[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Aug. 6



LIBYA:

How Libya became the International Criminal Court's latest failure


Since the fall of Colonel Gaddafi in 2011, Libya's government and institutions 
have struggled to hold the country together. The justice system, in particular, 
has become a symbol of all that's wrong with post-Arab Spring Libya.

A video has emerged showing one of Gaddafi's sons, Saadi, apparently being 
tortured in jail - this after a Tripoli court sentenced Saif Al-Islam Gaddafi 
to death in absentia (he remains in jail in Zintan, held by a militia 
"government" that rejects the administration in Tripoli).

He was condemned to die along with former intelligence chief Abdullah 
al-Senussi and eight other members of the old regime, who are being held by the 
Tripoli authorities.

There are worrying questions over all these sentences. Both Saif Gaddafi and 
al-Senussi were subject to warrants of arrest issued by the International 
Criminal Court (ICC) in 2011, which Libya chose not to honour - and which the 
ICC was powerless to enforce.

At a time when the court finds itself under increasing pressure, Libya's 
treatment of figures from the old regime is a stark example of the stakes for 
international justice. It's also a reminder of how little clout the ICC really 
has at a time when it's arguably needed more than ever.

Hands off

Earlier international criminal tribunals, such as the International Criminal 
Tribunal for the former Yugoslavia and the International Criminal Tribunal for 
Rwanda, had primacy over national courts, which meant that they could require 
states to defer cases to the international tribunal. These tribunals later 
began transferring cases to domestic states - but only where they were assured 
that the accused would not be subjected to the death penalty and would receive 
a fair trial.

This helped improve states' own legal standards and practices. Rwanda, for 
example, abolished the death penalty and introduced new witness-protection 
measures to pave the way for the international tribunal to transfer cases back 
to domestic control.

By contrast, the ICC exercises jurisdiction under a principle known as 
"complementarity", which means that it can only try a case where the state that 
has jurisdiction is either unwilling or unable to prosecute.

That principle allowed Libya to challenge Gaddafi and al-Senussi's cases going 
to the ICC, since it was willing and able to try them in a domestic court. The 
defendants, on the other hand, wanted to be tried by the ICC - they were keen 
to avoid the death penalty (which the ICC cannot issue) and argued they would 
not get a fair trial in Libya.

Ultimately, the ICC determined that the trial against al-Senussi could take 
place in Libya, rejecting his defence team's argument that a state could not be 
considered genuinely "willing" to conduct proceedings if it failed to respect 
the accused's right to a fair trial. Despite those concerns, the Appeals 
Chamber effectively explained away al-Senussi's lack of access to a lawyer as 
being "due primarily to the security situation in the country".

By contrast, the case against Gaddafi was deemed admissible before the ICC, 
largely because of Libya's inability to try the accused, given that Libyan 
authorities had not been able to secure transfer of Gaddafi to stand trial (and 
indeed, they remained unable to do so, with much of his trial proceeding in his 
absence).

In spite of the ICC's ruling that Gaddafi should be tried in The Hague, and not 
Libya, the fact that he was never transferred to stand trial illustrates one of 
the court's biggest weaknesses: it lacks an independent enforcement mechanism 
and relies entirely on state co-operation to secure the transfer of defendants 
to its custody.

This is the problem that has played out in the Libyan case. In December 2014, 
the ICC found that Libya (which is not a party to the ICC's founding treaty) 
had not complied with its requests and referred the matter to the Security 
Council. The Security Council did call upon Libya to cooperate with the court 
in May 2015, but in vague terms and without explicit mention of Saif Gaddafi's 
transfer.

This is not the first time the Security Council has referred a situation to the 
ICC and then failed to help the court handle it. In December 2014, the 
prosecutor criticised the Council's hands-off attitude towards the situation in 
Darfur, which it referred to the ICC in 2005, and said that she was left with 
no option but to "hibernate investigative activities in Darfur". Back seat

Al-Senussi's case highlights another problem with the ICC: its failure to 
encourage fair trials.

In its decision on al-Senussi, the ICC interpreted its role in a quite a 
limited way. It decided that it can only take a lack of judicial impartiality 
into account where it's part of a deliberate effort to help the accused evade 
justice, rather than simply a fact of a flawed justice system.

