Organized by Harm Reduction International with the support of Australia, Austria, Mexico, New Zealand, the United Kingdom, and the Council of Europe – Pompidou Group and the European Union and the Office of the High Commissioner for Human Right
Full recording available here
Ajeng Larasati, Harm Reduction International: Good afternoon, everyone. Welcome to our webinar titled ‘The Death Penalty for Drug Offences: Latest Developments and Impact on Foreign Nationals’. My name is Ajeng Larasati. I’m the Human Rights Lead at Harm Reduction International. So this side event is hosted as part of the 65th session of the Commission on Narcotic Drugs, and is co-sponsored by the Government of Australia, Austria, Mexico, New Zealand, the United Kingdom, the European Union, as well as the OHCHR and the Pompidou Group. So many thanks for the co-sponsors for sponsoring this event. I would like to first mention that HRI stands in solidarity with the Ukrainian people, and we urge the government and international community to use their power to ensure the humanitarian corridors inside Ukraine.
Moving on, this webinar is carried out to specifically discuss the death penalty in the context of drug policy. For more than a decade, Harm Reduction International has consistently monitored the use of the death penalty for drug offences and advocate for its abolition. And earlier this week on Monday, we launched the Global Overview 2021 report.
Before I introduce the moderator for today’s webinar and hand over to him, I will play a pre-recorded opening remarks from Mr Felipe Gonzales Morales, the UN Special Rapporteur on the Human Rights of Migrants.
Felipe Gonzales Morales, UN Special Rapporteur on the Human Rights of Migrants: Thanks for the invitation to participate at this side event. As the United Nations Special Rapporteur on the Human Rights of Migrants, I have to address repeatedly this issue. I have to send communications to a number of states regarding foreign nationals who are confronting the death penalty as a result of drug offences. There is indeed a disproportionate impact on foreign nationals in the application of the death penalty due to drug offences. And there is an issue of lack of proportionality of the death penalty itself, especially when it is applied to cases of drug offences. This is aggravated in the case of foreign nationals who may not be aware of the existence of the death penalty for drug offences. An issue of my concern in many of these cases is the flaws regarding due process guarantees. This is generally problematic for death penalty cases in all countries that applied this penalty. But it is much more problematic regarding foreign nationals, and this is the consequence of serious flaws that, for instance, legal representation, access to justice for migrants. This is an issue that my mandate has repeatedly addressed. This included report to the United Nations General Assembly about the issue of access to justice for migrants. In regard to death penalty, this becomes especially acute. It is indispensable that migrants or foreign nationals have an adequate legal representation able to challenge the accusations where the death penalty is involved. The other issue concerning due process guarantees is the need for our strong participation by the consulates. That is the issue of consular assistance. If this consular assistance doesn’t come at the right time, this may severely harm the defendant and unfortunately, this is the case in many situations. As I’ve mentioned at the beginning of my presentation, I have sent communications to a number of states regarding specific cases of foreign nationals who are about to be executed due to drug offences. It is indispensable that states take seriously special procedures of the Human Rights Council in order to not execute this person. Thank you very much.
Ajeng Larasati, Harm Reduction International: So now I would like to hand over to Zaved Mahmood, our dearest colleague from the Office of High Commissioner on Human Rights. He is the human rights and drug policy advisor at OHCHR. And I wish you all a fruitful discussion during this webinar.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Good afternoon, good morning, and maybe good evening to all of you who join this side event from all over the world. And first of all, I’d like to congratulate the Harm Reduction International to organising this event with the other partners, as well as to publishing the landmark report, which came out this week on the death penalty and drug policy.
I would like to make a few remarks about death penalty in particular with regard to drug related issues. At the onset, I would like to make very clear that the United Nations opposes death penalty for all crimes. We know the Secretary-General, in his remarks, many times mentioned death penalty doesn’t have a place in the 21st century despite we know that death penalty is being used and people are being executed many places in the world on regular basis.
