UN High Level Panel on the Death Penalty and Deterrence

By Grace O'Connor, on25 February 2021

The UN Biennial High Level Panel on the Death penalty focused on the deterrent effect capital punishment has on crime. Representatives from member states, NGOs and NHRIs made statements to the high level panel discussing the deterrent theory.

On the 23 February, the Human Rights Council held its Biennial High-Level Panel discussion on the question of the death penalty, focusing on the human rights violations associated with the use of the death penalty, in particular with respect to the theory that the use of the death penalty has a deterrent effect on crime rate. The Advocates for Human Rights, the FIACAT and other member organisations of the World Coalition Against the Death Penalty took the opportunity to deliver a joint statement on the topic. The statement spoke out against the deterrence theory, citing extensive research that finds little proof that the death penalty deters crime. Capital punishment instead distracts from systemic reforms toward a stronger crime prevention factor: certainty of apprehension. This article will summarise the introductory remarks, words from the panellists and the discussion from state representatives and NGOs and NHRIs.

Introductory remarks

The president of Human Rights Council, Nazhat Shaheem Khan introduced the theme as “Human rights violations related to the use of the death penalty, in particular with respect to whether the use of the death penalty has a deterrent effect on crime rate”.” High commissioner for human rights, Michelle Bachelet delivered key note remarks on how the deterrence effect has been debunked, there is no evidence that death penalty has effect on crime – but abolition does. Rule of law and certainty of persecution is the deterrent, not the severity or finality of its punishment. Failure from deterring crime isn’t the only reason we should be against the death penalty –  it causes suffering, targets marginalised people, state judicial system is flawed.  “Death penalty has no place in the 21st century” The commissioner commended Kazakhstan on their ratification of the second Optional Protocol to the international Covenant on Civil and Political Rights in relation to abolition as well as encouraged Chad to ratify OP-2, following their abolition progress in May 2020. She welcomed the new US administration pledge to move towards full abolition of the death penalty and encouraged pursuing federal abolition. Her closing remarks commended the widespread abolition worldwide and reiterated the severe human rights violations involved.

Panellist Statements

The minister of Justice of Chad, Djimet Arabi, discussed the history of Chad after becoming independent. He spoke about the Death penalty, terrorism and violence in Chad. A complicated history of violence and terrorism in Chad contributed to government imposing strict punishments on terrorist crimes, including the death penalty.. Fighting against death penalty when the public is in favour is a difficult task, but minister Arabi highlighted the importance of humanising national and international framework and bolstering international legal cooperation. In his closing remarks he condemned the use of the death penalty to fight terrorism.
Commissioner of the International Commission against the Death Penalty, Tsakhia Elbegdorj outlined the 3 lessons in his experience of abolishing the death penalty in Mongolia as; A strong political will; International support; and maintaining the status of a death penalty free country. He reiterated that there was no increase in violent crimes after abolition of the death penalty in Mongolia, and there has even been a shift in public opinion. In his closing remarks he said the global community must remain vigilant. Member of the Human Rights Committee, Christopher Arif Bulkan pointed out that countries with moratoriums or abolition on the death penalty have no dramatic increase in violent crime and homicide. He discussed the strong imbalance in amount of murder convictions in relation to amount of murders in the Caribbean region, which raises the issue on problems within the judicial system and solving crimes. Focus must be placed on strength in the police and justice system, not severe punishments.
Professor of Criminology at Oxford, Carolyn Hoyle explained how the deterrent effect assumes rational thinking and action from the criminal, a knowledge of the law and weighing up the risks and benefits of a given action. She referred to the analysis of hundreds of studies in the United States which proved that some deterrent effects could be found in minor crime activity, there was no effect on violent crimes such as murder. In fact, murder rates fell in Canada and Australia after abolition and the rates in South Africa, while still high, were lower than before abolition was introduced.  Professor Hoyle reminded the panel that race, gender and caste are always considered in the criminal process, and these elements intersect with mental health issues. Combined these things can limit a defendants ability for a fair trial, and increases arbitrary nature of the death sentence.  
Professor Hoyle made her closing remarks on the issue of public opinion. She spoke about the importance to inform the public evidence based information about the deterrent effect on crime the death penalty has. She gave the example of public opinion of the death penalty in Malaysia dropping when they informed that the deterrence effect is not true in evidence based studies. She also spoke about the possibility of abolishing the death penalty without public support, UK abolish in 60s was not popular, but since its abolition the public opinion shifted greatly.

Discussion

The discussions that followed began with 23 speakers representing Council Members, Observer States and other Observers. There was a strong message against the death penalty, condemning its use as a violation of human rights, in particular the right to life. Many of the speakers advocated for an evidence based approach to law enforcement and policy making, noting the lack of evidence that links the use of the death penalty with a deterrent effect to crime rates. They highlighted the issues surrounding the death penalty such as miscarriage of justice and the irreversible effect the death penalty has in these situations. Many of the speakers congratulated abolitionist countries, with a focus on Kazakhstan who recently ratified the second Optional Protocol earlier in 2020. While most speakers condemned the death penalty, 6 retentionist state representatives spoke about the absence of an international consensus on the human rights implications of the death penalty. The same group of states advocated for the sovereign right of each state to determine their own legal code, often citing victim’s families, terrorism and the deterrent effect as justification for retaining capital punishment.

Following this, the floor was opened to the submitted statements from civil society organisations, NGO’s and national human rights institutions. Including the World Coalition’s member FIACAT, who delivered a joint statement with the Advocates for Human Rights and other World Coalition members. Marie Salphati, the UN representative for FIACAT delivered the statement which reinstated a firm stance against the death penalty in all circumstances, and in this context particularly as a deterrent to crime. The statement from this group reminded the panel of the assumption that criminals in all situations have the capacity to weight the benefits of committing a crime against the cost, severity and finality of the punishment.  However, the statement cited a series of research studies that consistently do not support the theory of deterrence. The belief that the death penalty deters crime, as put in the statement, is just that, a belief. There is no evidence in support of that belief. The statement reminded the panel that use of the death penalty distracts from the more important process of systemic reforms of police and judicial reforms. Other groups who delivered speeches the National Human Rights Council of Morocco, The Commission on Human rights of the Philippines, the Centre of Global Nonkilling and Amnesty International. In Amnesty’s statement they condemned the use of the death penalty in all circumstances, highlighting the extensive research carried out on the subject of the deterrent effect, including studies carried out by the UN, all concluding there is a lack of evidence to imply the death penalty has a deterrent effect on crime. They also welcome the abolition of the death penalty in Chad and hopes this sets a trend in other retentionist states.

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Public Opinion 

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