A principios de diciembre de 2009 participé como moderador de una mesa sobre “Estrategias contra la pena capital en el horizonte de 2015” en el contexto del Coloquio Internacional por la Abolición Universal de la Pena Capital, que el Centro de Estudios Políticos y Constitucionales organizó junto con el Instituto de Derecho Penal Europeo e Internacional de la Universidad de Castilla-La Mancha. Fue una discusión interesante, especialmente por la distinta aproximación de los profesores William Schabas y Peter Hodgkinson, y también por las preguntas y opiniones de los asistentes, entre los que se encontraba, por ejemplo, el Profesor Nigel Rodley. Mi colega la Dra. Jessica Almqvist participó como relatora y ha escrito un resumen estupendo,  algunos de cuyos párrafos, con su permiso, quiero compartir con los lectores de aquiescencia. El texto está en inglés, pero si hubiere una traducción pronta, trataré de publicarla también.

Strategies to End or Abolish the Death Penalty by 2015

Rapporteur: Jessica Almqvist

Two radically different strategies of how to end or abolish the death penalty (DP) were discussed. The main contributors to the discussion were William Schabas, Peter Hodgkinson and Victor Moreno (speakers). Carlos Espósito presided and moderated the session.

In what follows is a summary of what the different strategies amount to and how they differ from one another.

“Keep on doing what we are doing”

The first strategy that was discussed is more ‘optimistic’ and dominates in the public international realm. It emphasizes the existence of an international trend to abolish or end the DP. For example, if Ireland were now to consider the possibility of reintroducing the death penalty, which it abolished by way of a constitutional referendum in the 50s, it would be expelled from the European Union and the Council of Europe. It would be considered as an outcast.  Indeed, Ireland, together with many other countries in Europe and beyond, does not revisit the old arguments about the death penalty anymore. In fact, few, if any, countries that have once abolished the death penalty reintroduce it. The Philippines is the exception that proves the rule.

In general, there is considerable statistical evidence demonstrating the existence of an international trend towards the universal abolition of the DP. The “war on terror” did not affect this trend. With the exception of Belarus, Europe is a “DP free zone”. Leaving Egypt, Libya, Sudan and Somalia aside, Africa is next to a “DP free zone”, too. Last year, there was only one reported execution in the whole of Africa. Furthermore, in the Americas, with the exception of the US, only one execution has taken place in the last five years. In the Iberoamerican region, Guatemala and Cuba are the only countries that keep the DP. The persistence of the death penalty is mainly an Asian phenomenon.

The international trend can be assessed in different ways. It is possible to distinguish between countries that are (1) pure abolitionists (100 countries); (2) abolitionists with respect to ‘ordinary crimes’ (less than ten now); and (3) de facto abolitionists (46 countries, including countries from the Maghreb region such as Morocco and Algeria).  In fact, the number of countries that falls within the third category increases every year. However, we also observe a general decline in the use of the death penalty among countries which formally allow it (such as, Iran and Saudi Arabia). And, countries, such as Egypt and Singapore, do not practice what they preach.

This international trend indicates that there is no need to revise the strategy currently used, but rather “keep on doing what we are already doing”. In short, it consists of letting the increasing number of ratification of relevant international treaties, and the increasing number of countries that have ended or abolish the DP, to speak for themselves.

The need for a holistic strategy

The second strategy is more ‘pessimistic’. It insists on the need for caution towards the affirmation that we are making real progress. Those who are supporting this position stress that we are still far from having succeeded in achieving the objective of ending or abolishing the DP in all countries.

Their strategy stress the need engage in a discussion with countries that still keep the DP. In particular, it is essential that we take seriously the fact that there are still several countries which are defending the DP although they do so for very different reasons.  However, their particular reasons must be taken into account and influence our selection of arguments when engaging in a discussion with them.

For example, some countries in the Caribbean, such as Trinidad & Tobago and Jamaica, seem to keep the DP only to manifest their independence and control in relation to their colonial masters. Other countries, in contrast, seek to invoke religious or moral arguments. For example, the DP is often thought of as helping the families of the crime victims.  We could show that this assumption is misguided. Contrary to what many believe, the DP does not help families of homicide victims to get closure. In this context, it may be useful to discuss in more detail the availability of different kinds of restoration models. Few countries that practice the DP have considered other methods of helping these families, such as, for example, making them part of the judicial process.

When countries do decide to abolish the DP, ‘new’ issues and concerns arise for them. A sound strategy cannot ignore, but must be attentive to these realities. Each of these realities requires international engagement. For example, in this context, is important not to ignore the uncomfortable question as to whether the alternative of life-in-prison without parole is actually a more humane form of punishment. Besides, in poor countries, there is a great risk of death while in prison because of the absence of food or hygiene. From this standpoint, a strategy of abolishing the DP must necessarily include a consideration of alternative forms of punishment for countries that are considering abolishing the DP.

Additionally, we cannot simply assume that the abolition of the DP means a more general improvement of the legal infrastructures and services of a country. In order to make progress, it is essential that also these infrastructures and services improve. A quest for a more general improvement of the conditions of offenders is also true for those countries which continue to use the DP. If we are unable to convince these countries about the need to end or abolish the DP we must still work with them in order to improve the conditions for those who are on death-row as well as their families (for example, by encouraging legal interventions and psychiatric assistance).