Just a few days back in one country in the North Africa, in one day, 81 people were being executed and few of them or many of them, we don’t know the exact number, for drug related offences. In another country in the Middle East, this large number of people are being executed, including for drug offences, terrorism and other political offences, which does not even comply with the international human rights law. Our Office has recently issued a written statement and condemned those execution. And the report, which has been published a day before yesterday with regard to death penalty and drug offences, is very alarming and very grim in a sense that the execution number has been increased. At the end, I would like to mention there has been several resolutions from the General Assembly on moratorium and also the UN Human Rights Council resolution, which addressed the issue of the use of death penalty against foreign nationals and the vulnerability they face during the trial process or even investigation process, as mentioned by Special Rapporteur on Migrants. With that note, I think today we are focusing the discussion on the migrants, the latest development and also the impact on foreign nationals. I would like to hand over the floor to Giada.
Giada Girelli, Harm Reduction International: So thank again for joining this side event this morning. In the next few minutes, I’ll walk you through some of the key findings of HRI’s report on the death penalty for drug offences, which was released on Monday. Before doing that, however, I want to take this second to express solidarity with the people of Ukraine and all those impacted by the conflict in Ukraine and in neighbouring countries, and reiterate calls made to member states and UN agencies, including UNODC, to cooperate to ensure the continuation of services and supplies, including harm reduction services, to all who need them in the community and in detention without discrimination.
Now moving to the topic of today’s discussion. In 2021, HRI confirm that 35 countries retained the death penalty for drug offences in their domestic legislation, and this is despite this form of punishment contradicting both international human rights and international drug control standards. And in the year, this was reiterated by OHCHR, Human Rights Council, UNODC and the INCB, amongst others. In 2021, however, only a minority of these countries actually executed people for drug offences. We could confirm executions took place in two countries: China and Iran. And we believe based on trends, that executions were also carried out in other two countries: Vietnam and North Korea. However, because of lack of transparency and censorship, we couldn’t confirm this information. Globally, 131 executions for drug offences were verified, excluding figure from China. And again because of lack of transparency and failure by the authorities to provide information on their use of capital punishment, this figure is to be taken not as a realistic representation of the phenomenon, but rather as representing a fraction of all actual executions that took place around the world.
On relevant developments, the first notable development was witnessed in Iran, where the Abdorrahman Boroumand Center for Human Rights in Iran confirmed 131 executions for drug offences in 2021. And this is a stunning 424% increase from 2020, which goes against 28% increase in total executions. Also, drug offences were responsible for almost half of all executions that we could confirm in the countries, pointing to a reversal of the trend that we saw in previous years. Worryingly, we also saw attempts to reinstate or introduce the death penalty for drug offences in the Philippines and in Tonga. As of now, these attempts have not been successful. However, both these developments and the developments in Iran remind us that the death penalty is an inherently political. And that we should approach abolition not as much as a goal in itself, but rather as drug policy and criminal justice reform.
Other notable developments were in Saudi Arabia and in Singapore. In Saudi Arabia, no drug related executions took place in 2021 for the first time in over 15 years. This is most likely due to a moratorium on drug related executions announced by Prince bin Salman in early 2020. It’s a moratorium that, however, has not been formalised or legalised in any way. And so until that happens, people on death row for drug offences in the country are seen to be considered at imminent risk of execution. And a mass execution of 81 people on 12th March remind us of how central this punishment is in the kingdom. Also in Singapore, no executions for drug offences took place for the second year in a row. However, we cannot ignore that four notices of executions were issued in four months between November 2020 and February 2021. All people whose execution was announced were people convicted of drug offences and all living with vulnerabilities or are belonging to a marginalised group. As of now, these executions are pending judicial proceedings. These people are to be considered at imminent risk of execution. Finally, we recorded a slight increase in drug related death sentences around the world. We could verify 237 death sentences in 16 countries. However, this likely represents only fraction of all executions that avoided sentences that were imposed. Also, because we could not access figures on Iran and Saudi Arabia, North China. And all the other countries we could verify that sentences for do not provide updated and official information.
