Side event: The death penalty for drug-related offences: The impact on women and vulnerable groups

Organized by the Governments of Austria, Canada, France, Mexico, New Zealand and the United Kingdom of Great Britain and Northern Ireland, the European Union, Amnesty International and Harm Reduction International.

Naomi Burke-Shyne, Executive Director, Harm Reduction International: Drug offences do not constitute the most serious crimes. Use of the death penalty for drug offences is a Violation of international law.

H.E. Ambassador Didier Lenoir, Delegation of the European Union (EU) to the International Organizations in Vienna: We are against the death penalty because human rights are to be respected at all times. Linked to the dignity of the person. Proud that the EU is the world’s largest space free of the death penalty. Believe that states have a responsibility to protect citizens from the world drug problem, but must protect the human person. Death penalty is not an appropriate means. Cannot protect citizens by relegating human dignity. We will continue to defend and push this. Call on states still applying this to have a moratorium.

H.E. Ambassador Alicia Buenrostro Massieu, Delegation of Mexico to the International Organizations in Vienna: This is a very sensitive and important issue for Mexico. Impacts on women and vulnerable groups. Fundamental violation of human rights and international law. More than 30 countries and territories still apply the death penalty for drug offences. Results in ineffective punishment of most vulnerable groups. Use of prison sentences causes overcrowding. Persons convicted for minor crimes, affecting particularly women. Women engage in drug trade to provide for and protect their family and dependants. Drug offences are the second most common crime for which women are sentenced to death. While imprisoned, they are exposed to violence and blood borne diseases. Economic burden causes women to fall into worse forms of crime. Vulnerable groups and persons also have a high risk to be unjustly and disproportionately imprisoned. CND should address the public health dimensions, not only police.

Professor Adeeba Kamarulzaman, University of Malaya: Greeted on the plane just before you land in Malaysia that the death penalty awaits anyone trafficking drugs. Law in place since 1952. Some revisions, and recent years seen active discussion about abolishing. Doesn’t take much in terms of proportionality of sentencing into account. Have currently approximately 1,000 people on death row. More than 900 due to drug trafficking offences. Realization that death penalty has not stopped the drug problems in the country. Most arrests are low ranking drug mules. As of October 2018, close to 1,300 inmates on death row. 35 individuals executed in from 2007-17. None in the last two years. Foreign nationals represent 44% of persons on Malaysia’s death row. No official data, but informal survey from NGOs found 53 foreign nationals convicted of drug offences, 22 of which were women. Last 5 years seen a recognition that death penalty is not suitable. Review of the need to continue with this. In 2017, then Minister of Law began review which has continued under the current government. Parliament removed mandatory death penalty, giving judges discretion. Discussion heightened late last year when young man was given the death penalty for distributing medical cannabis. While there are promising movements to this effect, we are not there yet. Considering three options: first, total abolition of death penalty; second, removal of mandatory death sentence (done in 2017); third, removal of discretionary powers of the court.

Putri Kanesia, KontraS: Death penalty still acknowledged in Indonesia. Currently only applied for drugs, murder, and terrorism. Parliament discussing other cases that can apply the death penalty. In 2015, President declared war on drugs. 14 death row inmates were executed, 2 of which were women. Most of death row inmates face an unfair trial. Process of law only considers evidence from prosecutor, not their lawyers. Most of death row inmates are poor and uneducated. Impacts the unfair trial process. Women facing sexual abuses. Death row inmates are often victims of human trafficking or drugs syndicates. Mental illness issues are not considered in court cases.  Death penalty also acknowledged for a child (for a murder case), but has now been released as he was still under age at the time. Impact on families. Many waiting for many years, most more than 10, to be executed. Are tortured, and traumatizes the family. No proper updates. Must give information at least 72 hours in advance, but given less than 2 days before execution set to occur. Stigma from government and society. Refuse lawyers, journalists, and local people to accompany them. Firing squad is there and they are hurrying up and celebrating. President refuses to grant clemency for death row inmates of drug offences. No guarantee of a fair trial. Fail to provide protection to women. Need criminal justice reform. Revision of Penal Code. Strengthen regional and international solidarity to commitment to a moratorium of the death penalty in Indonesia.