So by allowing al-Senussi's trial to continue in Libya despite concerns about 
the fairness of the process, the ICC has made itself complicit in the resulting 
sentence.

Some might argue that complementarity means the ICC just can't fulfil the same 
moral function as other tribunals. I disagree; the reference to "due process" 
in the complementarity clause is perfectly ambiguous. It certainly leaves room 
for the Court to take fair trial considerations into account when it decides 
whether a case is admissible.

Instead, it's given its implicit consent for al-Senussi's death sentence after 
a deeply flawed trial - another strike against its already tattered reputation.

(source: The Conversation)






PAKISTAN:

With 8,000 on Death Row, Is Pakistan on a Killing Spree?


Since December, when Pakistan lifted its moratorium on the death penalty 
following the Peshawar terrorist attack that killed more than a hundred 
children, 180 people have been put to death. At that time, Pakistan had 
suspended the death penalty for 7 years. Now, with more than 8,000 people on 
death row, the Human Rights Commission of Pakistan has voiced concern over the 
pace that Pakistan is executing prisoners.

The purported reasoning behind lifting the death penalty was to allow the 
Pakistani government to get tough on terrorists. However, there are clear 
indications not just that the executions are not restricted to terrorists, but 
that they are too often the result of a flawed justice system. Human rights 
organizations and the UN have expressed outrage, but the executions continue 
unabated.

"We've seen time and time again that there is immeasurable injustice in 
Pakistan's criminal justice system, with a rampant culture of police torture, 
inadequate counsel and unfair trials," said Sarah Belal, executive director of 
Justice Project Pakistan. "Despite knowing this, the government has 
irresponsibly brought back capital punishment."

One case in point is Shafqat Hussain, who was hanged Tuesday morning for a 
crime for which he was convicted in 2004. Hussain was found guilty of 
kidnapping and killing a 7-year-old boy and sentenced to death, but he and his 
international supporters have maintained for years that he was a teenager at 
the time and tortured into confessing, a claim of which Pakistani courts 
remained unconvinced.

"Pakistan authorities have never undertaken a proper, judicial investigation 
into either issue," said the rights group Justice Project Pakistan, "instead 
seizing and refusing to release key evidence such as Shafqat's school record, 
which could have provided proof that he was under 18 when he was sentenced to 
death."

Supporters claim that Hussain was only 14 years old when he was prosecuted, a 
fact which his court-appointed attorney failed to bring forth any evidence at 
his trial. If it could have been proven that Hussain was a minor, then he would 
have been ineligible for the death penalty under Pakistani law. The police 
instead say Hussain was 23 at the time. Although it may seem simple, in a 
3rd-world country where records of births and deaths are routinely lost or 
disorganized, authenticating a birth certificate is easier said than done. In 
one hearing for Hussain, judges resorted to using pictures to verify his age.

Hussain's execution was postponed 4 times alone this year, due in part to the 
controversial nature of his conviction. He quickly garnered support from human 
rights activists and groups. While Hussain was set to be executed in January of 
this year, Pakistan's Interior Minister Chaudhry Nisar called for a stay order 
to investigate whether Hussain was indeed a minor at the time he was 
prosecuted. Others similarly advocated for Hussain, including the human rights 
lawyers that took on his case, the United Nations, such human rights groups as 
Reprieve and Amnesty International, and the country's own Sindh Human Rights 
Commission, which asked for an inquiry into the case.

"This is another deeply sad day for Pakistan," said David Griffiths from 
Amnesty International. "A man whose age remains disputed and whose conviction 
was built around torture has now paid with his life - and for a crime for which 
the death penalty cannot be imposed under international law."

There are deeper issues with the death penalty than those that can be seen in 
Hussain's case. Some see Hussain's execution as reflective of the many other 
wrongs in an already-flawed legal system that rushes to judgment and dispenses 
with justice. "The government's decision to push ahead with the execution 
despite calls to halt it from across Pakistan and around the world seems to 
have been more a show of political power than anything to do with justice," 
said Maya Foa, director of the death penalty team at Reprieve.

(source: nonprofitquarterly.org)

***************

Pakistan military courts could lead to hasty executions: Church, rights 
groups----Supreme Court rejects argument against controversial terror courts


Church officials and human rights groups in Pakistan say a Supreme Court 
decision allowing controversial military courts will pave the way for more 
secretive death penalty verdicts and executions.