So what do these figures tell us? First of all, we saw a huge increase in drug related executions between 2021, an over 300% increase. And this goes against this trend of regular decrease that we had witnessed in previous years. This reminds us that progress is fragile and comprehensive reforms are needed. Just tinkering with the few bits of law and policy like it happened in Iran in 2017 is not going to be enough to achieve sustainable and lasting progress. Secondly, the group of countries that actually execute people for drug offences is becoming smaller and smaller and is more and more isolated from the rest of the international community. At the same time, it’s a group that is strongly resistant to reform and abolition, and so targeted engagement is necessary. Finally, I would like to note this lack of transparency with an active censorship, coupled with suppression of civic space in retentionist countries, which remains one of the key issues for people working on this phenomenon, we cannot monitor, we cannot evaluate, we cannot change what we don’t know. Notably, human rights law requires these retentionist countries to be transparent on their use of the death penalty and regularly publish information both domestically and internationally. And so fellow member states, as well as UN agencies, including UNODC, have a responsibility to ensure that this obligation is respected.
I only want to take one more second to talk about the people that we know are disproportionately impacted by the death penalty for drug offences. As Dr Morales was mentioning before, one of these groups, many of which experience intersecting forms of vulnerabilities are foreign nationals. Around one-tenth of all the sentences for drugs confirmed in 2021 were against a foreign national. And this includes all but one drug related death sentences in Egypt, Kuwait and the Emirates. Ethnic minorities are also uniquely impacted. Another group which is worth highlighting is that of people experiencing mental health issues or intellectual disabilities. This is a population where we don’t know enough about, but recent studies, including in India and in Bangladesh, I’ve highlighted how pervasive this issue is on that front. Similarly, in Singapore, also, people with notice of execution was issued in the first five months live with some sort of mental health issue or live with an intellectual disability. Unfortunately, independent psychiatric assessments on death row are extremely hard to conduct, so we need more research on the prevalence of the issue on death row and specifically amongst people sentenced for drug crimes and other potential links between mental health issues and engagement in the job market. Finally, another group of people which are uniquely impacted or that experiencing vulnerabilities are on the death penalty for drugs is that of women, as also detailed in a 2020 report published by the Cornell Center on Death Penalty Worldwide and HRI. As confirmed by Iran Human Rights, the majority of women executed between 2020 and October 2021 in Iran had been convicted for a drug offence. And those drug offences are responsible for the overwhelming majority of women on death rows from countries such as Thailand and Malaysia.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you very much. It’s really important. I encourage our colleagues and partners to read the report and reflect on it. After publication of the report, we should get support from the member states, as well as other stakeholders of the implementation of the recommendation. We can produce very good reports but if implementation is slow, we are not moving forward. I would like to also mention that last year, two reports published by OHCHR from the UN human rights system, one report by the Secretary-General looking at the transparency and death penalty. It shows how that having no transparency has impacted the death penalty cases related to drug related offences and also on the issue of deterrence.
Without further ado, I would like to introduce our next speaker, Mr. Tony Ojukwu, Executive Secretary, National Human Rights Commission of Nigeria. Before handing over to him, I would like to highlight one small thing. This is so important to have the national human rights institution to be part of this meeting because all over the world we know the National Human Rights Commission played a big role in monitoring the situation with regard to the death penalty and even in some countries led the abolition of the death penalty. And with regard to Nigeria, we have information – large number of Nigerian facing death penalty elsewhere outside Nigeria. And they are being not only just victims of the justice system, but also racism issue. This issue was also raised in our recent report by High Commissioner on Racism and Law Enforcement on how the justice system dealt against the people of Africa and African descent. With that note, and acknowledging the important role played by the national human rights institution in the abolition of death penalty, I would like to invite Tony to speak.
Tony Ojukwu, National Human Rights Commission, Nigeria: Thank you very much, colleagues, and I want to thank HRI and their collaborators for organising this important event and for extended an invitation to the National Human Rights Commission of Nigeria to share its perspectives. We wish to express solidarity with the people of Ukraine, and other nationals who are facing grave humanitarian crises.
