July 13
USA:
Going It Alone----The rest of the civilized world has abolished the death
penalty. Will the United States follow suit?
As you have read in the preceding pages, a large majority of countries in
the world have abolished the death penalty. In order to join the European
Union, for example, countries have to become parties to the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
and specifically to Protocol 6, which explicitly abolishes the death
penalty. Thus, capital punishment has been eradicated in all of western
Europe and most of eastern and central Europe. Most of the countries of
the Americas have also abolished the death penalty. Indeed, it was
repealed in South Africa after the end of apartheid, where it clearly had
been one of the tools of repression used by whites against the black
majority. (Countries still using the death penalty include China, Japan,
and many Muslim nations.)
The United States, therefore, finds itself at odds on this issue with its
European counterparts, with its neighbors in the Americas, and with nearly
all democracies -- a great many of the countries it has traditionally
allied itself with on addressing human-rights problems globally. This
failure to follow the trend toward abolition has begun to affect America's
influence in the international arena.
Nowhere is this clearer than with respect to the execution of persons who
committed their crimes when they were under the age of 18. The United
States is arguably the sole violator of the international prohibition of
such executions. Numerous treaties and pronouncements by international
bodies denounce the practice. Of the 6 countries besides the United States
where juveniles have been executed since 1990 -- Congo, Iran, Nigeria,
Pakistan, Saudi Arabia, and Yemen -- the laws recently have been changed
or the governments have denied that executions continue to take place.
Amnesty International reported that a juvenile offender was executed in
China in 2003, but allegedly there had been problems verifying his age.
China raised its death-penalty eligibility age to 18 in 1997. And in Iran,
the parliament passed a bill in December of 2003 removing the provisions
for executions of juveniles. If Iran's Guardian Council ratifies the
measure, as many predict, the United States will achieve a highly dubious
distinction as the world's only country to openly execute juvenile
offenders.
That fact continues to embarrass the United States at the international
level. It was one of half a dozen countries specifically named as a
violator in a resolution passed in 1999 by the United Nations
Sub-Commission on Promotion and Protection of Human Rights. The United
States was singled out as the country that accounted for 10 of the 19
juvenile executions occurring in the preceding 10 years. It may be the
only time that this nation was mentioned in any human-rights resolution by
a body of the United Nations. Perhaps still more embarrassing was an
attempt last year by the United States to delete language condemning the
execution of juvenile offenders from a resolution on the Rights of the
Child supported by the UN Commission on Human Rights. The effort to strip
the language failed by a vote of 51-to-1 (with the United States the lone
dissenter), and prompted sharp criticism from several commission members,
among them close U.S. allies in Europe and Latin America.
Other events suggest that the United States will increasingly be called to
task for its own failure to implement human-rights norms, especially in
relation to the death penalty. In 2001, the United States was voted off
the Commission on Human Rights for the first time in that body's 54-year
history. That action may be blamed on many factors, but America's record
on the death penalty was at least one point of contention among the
nations that failed to support America's renewal.
Similarly, our nation's embrace of the death penalty has jeopardized our
status at the Council of Europe, a political organization representing 45
nations across the European continent. In 2001, the council's
parliamentary assembly passed a resolution requiring Japan and the United
States to impose an immediate moratorium on executions and to take steps
to abolish the death penalty in order to maintain their nonvoting observer
status. In 2003, the Inter-American Commission on Human Rights, the main
human-rights body of the Organization of American States, rejected the
sole U.S. candidate for membership, leaving the United States without a
seat on the seven-member commission for the first time since it was
created in 1959. That vote, too, has been blamed on a number of factors,
but it surely hasn't helped that the United States had several commission
decisions issued against it with respect to the juvenile death penalty,
and has refused to take any steps to implement them.
International adjudicatory bodies are increasingly rendering decisions
against the United States with regard to other violations of international
treaties and standards related to the death penalty. Most recently, the
International Court of Justice (ICJ) has issued opinions that the United
States is bound by the provisions of the Vienna Convention on Consular
Relations in cases brought against the United States by several of its
allies. That treaty provides that persons arrested in a foreign country
are supposed to be notified about their right to contact their consulate
for assistance. In the wake of repeated violations of the treaty by a
number of U.S. states, Paraguay, Germany, and Mexico brought claims
against the United States on behalf of their nationals on death row here.