The country's Supreme Court on August 5 dismissed a petition to stop the use of 
the divisive military courts that were introduced by lawmakers this year in a 
bid to swiftly prosecute suspects accused in high-profile terror attacks.

In an interview following the decision, Bishop Samson Shukardin of Hyderabad 
expressed concern that the use of military courts will lead to rapid death 
penalty verdicts.

"I believe a fair judgment cannot be made in haste. Everybody deserves a chance 
to present their case without pressure in government courts," said the former 
director of the diocesan office of the bishops' conference's National 
Commission for Justice and Peace.

"Speedy trials and executions cannot guarantee justice. Such systems have no 
space in true democracy."

Pope Francis has spoken out against the death penalty, calling it "an affront 
to the sanctity of life and the dignity of the human person" in a March letter.

Pakistan's government established the military courts in January in response to 
the deadliest terrorist attack in the country's history: last December's 
Peshawar school massacre where gunmen stormed an army-run school killing 133 
children and 19 others.

Mahboob Khan, a legal adviser with the Human Rights Commission of Pakistan, 
said the murder of children and school staff were heinous but that should not 
justify excessively speedy trials and executions.

"For 25 years, we stood against executions and our stance remains the same 
whatever the reason," he said in an interview.

Immediately after the Peshawar attack, Pakistan lifted a 6-year moratorium on 
capital punishment. In the ensuing months, at least 188 people have been 
executed, prompting calls from the Church to reinstate the moratorium.

The International Commission of Jurists has questioned the independence of 
Pakistan's military courts and their ability to deliver fair trials.

"The imposition of death sentences by military courts in Pakistan ... is 
incompatible with Pakistan???s obligations to respect and protect the right to 
a fair trial and the right to life," the group said in an April briefing.

(source: UCANews.com)






INDIA:

President Mukherjee rejects 92% of mercy petitions, highest by any President 
since independence


The rejection of Yakub Memon's mercy plea by President Pranab Mukherjee has 
once again brought the issue of mercy petitions to the limelight. While some 
presidents were kinder, others were not.

However, there is no consistency in the decisions taken by different 
presidents, While Pratibha Patil rejected only 14% of the petitions that came 
to her, Pranab Mukherjee rejected 92%, the most by any president since 
independence.

Since 1948, a total of 4,802 mercy petitions were handled by presidents, 3,238 
were rejected. In 1,564 petitions, the death penalty was commuted to life 
sentence.

How the mercy petition works

Under Article 72 of the Constitution, the president has the power to grant 
pardon and decide on mercy petitions. There is no time limit specified. But, 
the Supreme Court has observed in certain recent cases that delays in disposal 
of mercy petitions may be minimised and that the condemned prisoners have a 
right in insisting on a decision within a "reasonable time".

Though it appears that the President has sole discretion, former president 
Patil, in a press release issued in 2012 said that the President takes the 
decision only with the aid and advice of the Government of India as per Article 
74 of the constitution.

94% of mercy petitions decided in India's first 26 years

As per information available with the government and data compiled by Bikram 
Jeet Batra in his book 'Court of Last Resort', the number of mercy petitions 
filed & disposed by the president have fallen substantially over 4 decades.

More than 1,000 mercy petitions were adjudged over each of the decades 
1948-1954, 1955-1964 & 1965-1974. Since 1974, the number of mercy petitions 
filed and adjudged has dropped: no more than 9 were adjudged between 1995 and 
2006, when K R Narayanan and Dr A P J Abdul Kalam were presidents.

The decline in death sentences in general could be due to the impact of the new 
Code of Criminal Procedure, 1973 which made life imprisonment the punishment 
for murder, and death sentence the exceptional punishment, according to Batra.

In the late 1970s and the early 1980s, the death penalty was a subject of great 
controversy in the Supreme Court, leading to the landmark Bachan Singh 
formulation of the death penalty being awarded only in the 'rarest of rare' 
cases, wrote Batra.

This looks like a plausible explanation for the fall in death sentences and 
mercy petitions to the president after the 1970s.

No uniformity or logic in commutations or rejections

There seems to be no uniformity in either the rejection of mercy petitions or 
commutation to life sentences.