I would like to start my intervention by affirming our position that life is sacred and can only be taken under circumstances permitted by law. General Comment No. 36 is very instructive as the application of the death penalty to very serious crimes. As a national human right institution, we have been deeply worried about the increased application of death penalty and executions of foreign nationals, including Nigerians and Africans accused of drug related offences in foreign decisions, especially parts of Asia. While not condoning the crime of drug trafficking, our case against death penalty in foreign decisions stem from the following socio-legal premise: absence of fair trial, lack of access to consular assistance, prolonged detention, torture, inhuman and degrading treatment. The right to a fair trial is not only an international human rights standard, it falls under the realm of natural justice. Fair trial refers to a cocktail of rights recognised by international human rights law and national constitution. These include the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the 1999 Constitution of the Federal Republic of Nigeria, as amended. In some of the foreign decisions where death penalty is applied for drug offences, the right to fair hearing is hardly recognised or applied. And this includes the right to be presumed innocent until proven guilty, the right to be heard by a competent, independent and impartial tribunal, the right to be trialled within a reasonable time, the right to an adequate defense, the right to effective legal counsel of his or her choice, the right to be trialled in the language the accused understands, including the interpretation and translation, the right to self-determination, the right to freedom from discrimination and the right to appeal.
In addition to that, from our perspective, accused persons who have been trialled and sentenced to death in foreign decisions often lack access to consular assistance and other rights. Accused persons also have little or no knowledge of the criminal procedure, legislations and other court rules enabled them to prepare and present their case in court. The issue of prolonged detention, torture, inhuman and degrading treatment using drug offences are also issues of grave concern. Some accused persons have been known to confess to crimes under torture or false promises of lighter sentence.
As a national human rights institution, we see our roles in four major aspects.
- Agenda setting – This includes continuously placing the issue of death penalty for drug offences on the national and global agenda bringing attention to ongoing human rights violations associated with these practices.
- Monitoring and reporting – National human rights institutions have important roles to play in monitoring and reporting cases of their nationals awaiting trials and executions in other countries where death penalties are applied for drug offences. As the National Human Rights Commission, we monitor the conditions of their detention and their awaiting executions.
- Networking and information sharing – We work with our counterparts across other countries who apply death penalty to share information about detainees to raise awareness on conditions of trials and detention, and to work with the national authorities on possible alternatives, including commutation of sentences, moratoriums and other measures. We also work with regional and global bodies such as the Global Alliance for a network of national human rights institutions to put pressure on governments of countries that currently still apply death penalty, especially when it’s related to Nigerians.
- We also carry out national advocacy. We use our mandate to do frontline advocacy for reforms of laws that applied death penalty to drug related offences. We also continue to advocate for improvement in socioeconomic conditions, which deepen vulnerabilities associated with most drug related crimes. In addition, we work with eleven national agencies and civil society organisations to educate citizens on the consequences of drug offences, especially in foreign decisions.
In conclusion, I would like to urge the states that still apply death penalty for drug offences and have few situations where death penalties have been applied to individuals under mistaken identities on its application of laws – once life has been taken, no amount of remedy can be a replacement. I want to thank you for the opportunity to make our interventions, and I wish all of us successful deliberations. Thank you.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you, Tony. You touched up on really important issues, particularly with regard to foreign nationals who are facing death penalty in a foreign environment. And also that international convention, which you mentioned about the Vienna Convention, consular services, which is very critical in our Secretary-General’s report. Every year, we are reporting on this particular issue and also in the General Assembly resolution. I think, still, we haven’t done on this area of migrant workers or other foreign nationals facing death penalty outside their own country.
With that note, I’d like to introduce next speaker, Ms. Tiasri Wiandani. She’s from the National Commission on Violence Against Women from Indonesia. She’ll be focusing on the issue of intersectionality between women, drug policy and death penalty, especially in the context of women migrant workers. And recently, this particular issue has been addressed by civil society, as well as United Nations reports including Special Rapporteur on Summary Execution and also Working Group on Women and Discrimination. So this issue is at the centre of our discussion in different fora. I think that we can hear from Tiasri from the Indonesian context. I would like to hand over to her.