The order by the ICJ in the case brought by Mexico affects more than 50
Mexican citizens, 31 of whom are on California's death row at San Quentin.
Prior to the ICJ case, the Inter-American Court on Human Rights had issued
an advisory opinion regarding the application of the Vienna Convention to
death-penalty cases. Interestingly, the first court to address the ICJ
opinion regarding the condemned Mexican nationals was the Oklahoma Court
of Criminal Appeals, that state's highest court for criminal matters.
Basing its ruling on the ICJ opinion, the appeals court in May ordered a
new hearing for Osbaldo Torres, a Mexican convicted of the 1993 murder of
an Oklahoma couple during a burglary of their home. Within a few hours of
the ruling, the governor commuted Torres' sentence to life without parole,
referring to the United States' obligations under the Vienna Convention
and the fact that the State Department had urged him to consider that
commitment. As this case demonstrates, the federal government does -- and
must -- play a role in urging the states to comply with U.S. treaty
obligations.
Individuals charged with capital crimes have also been using international
forums to fight their extraditions to the United States. In one case, a
young German national named Jens Soering was accused of murdering his
girlfriend's parents in Virginia. After he was arrested in England, the
U.S. government requested his extradition to stand trial for the killings,
for which he faced the possibility of the death penalty. The European
Court of Human Rights ruled that prolonged detention on death row violates
the prohibition against inhuman and degrading treatment, and that the
United Kingdom would violate the European Convention if it extradited
Soering to Virginia because he would suffer from what it termed the
"death-row phenomenon." Eventually, Soering was extradited -- but only
after Virginia agreed not to seek capital punishment in his case.
To date, the U.S. Supreme Court has refused to grant certiorari in other
cases that have invoked the death-row phenomenon -- shorthand for the
mental anguish that persons awaiting execution suffer from -- despite the
various international bodies that have ruled it to be a human-rights
violation. Perhaps it is cause for some optimism, at least, that Justices
John Paul Stevens and Stephen Breyer, in the more recent case of Texas
death-row inmate Clarence Lackey, wrote that state and federal courts
should study whether long execution delays could constitute "cruel and
unusual punishment" in violation of the Eighth Amendment.
In another extradition case, Charles Chitat Ng, a former U.S. Marine
wanted for a string of grisly murders in California, fought his
extradition from Canada on the grounds that he faced execution by
asphyxiation -- a punishment, he argued, that would violate his rights
under the International Covenant on Civil and Political Rights (ICCPR). He
filed a complaint against Canada before the Human Rights Committee, the
body that oversees enforcement of the ICCPR. The committee found that
execution by gas asphyxiation would indeed result in prolonged suffering,
constituting cruel and inhuman treatment in violation of the ICCPR, and
that Canada had violated the treaty by permitting Ng's extradition. (The
9th U.S. Circuit Court of Appeals subsequently upheld a lower court's
ruling that execution by gas asphyxiation violates the Eighth Amendment.)
Since that decision, Canada has developed its own jurisprudence on this
topic. Along with the European countries, it now also refuses to extradite
persons who may be subject to the death penalty in the United States
following an opinion by its supreme court based on its own constitutional
guarantees of the right to life and liberty.
As these examples illustrate, other countries seem increasingly willing to
find ways to pressure the United States with respect to its continued use
of the death penalty. Moreover, America's efforts to combat terrorism will
be made more difficult because friendly countries will not extradite
suspects if they face the death penalty. Together, they point to an
inescapable conclusion: If the United States wants to regain its role as
promoter and protector of human rights around the world, it first needs to
address its own violations of internationally recognized standards.
(source: The American Prospect, Inc. Preferred Citation: Connie de la
Vega, "Going It Alone", The American Prospect, Inside the Crack-Up, July
2004)