Commutations accounted for 24% of the decisions in the first few years after 
independence, rising to 29% between 1995 and 1964. The highest % of 
commutations (more than 50%) was during the period 1965-1974, when V V Giri & 
Zakir Hussain were presidents.

Since then, the numbers have fluctuated, depending on who was president. The 
least commutations (8.9%) was during 1985-1994 during R Venkataraman was 
president. This rose to 43.8% during 2006-2015, primarily because of the 19 
commutations by President Patil.

Different Presidents - Different Decisions

A cursory glance at the data for the past six presidents reveals the complete 
lack of consistency on mercy petitions.

While R Venkataraman rejected the 40 mercy petitions he received, Patil 
rejected just 3 out 22. Pranab Mukherjee rejected more than 92% of the mercy 
petitions he adjudged. K R Narayanan did not adjudge any petition, while Dr A P 
J Abdul Kalam adjudged 2, rejecting 1 and commuting the other. Shankar Dayal 
Sharma rejected 70% of the petitions he adjudged.

(source: indiatvnews.com)

***************

India's dysfunctional legal ecology cannot support capital punishment


This is not an article about the religious, moral, retributive or utilitarian 
basis for opposing the death penalty. This is also not about Yakub Memon or the 
arguments for and against his hanging. This is not about terrorism, or 
Pakistani/ ISIS inspired terrorists. It is not about the Mumbai riots or the 
Mumbai bomb blasts, either. It is not about Islamic terror or Saffron terror or 
about other convenient labels that make for animated discussions in TV studios 
or Parliament. It is about our legal eco-system and its fitness and 
professional integrity to qualify it for putting people to death. Muslims, 
Hindus and Sikhs.

Such a health check is necessary, because at this very moment 1617 condemned 
human beings are awaiting death in our prisons. I'm guessing that the majority 
of Indians would say that they are dangerous to society, like a cancer, and 
like any cancerous growth must be excised from our body. An apt simile, no 
doubt, but it must be remembered that carcinomas are removed on the basis of 
irrefutable, scientific, proven evidence- not on assumptions, subjective 
surmises and arbitrary guidelines. If I could have the same faith in our legal 
system that I would have in a diagnosis of cancer by a competent medical 
institution, I would not be having the doubts about capital punishment in our 
country that I have today.

Added to this is a mounting pile of evidence across countries that makes the 
sheer finality of this sentence blood-curdling, forcing us to think again 
whether we are omniscient enough to play God. The latest findings of the 
National Law University, Delhi clearly prove that the death penalty is 
disproportionately applied to the marginalised, the poor and the minorities. 
This is also the evidence in the United States where a black is 3 times more 
likely to be executed than a white. And the real chilling finding, by the 
National Academy of Sciences in the USA: that at least 4% of capital 
convictions were found to be totally wrong! This figure is bound to be many 
times higher in a country like ours (for reasons given later in this article), 
and therefore is bound to raise the question: is our legal system so perfect as 
to permit us to kill other human beings in cold blood ?

A legal eco-system consists of three layers: the LEA (Law Enforcing Agency), 
the Judicial System and the Government. The 1st carries out the investigation, 
the 2nd conducts the trial, and the 3rd legislates the laws, including mercy 
petitions and pardons. It is my submission that all three are so badly flawed 
in India that we might as well toss the (loaded) dice to decide who gets to 
hang.

The LEA first, which means the police. Today in India NO ONE trusts police 
investigation - not the government, not the opposition, not the public, not the 
judges. The trend is to demand a CBI investigation into every major crime, and 
not without reason, for state police investigations are perceived to be guided 
by money, political expediency, career progression and increasingly now by TV 
debates. The whole effort is to quickly nail the most convenient candidate, and 
not to get at the truth: this is not a hypothesis but a fact, as the abysmal 
conviction rates demonstrate. They can (and do) steer investigations into 
letting the guilty off the hook (as the unfolding Vyapam case and the burning 
to death of a journalist in UP, allegedly at the instance of a Minister, 
shows); or in framing innocent persons, as evidenced in the Pandher and the 
Arushi murder cases. The most blatant example of this, of course, has to be the 
Hashimpura mass murder of 40 Muslims by the PAC - after 33 years all 21 accused 
policemen were let off for want of evidence! Evidence is created or destroyed, 
witnesses are intimidated or bought off or even killed, as the Vyapam and Asa 
Ram cases have shown, post mortems are manipulated, records are conveniently 
lost. What ultimately lands up in courts is either a deliberately weakened case 
or a concocted one. To condemn someone to death on the basis of these types of 
investigations is, to me, a crime no less than the one the person is accused 
of. The LEAs are ever willing to pander to political influence and go slow in 
the investigation of cases the government of the day finds inconvenient, even 
cases involving terrorist activities and large number of deaths. The Samjhauta 
blasts, the Malegaon bombing, the Mumbai riots of 1993, the massacre of Sikhs 
in 1984- these are prime examples of how the police can be used to protect mass 
murderers from the death penalty. Inevitably, in a few more years all evidence 
will have disappeared (this has already happened in the Sikh killing cases) and 
everyone can live happily ever after.