Tiasri Wiandani, National Commission on Violence Against Women, Indonesia: (…With simultaneous interpretation…) Good afternoon from Indonesia. I am representing the National Commission for Women and my material is on the situation of the death penalty on drug offences, trafficking in persons (TIP) against women migrants. The National Commission for Women started on the 15th of October 1998. The National Commission was born from the tragedy of May 1998 which was based on the Presidential Decree No. 181 of 1998 and reinforced by changes which was the Presidential Decree No. 65 of 2005. As a national commission for women’s rights, it is independent. It is not part of the executive legislative or judiciary, and it has foundations which is the constitution, Law No.39 of 1999 on human rights, Law No. 7 of 1984 on the ratification of CEDAW, Law No.5 of 1998 on the ratification of CAT. The priority programme of the National Commission on Violence Against Women from 2020 to 2024 is conflict and disaster, women detainees, sexual violence, and institutional strengthening, TIP, drug offences, and female migrants. This is part of working mandate that we have. The objective is to develop conducive conditions for the elimination of all forms of violence against women and the enforcement of human rights, especially human rights for women, improving efforts to prevent and overcome all forms of violence, increasing public awareness, reviews and research, monitoring, fact finding and documenting violence against women, providing recommendations and reviewing legal products and regulations, and developing cooperation and partnership at national, regional, international levels. So this is how we work. We receive complaints or reports regarding violence against women.
With regard to intersectionality between women, policies, drug offences and the death penalty, especially for women migrant workers, when we talk about the issue of protection for them, it is based on human rights as the foundation. Human rights apply universally for all. And so when we’re talking about women’s human rights in Indonesia, we still have occurrences of violation of human rights against women, and what often happens is sexual violence, which is one of the forms of Gender-Based Violence. There’s also discrimination based on sexual orientation and gender identity discrimination at the workplace and violations in the fulfilment of citizens’ rights. In Indonesia itself, we have cases of trafficking in persons or human trafficking. This is still quite commonplace. We know that TIP is a crime against humanity as expressed in the Rome Statute of the International Criminal Court. We have observed from the cases we have seen and the complaints we have received. We have seen the forms of TIP including mail order bride, provision of overseas scholarships, people are being seduced with work overseas and lucrative salary, the victim is using the wrong visa. These are the cases of the women migrant workers reported to the National Commission. It continues to increase. There’s trafficking, migrant workers cases.
So when we talk about migrant workers facing the death penalty, the advocacy is not just for workers, but migrant workers. And these are also foreign nationals geting caught up in drug offences, they then become involved with TIP. We have seen cases of TIP. They target vulnerable female workers and it means that they have to face a law and usually end up with the death penalty. We see there’s a vicious circle between poverty and domestic violence. For women facing poverty, there’s limited employment opportunity, limited education, early marriage, the vicious cycle of domestic work, and so women choose to work overseas and often they end up facing the death penalty due to circumstances. This is the exploitative and inhumane working conditions that we have found in all the facts that we have been able to find and the complaints we’ve received. There’s violence, which includes physical, psychological, sexual violence, economic violence and TIP for exploiting drug couriers. This often occurs where they were promised a better work environment, better jobs. There are death threats. They are trapped by narcotics indication. There’s a threat of homicide against their family. So these are the cases that we uncovered based on the facts submitted to us either by the victim or by the organisation facilitating the victims. When we talk about violence, of course, there’s an impact of that violence itself. This is with regards to intersectionality of the TIP cases, drug offences, and the death penalty. There’s the economic impact, sexual, mental and physical impact. We have also observed that the death penalty is the highest peak of discrimination and gender based violence against women where there’s a migration process overseas, and this makes women even more vulnerable as prospective workers as they are, and they’re facing inhumane treatment and situations with a limitation. We have found cases where there is some aggression due to the violence that they face, or exploitation of their labour and similar practices to enslavement to slavery, exploitation for drug smuggling.
