable public acceptance of, and tolerance for, abolition, if governments were to take leadership on this matter.

The discussion on the “most serious crimes” standard is not limited to countries that retain the death penalty for drug offences – though this deserves attention precisely because it’s an area where executions are most actively carried out.

Judicial executions are only one of the functions of the death penalty. The death penalty is a symbol of a state’s lethal control over its citizens.

By retaining the death penalty under law, states declare that some offenders must be eliminated, and acknowledge that killing human beings forms part of their justice system.

All retentionist states – from those whose capital laws have not been in use for a long time, to those that execute – can take active steps to further restrict the death penalty in their jurisdictions, taking seriously the “most serious crimes” standard.