This is not to say that that all police investigations are tainted or flawed; 
many convictions must be correct - but that is not the point. The point is 
that, once the credibility and fairness of a process is irretrievably damaged, 
all its outcomes become suspect.

Our judicial system is only marginally better. The growing perception among the 
citizens (one voiced by many eminent jurists also of late) is that the kind of 
justice you get is dependent on your political clout and wealth, which only can 
ensure the marquee lawyers who can sway the courts. How else does one explain a 
Salman Khan getting bail in a matter of hours, a Jayalalitha's conviction being 
stayed with the same alacrity, a Nanda walking free after only a couple of 
years inspite of deliberately killing a number of people and destroying 
evidence, an eminent lawyer continuing to practice inspite of being caught on 
tape suborning and influencing witnesses in an important murder case? The list 
is endless.

The fairness of our trial system is tested in other ways also, and found 
wanting. One expects judges to be proactive in sifting through the quality of 
evidence in at least important cases relating to murder and rape, especially 
given the stratagems adopted by the police. One rarely sees this happening, or 
any application of mind. The most telling illustration of this were the Jessica 
Lal and Nitish Katara cases, in which the accused would have just walked away 
had it not been for the sustained pressure by the media and civil society. 
Thousands of other similar cases probably just drop through the cracks in the 
judicial system, unnoticed.

Equity is lacking also in the manner in which cases are taken up for hearing, 
leading to justified suspicion of pick and choose. Why is there still no 
closure in the Uphaar fire case in which dozens died due to established 
negligence, even 18 years later? the Ansals got a paltry 1 year sentence (yes, 
for proven negligence leading to the death of 67 persons!), and even that is 
being appealed in courts and there has been no date given for 2 years! Why is 
the Supreme Court unable to find time to dispose off the appeals of the 
Nirbhaya convicts, a case which the government had promised to fast track, even 
though it has time for the Chautalas and Sahara Shris? I suppose justice is 
being done but it certainly does not appear so, and perception is all that 
matters in the dispensation of justice. These murky waters have been further 
muddied by the Supreme Court in a few judgements relating to capital 
punishment. I refer to the "rarest of rare cases" doctrine and automatic 
commutation of death to life imprisonment in cases of delay in deciding mercy 
petitions. Though well intentioned, these orders display a tint of hubris and 
confound an already confused subject. They introduce a discretion, subjectivity 
and arbitrariness into a process already lacking in transparency and equity. 
And they're not working. The Supreme Court has itself admitted that seven of 
its death penalty orders were erroneous, contrary to the rule of the rarest of 
rare and were incuriam. If death penalty is to be given only in the rarest of 
rare cases then how come 1617 people have been condemned to hang in just the 
last 15 years? Why should my life depend on the discretion of a judge who may 
be having a bad day, or just doesn't like my face? A Supreme Court or a High 
Court judge may use his discretion wisely , but can we expect the same from 
every Sessions judge holding court in a hinterland steeped in casteism, family 
rivalries, criminalised politicians and obscurantism? It is precisely this kind 
of subjectivity which enabled Dara Singh to escape the gallows even though he 
had locked up a missionary and his 2 minor sons in a car and then set it on 
fire, roasting them alive. This cold blooded murder cum infanticide was not 
deemed to be a rarest of rare case. Some degree of discretion in law is 
inevitable but the constant effort should be to minimise it, not increase it as 
the Supreme Court has done.