The National Commission for Violence Against Women receives complaints and monitors cases of death penalty occurring both domestically and overseas. We’ve found cases where migrant women faced the death penalty and capital punishment. There’s this case of MJV, a Philippine national who faces verdict in Indonesia for carrying drugs and Merri Utami, who was found with drugs, these cases are closely related to the death penalty. We are encouraging regulations and also enforcement of international instruments and this strengthens the efforts to protect migrant women. And on the recommendations, we have asked the government to encourage the fulfilment of protection, the abolishment of the death penalty.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you very much, Ms. Wiandani. It was really important to hear from you about this intersectionality between women, drug policy and death penalty particularly one issue which you had mentioned the impact of how poverty plays a role into all this. We know that all over the world, not only Indonesia, that the poor are the victim of the death penalty because of the justice system the way it is formulated is really important and different reports from the UN Human Rights Office also looked at it. I think we need more evidence, like the evidence you have provided today to us.
I would like to move to our next speaker, Sana Farrukh from Justice Project Pakistan. She’s the Lead of the legal team. She will be presenting about the research Justice Project Pakistan conducted recently on foreign nationals sentenced to death and what are the lessons learnt from that process. And obviously just this kind of evidence put on the table is so important to understand the situation. So I would like to welcome Sana.
Sana Farrukh, Justice Project Pakistan: Thank you so much. First of all, I would like to thank the esteemed moderator and the organisers for giving us the opportunity. I’m Sana Farrukh. I currently lead litigation team at Justice Project Pakistan and I will be presenting some of our work on this area. JPP is a pro bono law firm and it represents the most vulnerable Pakistani prisoners facing the harshest punishments, both at home and abroad. We take an interdisciplinary approach to these issues. Led by lawyers and investigators, our legal team carries out strategic litigation, pursuing cases on behalf of individuals with the potential to bring systemic change. Our communications team devises rigorous media campaigns and public events directed towards changing the public perception about the death penalty. And fierce domestic and international advocacy campaigns with the potential to bring systemic change are carried out by our advocacy team.
To understand the issue of Pakistanis on death row around the globe, it’s important to have some context on what this diaspora means for our country. There are about 9 million Pakistanis working in countries around the globe. And 96% of these migrant workers are located in just six Gulf Cooperation countries. And more interestingly, about 90% are based in just Saudi Arabia and the UAE, and Oman. As of June 2021, according to government statistics, there are also reportedly 15,000 Pakistanis languishing in jails across the globe. 88 of them are on death row currently, and out of this, 40 are on death row in the Kingdom of Saudi Arabia. And this is a very alarming situation based on the mass execution that has recently taken place. Gulf countries are the largest jailers of Pakistanis. Most people are arrested for non-lethal crimes such as drug trafficking, theft, violation of immigration laws, and Saudi Arabia also remains the largest executioner of Pakistanis or nonfatal crimes. Every 9 out of 10 Pakistanis executed in Saudi Arabia between 2016 and 2019 were convicted for carrying narcotics into the Kingdom. And it’s important to see that on one end, the government of Pakistan is also encouraging these migrant workers to seek work abroad because they are the backbone of the economy. In the previous fiscal year, 9.94% of our GDP came from remittances from these countries, and we are set to surpass that already because in the first half of the current fiscal year, remittances by migrant workers made up about nearly $16 billion, and almost half of this came from the Kingdom of Saudi Arabia and the UAE alone. So the government, on the one hand, is really encouraging people to seek work abroad. But once they get there, there’s a severe lack of support provided to them. So on the end of Pakistanis deciding to migrate there, there are critical gaps in regulation or of regular migration. So based on that, the lack of the enforcement protection mechanisms and the lack of consular protection policy that would cover the briefing of migrants before they actually travel, they end up in trap often for drug offences overseas. Once they reach the host country, the lack of much more apparent, especially in cases of death row, on the consular services Pakistan is able to offer at this time are limited in situations where the person does end up on death row. There is lengthy pre-trial detention, confessions under torture, proceedings in foreign languages without translators, trafficking and lack of legal representation.
