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Abolishing the death penalty in the Asia Pacific

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In Brief

On 3 February 2017, a small ceremony was held to remember the 50th anniversary of the execution of Ronald Ryan at Pentridge jail in Melbourne, Australia. Ryan’s execution for the murder of a prison guard proved to be the tipping point for Australia.

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It sparked a movement for abolition of the death penalty which culminated in 1985 when capital punishment was abolished.

This act of domestic law reform was soon followed by action on the international stage in 1990 when Australia ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), creating an international law obligation to abolish the death penalty.

Australia has since become a strong international voice against the death penalty, partly forged out of the execution of its citizens in Malaysia, Singapore and most recently Indonesia, where Andrew Chan and Myuran Sukumaran were executed for drug trafficking in 2015. Australia’s international advocacy for abolition of the death penalty was further advanced in 2016 when the parliamentary report ‘A World Without the Death Penalty’ was released, which made 13 recommendations as to how Australia could improve this advocacy. These recommendations are under consideration as part of Australia’s Foreign Policy White Paper due out in mid-2017.

But Australia’s efforts to abolish the death penalty face significant hurdles in the Asia Pacific, which were highlighted on 7 February when Australian Antonio Bagnato was sentenced to death by a Thai court following his conviction for murder. 11 of the 25 states that engaged in capital punishment in 2015 are located in the region, including the country with the largest number of executions per year — China. There are also worrying signs that some states are considering reinstating the death penalty. In the Philippines, the Death Penalty Act allowing for the reintroduction of the death penalty is currently before the Congress, while Brunei and Papua New Guinea have actively considered removing their de facto death penalty moratoria in recent years.

Nevertheless, Australia is well placed to oppose the death penalty among Asia Pacific nations. Such an approach should focus on advocacy for either a de jure or de facto moratorium on capital punishment. Australia already has strong bilateral relations with pro-death penalty retention states such as Indonesia, Japan, Malaysia and Singapore. Likewise, South Korea — which is abolitionist in practice — is a state with which Australia has strong ties and may be persuaded to become abolitionist for all crimes.

Australia is also in a good position to commence a campaign promoting the adoption of the Second Optional Protocol to the ICCPR, which has a total of 81 signatory states and is endorsed regionally by New Zealand, the Philippines and Timor-Leste. Article 6 of the ICCPR contains certain provisions that limit the application of the death penalty, however, varying positions are taken on the interpretation of Article 6, including whether drug offences are the ‘most serious crimes’ to which the death penalty can be applied.

In contrast, the Second Optional Protocol unambiguously requires states parties to abolish the death penalty in their national legal systems. Accordingly, a state which adopts the Second Optional Protocol indicates to the international community and its own citizens that the death penalty will no longer apply. This is a matter the Philippines will need to reflect upon in their current debate over the death penalty.

There is considerable potential for Australia to begin a regional campaign to adopt the Second Optional Protocol. Based on Amnesty International’s 2016 report on the status of the death penalty worldwide, there are 12 Asia-Pacific states that are abolitionist for all crimes but have yet to adopt the Second Optional Protocol, three states that are abolitionist in practice and nine pro-retention states. Such a campaign could initially seek to focus on those abolitionist states with whom Australia has close bilateral relationships and then focus on pro-retention states in the region.

Australia already has experience with these types of diplomatic campaigns, having promoted regional support for the Rome Statute of the International Criminal Court in the 2000s. This is even an area where Australia could find common ground with Timor-Leste. A joint Australia–Timor Leste campaign promoting the adoption of the Second Optional Protocol with Nobel Prize winner Jose Ramos Horta taking an active role would carry significant moral weight.

Donald R Rothwell is a Professor of International Law at the ANU College of Law, The Australian National University.

One response to “Abolishing the death penalty in the Asia Pacific”

  1. Australia’s record is in fact not a consistent one. Prime Minister Howard, for example, supported the death penalty for terrorists, most particularly in the case of the Bali bombers. For a typical Howard statement on the issue, see the following report— http://www.abc.net.au/news/2007-10-10/howard-stands-by-death-penalty-for-terrorists/694212. Foreign Minister Downer seconded his prime minister in this matter.

    Howard said that it would be ‘very, very, very bad’ if the three bombers, Mukhlas, Imam Samudra and Amrozi, were spared the death penalty. They were duly shot in November 2008. This took place at roughly the same location where Australia’s two convicted drug traffickers met their deaths seven years later.

    Indonesians responding to the Abbott Government’s actions aimed at deterring Chan’s and Sukumaran’s execution might well have forgotten the Howard Government’s earlier stand. I have discovered no Indonesian reference to it

    But let’s not pretend that we were indiscriminately opposed to capital punishment. For that matter, do we now oppose the execution of terrorists? There are still some Indonesian terrorists on death row who attacked Australian targets. Will we protest if Rois, the Australian Embassy bomber, faces a firing squad?

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