European Union foreign policy tail-winds favored Portugal in 2007. And, sensing that block support, Portugal strode in with a draft ‘global death penalty moratorium’ proposal to the United Nations.
Colombia peeked at that draft, saw in it a joint sotto voce European policy, and quickly clambered up as the draft’s first co-sponsor. And so, the 62nd United Nations General Assembly was set for a clash of civilizations - as Singapore, Barbados, Egypt, Jamaica, United States of America and China all opposed Portugal’s draft.
Nigeria opposed it too, and in dissenting, “The representative of Nigeria said the death penalty is still on the country’s statute books for national security reasons and as a deterrent against serious crimes. Inferences contained in the draft could not be accepted. Capital punishment in Nigeria is meted out for the most serious offenses where human life had been taken or the security of the State threatened”.
According to the U.N Reporters, the Nigerian diplomat at the U.N further said “There had been no cases of capital punishment in recent years in Nigeria. In essence, a moratorium on the death penalty should not be imposed by any group of States. Any moratorium should be on the basis of negotiation and agreement. The (Portugal’s) draft resolution fell short of that. Nigeria found the degree of division on the issue disturbing. In view of the draft resolution’s controversial nature and the attempts to impose it on Member States of United Nations, the Nigerian delegation would vote against (Portugal's) draft.”
Un-usually frank in its argument, Nigeria however tabled no amendments to back up its muted fury, but Egypt, Singapore, Barbados, Antigua and Barbuda and Botswana followed up their own dissent by tabling 14 amendments to Portugal's draft resolution - mainly to maintain sovereignty for each country’s parliament.
“We anticipate a divisive, unpleasant and unnecessary fight, because a group of countries led by the European Union decided to table this resolution knowing full well that not only would it not enjoy consensus, but would polarize this United Nations,” Singapore’s chief diplomat dryly said. "Nothing in the United Nations Charter speaks of abolishing the death penalty," he added.
But Portugal replied that “This is not just a European Union proposal but a cross-regional effort,” suggesting that the European Union - including Portugal which spoke for it - had consulted across all continents before tabling ‘the death-penalty ban resolution,’ thus making the sub-silentio argument that a new international customary law has arisen.
But several countries demurred and remained skeptical because the United Nations had twice before thrown out similar draft resolutions on global death penalty ban - once in 1994 by an overwhelming majority votes - to rebut the Portuguese suggestion of a new international customary law.
“The focus of the draft is on a moratorium. Abolition would be the result of a step-by-step process,” the Philippines top diplomat interjected, to seek tactical exit from the weakened position of Portugal, but the Organisation of Islamic Countries (OIC) only further protested it.
“For a majority of member States of the Organization of Islamic States, this issue is related to criminal justice system - with an obligation on the Islamic countries to carry out the death penalty subject to competent courts after exhausting all legal remedies. The OIC recognizes that the issue of establishing a moratorium on death penalty lacks international consensus, especially in view of existing international human rights instruments.”
And as this jousting continued between opposing countries for three (3) days - and with the implied ban on death penalty in the original draft submitted by Portugal fastly losing traction - the best hope at the time of having any form of global action restraining death penalty lay solely with the block votes of the European Union which stridently led the debates against all the 14 amendments the dissenting countries submitted.
As the debates then raged on, the observer representative of the Holy See - who is officially accredited to the United Nations as a personal representative of the Pope in The Vatican - interposed a nuanced argument. According to him, if the central point of this ban or moratorium on death penalty is the defence of a right of life, then the right itself must be made objective and applicable to all lives - not just to the lives of criminals.
“Unequal interpretation of the parameters of the right to life reduces that right to a political tool. Whereas, such a right is applicable to all stages of life and all countries' delegations should therefore adopt that consistent view,” the Holy See representative philosophically argued.
Cleverly phrased as an implicit attack on abortion rights upheld by the European Union itself, the Holy See's argument predicated the inference that a moratorium on death penalty – were it to be upheld by the United Nations – would mean abortion too would have to be banned worldwide, as integral to the same principle of right to life.
Faced with that horn-of-a-dilemma proposition, the death penalty proposers smartly buckled. They changed tack to a textual exegesis of the draft, to avoid a spat with the Holy See’s Representative, by more or less side-stepping the broader meaning of "RIGHT TO LIFE".
According to the United Nations Report: “The U.N Committee Chairman at this point invited the Committee to take action on amendment A/C.3/62/L.81 - submitted by Barbados - which proposed replacing the language of operative paragraph 2 (d) of “L.29” with, “Restrict the crimes for which the death penalty may be imposed to only the most serious ones in accordance with the law in force at the time of the commission of the offence.”
But “the representative of France, taking the floor as a sponsor and co-author of “L.29”, said that text represented a compromise - as the original text that preceded it had aimed at abolishing the death penalty. France, therefore, regarded the amendment proposed by Barbados as hostile and undermining the meaning of “L.29”.
Backed by the Philippines, the argued intent of Barbados to retain death penalty for homicide and such-like, was summarily shot down by majority votes.