All of these issues were identified by us in our previous research and things we are exploring in our current research, and we see a lot of this mimicked in the conditions of foreign nationals who are currently languishing in Pakistani jails as well. So I’d like to take a minute to talk about this, too. There are 1,117 foreign prisoners in in Pakistan at this time. This is a 2018 statistic and the lack of information is also worrying for us and it’s hard for us to collect this information as it’s a politically sensitive topic. The majority of these foreign prisoners belong to India and Bangladesh and Afghanistan. Many report that they have never been visited by a consular officer due to citing security conditions. Harsher prison rules apply to these foreign nationals. And I would like to focus a little bit about some key issues within Pakistan, which is one, the lack of coordination between the relevant ministries, which results in these prisoners falling through the cracks and also delays in convening of the meetings of the Federal Review Board, which decides the fate of these foreign prisoners and the cases of delayed repatriation.
I just have one final point to make about what strategies have worked in the past and what strategies we are currently enlisting. We use strategic litigation to help the government appreciate what their duties are under our constitutional law and the Vienna Convention on Consular Relations. So Article 4 of the Pakistani Constitution speaks about a due process and places a positive duty on the government of Pakistan to ensure that due process, no matter where the prisoner is located. So by using strategic litigation, we are asking the government to make representations on behalf of our clients who are trapped on death row overseas. We also encourage the signing of prison transfer agreements, and that advocacy has resulted finally in a really important document being signed between Pakistan and the Kingdom of Saudi Arabia, and we’re hoping we’ll see a lot of repatriations under that agreement. We also take advantage of the broad political support for migrants working overseas because they’re the backbone of the country’s economy. So we use the Overseas Committee and the Committee on Foreign Relations, and keep in touch with the parliamentarians and consistently keep them abreast of important issues so that they can use best practices that we see around the world and hopefully also pass a consular protection policy in the near future.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you very much, Sana, for your presentation, and it is so important that civil society play a role even using different tools like you mentioned, strategic litigation and engaging with other different part of the government to address the issue of foreign national and your own national facing death penalty somewhere else. I have seen the two questions came up. I would like to request our colleague Ajeng if you’d like to present the questions.
Q&A
- In addition to the death penalty being used for drug offences, what data is there on the number of drug related extrajudicial killings and death in custody of people detained for drug offences?
Giada Girelli, Harm Reduction International: Briefly, yes, they are huge issues. Not only in retentionist countries but all over the world which is really hard to gather information simply because when the death penalty is a phenomenon that occurs within the ambit of the law and so sometimes we find deficient information or in the case that there are essentially abuses of law and violations of fundamental rights, and so is even harder to get information on that. That said, we know of trends in certain countries where extrajudicial killings are systematic occurrence in the context of drug control. There isn’t time to go through all of them, but just to mention some. And there are OHCHR reports on all of these situations. One which is possibly the most infamous now is that of the Philippines between 2016, when President Duterte took office and now the Philippines government in itself has acknowledged over 5,000 extrajudicial killings in the context of the war on drugs. Civil society and OHCHR also point to at least 8,000 deaths and civil society talks about over 30,000 people killed on the streets in the context of drug control operations, including of children.
We have a significant number of people killed on the street or by law enforcement in custody in Sri Lanka as well and Ambika Satkunanathan recently wrote a report together with HRI highlighting this sort of trend, which is also reported by OHCHR in 2021. In other situation that of Bangladesh where RAB has been responsibility for hundreds of deaths of people accused of drug trafficking. And then there are other situations, including that of Mexico, for example. So both countries where death penalties in place and countries where the death penalty is not currently part of domestic law.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: And it’s important to note also that one country now under International Criminal Court for an investigation that you mentioned, the Philippine situation, the International Criminal Court now investigating these extrajudicial killings and as well as other crimes against humanity with regard to war on drugs. I would like to take this opportunity to announce one even we are having tomorrow at 1:00 exactly looking at this issue, killing what war on drugs and killing these suspects.
- Consular officials from abolitionist countries in Malaysia have told me that it is easier for them to work on behalf of their citizens exposed to capital punishment than consular officials from retentionist countries. Does retention and use of the death penalty in Nigeria make it difficult for the Nigerian Human Rights Commission to challenge the lack of access to fair trials and inadequate consular services for Nigerian citizens in other jurisdictions, such as in Southeast Asia?