Even more subversive of justice is the doctrine that delay in deciding mercy 
petitions shall lead to commutation to life. This short-sighted fiat has thrown 
open the doors of discretion to the govt., one agency which can NEVER be 
trusted to use it wisely or fairly.

The government is the 3rd layer in the justice system and one more concerned 
with the politics of justice than its equity or fairness, It has used the 
doctrine of delay to the hilt for its own political ends, whether at the centre 
or in the states. Its shameless misuse for political ends has ensured that the 
killers of an ex-Prime Minister have been granted commutation (and may even be 
released prematurely if the Tamil Nadu government has its way), and that the 
killers of Beant Singh may well receive the same relief. Furthermore, the 
government has the discretion to decide 1 mercy petition and keep the others 
pending, depending on who it wishes to hang and who it wants to save. Petitions 
should be disposed off according to their place in the queue, but that's not 
how the system works: the petitions of Kasab, Afzal Guru and Memon were all 
made to jump the queue and quickly decided (rejected) with the last being taken 
PERSONALLY by the Home Minster to the President at night, while other, older 
ones are still pending. This is unscrupulous manipulation of a dubious doctrine 
to begin with.

This then is the reality of the larger criminal justice eco-system in India. It 
is plagued with inconsistencies, corruption, opaqueness, subjectivity, 
discretion, cronyism, hubris and plain gutter politics. It shows no mercy or 
compassion to the poor and disadvantaged, indeed, it singles them out for its 
own brand of justice. Even in the best of societies, as Faiza Mustafa noted in 
a recent article, "human judgements are never so certain as to permit society 
to kill a human being judged by other human beings." To permit it in a 
fractious and dysfunctional society like ours is an abomination. All reasonable 
Indians should strive to ensure that we join that group of one hundred nations 
which have abolished Capital punishment. We should not play God, especially 
when there will never be a consensus on whose God is the right God.

(source: Avay Shukla retired from the Indian Administrative Service in December 
2010----hillpost.in)





**********

Differing views on death penalty


Speakers in a panel discussion on death penalty in the wake of the execution of 
Yakub Memon were today divided on the issue with Congress MP Mani Shankar Aiyar 
and CPI(M) leader Prakash Karat favouring its abolition and BJP MP Udit Raj 
calling for a debate.

Aiyar said there was "arbitrariness" in the decision-making process at all 
levels while Karat asserted that death penalty was being used as a "political 
weapon".

They were participating in a discussion on 'Death Penalty and Indian Democracy' 
organised at the Indian Women's Press Corps here.

Karat, former General Secretary of CPI(M), also cited a resolution passed by 
the Karachi Congress in 1931 saying the stand against capital punishment was a 
part of India's freedom movement to which Aiyar remarked, "If Congress has 
forgotten the stand it took then, someone should remind them now."

"Large sections of political opinion are against death penalty because it's 
clear that it is being used as a political weapon. And Supreme Court is not 
immune to political opinion," Karat said.

He cited the executions of Afzal Guru and 1993 Mumbai blast convict Memon to 
buttress his point as opposed to the commutation of death sentences of Devinder 
Singh Bhullar or Rajiv Gandhi's assassins.

"The whole of Kashmir said don't hang him (Guru). But you will listen to the 
political voice of Tamil Nadu and Punjab but not Kashmir," Karat said.

Aiyar questioned the judiciary taking "collective conscience" into 
consideration while taking any decision in this regard.

Udit Raj, BJP's North West Delhi MP, called for a debate on the issue of the 
abolition of capital punishment because there was "nothing fair" regarding the 
death penalty in the present circumstances.

Maintaining that judiciary was "unaccountable" because of the collegium system, 
he asked "Has anyone ever questioned the political role played by the 
judiciary? The people of this country have no say over their (judges) 
appointments. There should be a debate going beyond Memon or any other 
individual."

Aiyar said the overall process in awarding someone capital punishment was 
vitiated by "arbitrariness and prejudice" and it was dependent on individuals 
holding the post of President, Home Minister or Supreme Court judges.

"In our name Memon has been hanged for a crime for which he would probably not 
have been hanged if his brother was available. Time has come to abolish death 
penalty and the final call is with the Parliament," he said.

(source: Press Trust of India)