And so, after much toing and froing for three (3) days, with some middle-eastern Arabic-speaking countries at a point asking that the two words in English; “can” and “could” be impossibly given their exact literal Arabic interpretations, “the United Nations General Assembly adopted resolution 62/149 on 18 December 2007, calling for a worldwide moratorium on executions".
The resolution was adopted by 104 UN member states in favour, 54 countries against and 29 abstentions”, and as passed, it states in its operative parts that the United Nations:
Expresses its deep concern about the continued application of the death penalty;
Calls upon all States that still maintain the death penalty to:
(a) Respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;
(b) Provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing the protection of the rights of those facing the death penalty;
(c) Progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed;
(d) Establish a moratorium on executions with a view to abolishing the death penalty;
Calls upon States which have abolished the death penalty not to reintroduce it;
Requests the Secretary-General to report to the General Assembly at its sixty third session on the implementation of the present resolution;
Decides to continue consideration of the matter at its sixty-third session under the same agenda item.
But according to a subsequent United Nations Press statement, “The representative of Singapore congratulated the co-sponsors of the resolution on their “pyrrhic victory”. Till today, Singapore has retained the death penalty on its own statute books, just as Nigeria and the United States of America.
In later years, the United Nations General Assembly passed two affirming new resolutions in December 2008 and in December 2010, both ratifying this non-binding moratorium resolution, but with the United States of America still voting against all. “On each occasion, the vote supporting the call for a moratorium gathered strength: rising from 104 votes to 106 and then 109, while those states voting negatively fell from 54 to 46 to 41," said a United Nations Commissioner.
“The representative of the United States said his country recognized that the supporters of the resolution had “principled positions”, but that international law did not prohibit capital punishment. The International Covenant on Civil and Political Rights specifically recognized the right of countries to carry out capital punishment for certain crimes. He therefore urged all countries that applied the death penalty to do so in accordance with their human rights obligations, and not in a summary or extra-legal fashion.”
For the European Union, the moratorium on death penalty in the bag was wind to its foreign policy sails, especially that the resolution was twice later re-affirmed by the United Nations - and with a further extension of the moratorium by the United Nations as recently as last year.
This European Union's major diplomatic victory, despite strong opposition, was resounding success by any metric. And since securing it, the European Union has felt able to ask Japan and the United States last November to place an outright ban on death penalty in their own countries. “Death penalty is contrary to the fundamental values for which our countries (in Europe) stand," European Union’s Commission for foreign relations had told Japan and the United States.
But neither country has acceded to the European Union’s demand for a ban, perhaps because both Japan and the United States of America voted against the U.N moratorium in the year 2007, or, because the UN resolution merely advised a moratorium as a temporary cessation on death penalty, rather than a ban.
All told, the United Nations’ 2007 resolution is itself unclear on whether death penalty should abate for terrorists who kill a Prime Minister or a country's President. For lacking clarity on treason, the moratorium would need further convincing test at a time of trouble.
The argument raised by the Republic of Ireland for passing a death penalty moratorium is that there’s been a reduction of crimes in countries which abolished death penalty before 2007, but the Singaporean diplomat immediately faulted that statistic, by countering that over a hundred countries actually had death penalty for treason on their statute books up till the year 2007 when the United Nations debate started.
Ireland’s argument was of course a recast of the ‘deterrence theory of punishment’, although raised differently by way of laxer punishment. But the Irish diplomat at the United Nations still did not demonstrate the intrinsic connection between abolishing death penalty and reduced crimes - but merely asserted it, in violation of the logic that correlation is not causation.
If actually deterrence be the point, as the Irish diplomat averred, though he did not point out why lesser jail terms for no more than three days - for mass murder -should not also cause a reduction of genocide, nothing was argued for it other than a disputable statistic. Or did the Irish diplomat point out which crime was ever reduced simply by deterrence alone.
But even regarding that, deterrence is not the jurisprudential purpose of death penalty in the first place. Rather, the basis of it is the irreparable loss of life, given that re-incarnation is conclusively denied in law. One clear principle of law agreed by everyone is that equality is equity. In other words, that fairness means equal measure. Thus, it has been so all through history that the only conceivable equal measure for irreparable loss of life is the imposition of reciprocal irreparable loss, as punishment, of a murderer’s life.
To move away from that well-established jurisprudence, the proponents of a ban death penalty would now need fresh and much deeper thinking.
For now, one other missing thought as yet is how else to invoke equity for the murdered victim.
Merely setting store on the murderer’s sanctity of life is circular argument. For anyone who un-lawfully takes another’s life defies the community’s prohibitive law, and by that atrocious breach of humanity’s membership, he announces himself ready to quit humanity.
With such readiness to quit bloodily announced by the act of murder – almost as a written will meant to take effect at once – the law’s only purpose is simply to fulfil the murdering testator’s wishes, by granting his or her request to quit humanity forthwith.
……………..Seyi Olu Awofeso is a Legal Practitioner in Abuja