Tony Ojukwu, National Human Rights Commission, Nigeria: Of course, for retentionist country, it believes in death penalty that is part of the national law. Under the Constitution of Nigeria, death penalty is allowed. But the point is for drug related offences, it does no longer carry death penalty in Nigeria. So most nationals who leave Nigeria are not aware that the country they are visiting carries the death penalty for drug related offences. And these are challenges migrants have. They don’t have all the relevant information they need before they embark on migration. So it is a moral issue, because if you are a retentionist country and your national is in another country convicted for death penalty and you now liaise with the National Human Rights Commission of that country and pleading for your nationals not to be executed, they will be asking you about your own country too whether death penalty is also allowed.
Death penalty in Nigeria, if you are facing any offence that carries death penalty, you are given maximum access to justice. You are given every assistance you need to be able to defend yourself. If you cannot afford a lawyer, there is a Legal Aid Council. The Legal Aid Council must give you legal services and you cannot be executed until you have exhausted all your appeal. Even after that, there is a moratorium for execution of death penalty in Nigeria. But as a foreign national in other countries, you are handicapped. First of all, you may not even have the resources to hire a lawyer. Secondly, the embassies in those countries may not offer effective consular services due to local challenges in those countries. So foreign nationals are having a double kind of vulnerability. They are not given access to justice and those who can assist them also handicapped. But if you’re an abolitionist country, it is easier because your philosophy and your advocacy on death penalty is in line. But I think we should push generally that at least even if we have the death penalty, there’s the moratorium on executions and access to justice applied automatically to the fullest so that we have all the possibilities and opportunities to be able to put their case.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you very much for your response to this critical question. From my side I’d like to mention one thing – death penalty’s not only the undermining of human dignity, right to life, and all other human rights and it is inconsistent with international practice to moving forward for the full abolition of death penalty. And also from a practical point of view that in the UNGASS Outcome Document, all the members did agree to promoting the principle of proportionality. Death penalty is not respecting that commitment, that we need to also highlight as well as there is a practical aspect that abolitionist countries have obligation not to cooperate with retentionist countries with regard to any offences if this ended up in death penalty. So definitely the retentionist countries need to understand that to addressing drug problem or any other serious transnational organised problems., they need cooperation from the abolitionist countries. And if they continue the death penalty that could be a problem to receive the support, even in Special Rapporteur on Summary Execution indicated that abolitionist countries’ support would be considered as complicit to that execution.
I would like to invite our next speaker, Katie Mead from the Australian Permanent Mission here, one of the abolitionist countries in the world promoting abolition of death penalty all over the world.
Katie Mead, Multilateral Counsellor, Australian Embassy and Permanent Mission to the United Nations, Vienna: Thank you very much, Zaved. I want to start by saying what a great privilege it is for me to be delivering these closing remarks on behalf of the Australian government. Before coming to Vienna, I work very closely on Australia’s Strategy for Abolition of the Death Penalty and co-operated with colleagues from the other sponsoring states – Austria, Mexico, New Zealand, the United Kingdom and members of the European Union – to promote a world that is free of this most inhuman punishment through the Human Rights Council in Geneva. Australia’s position is very simple. Australia opposes the death penalty in all circumstances for all people. We are committed to pursuing global abolition of the death penalty and to supporting civil society, national human rights institutions and others in their efforts to encourage states still retain the death penalty to abolish it, or at the very least, to limit their use of the death penalty as a step towards eventual abolition. Events like this one are so important to raise the profile of this issue and to demonstrate how manifestly unfair, ineffective and inappropriate the death penalty is as a response to drug related offences. We welcome the messages we’ve heard today that amplify the disproportionate impact of the death penalty on foreign nationals, women and other individuals in vulnerable situations. I’d like to thank all the speakers today for their insights and hope that this further galvanizes us all to act on this important issue. I can assure you of Australia’s support. Thank you.
Zaved Mahmood, Office of the United Nations High Commissioner for Human Rights: Thank you very much. With that note, on behalf of all organisers of this event, I’d like to again thank the speakers and participants of this event from all over the world who have participated. And I hope that you are taking this message that death penalty doesn’t have any place in the world, in the 21st century. And we have to work towards universal abolition of the death penalty. We need to mobilise our efforts and continue working together on that. Thank you very much.