Giada Girelli, Harm Reduction International: The death penalty for drugs is prohibited by international law. This is the consistent interpretation of UN human rights bodies, UN drug control bodies, the European Union, and dozens of states. In spite of that, at least 35 countries retain the death penalty in law for a range of drug offences. Not all countries implement those laws. In fact, in the past 10 years executions were concentrated in 6 countries (China, Iran, Singapore, Indonesia, Vietnam, Saudi Arabia) – so an extremely small minority of the international community. At the same time, however, drug offences were responsible for a very significant proportion of total executions – almost 40% between 2008 and 2018. This explains why it is so crucial that countries who are against the death penalty, as well as UN bodies, take a strong stance against this practice. With regards to 2018, HRI recorded at least 93 executions in 4 countries (China, Iran, Saudi Arabia, and Singapore). This number doesn’t include data from China, where a state secret is in place regarding the death penalty, and it represents the minimum confirmed number. This means that it is likely that more executions took place that we are not aware of, because of the systemic lack of transparency that characterises the use of capital punishment in many countries. Still, it is a significant decrease from past years – it is an almost 70% drop from 2015 and almost 90% drop from 2017. This manifests a global trend away from capital punishment, and is mainly due to positive developments in high applications countries such as Malaysia and Iran – often after an acknowledgement by state officials that the death penalty doesn’t work as a tool of drug control. Although executions are decreasing it is important to keep focusing on this issue. One of the reasons why is that people continue to be sentenced to death for drugs – even in countries which don’t execute. We found evidence of at least 7,000 people (probably hundreds more) on death row for drug offences in 19 countries. Many of them are foreign nationals, and many – if not most – of them endure grave violations of fundamental rights. For example, they suffer from physical and psychological violence and other forms of inhuman treatment (in many cases people live shackled or in severe isolation for up to 23 hours a day). They are denied adequate food, water, and sanitation. They remain on death row for long and uncertain periods of time, with extremely limited contact with the outside world, including their families. As this panel focuses on vulnerable groups, I will touch upon foreign nationals. These are disproportionately impacted by the death penalty, including for drug offences; for example: – In 2018 at least 29 of 59 executed for drugs in Saudi Arabia were foreign nationals, most from Pakistan and Nigeria. 11 more foreigners lost their lives in Saudi Arabia because of drug-related executions in the first two months of 2019. – In Malaysia, 569 of the almost 1300 death row prisoners are foreign nationals – many if not most convicted for drugs. There are several reasons why foreign nationals are overrepresented, all intertwined: Several reasons, all intertwined: 1) Vulnerability and lack of resources. Many foreign nationals on death row present several commonalities, for example: Precarious socio-economic position, Don’t speak or are not fluent in the language of the country, and do not know (much) about the laws and procedures in place. They have no or limited support network. All this makes a person more vulnerable, and makes it harder to ensure adequate defence. 2) Foreigners often discriminated. Not rarely we hear political discourses about foreign nationals bringing drugs into a country with the intent of corrupting the youth or society, and that for this reason they should be punished more harshly. This kind of rhetoric plays against them: they tend to be over-suspected and over policed. Also a level of discrimination within the criminal justice system. For example, recent study on Malaysia found that foreigners convicted to death for drug off are half as likely as Malaysians to have their sentence reviewed or overruled in appeal – and discrimination is one of the reasons why. 3) Finally, they are exposed to unique violations of their fundamental rights. Precisely because there is an awareness that foreign nationals tend to be discriminated and more vulnerable, international law prescribes a range of unique safeguards – for example the presence of an interpreter at all stages of the process and the right to consular assistance. Regrettably, both these rights are routinely violated around the world. We thus urge Member States and the UN, including UN drug control bodies, to: – Be advocates against this form of punishment, including in this important forum (CND) – Require full transparency on the use of capital punishment and on the conditions of detention on death row – Ensure that the rights of people on death row or risking death row are protected, including by complying with the obligation to provide consular assistance.

Delphine Lourtau, Cornell Center on the Death Penalty Worldwide: In the brief time that I have, I’d like to invite us to reflect upon the ways in which support for the death penalty is incompatible with a commitment to gender equality, and what this teaches us about capital punishment in general, beyond vulnerable populations. For a long time, we knew little about the specific challenges and situation of women facing the death penalty. Few scholars and activists devoted attention to their plight, and the gaps in our understanding led to gaps in advocacy. Women were, and to a large extent remain, an invisible death row population. In September of last year, the Cornell Center on the Death Penalty Worldwide published a global study on women facing capital punishment that aims to start remedying the lacuna in our knowledge. One of our main findings is the death penalty exacerbates pre-existing gender inequality (i.e. inequality that exists outside the legal process). In what ways? Those who are least equipped to face a capital trial are most likely to receive a death sentence. In particular, the kinds of disadvantages women cumulate as a result of their subordinate social status impact their ability to receive a fair trial. Generally speaking, women are poorer than men, women receive less education than men, women’s status in their families is lower than men’s. They lack the family support systems that men enjoy. This is in part because men have female support systems, and women do not have male support systems. A higher proportion of families cease visiting and supporting their relative on death row if she is a woman than if he is a man. Cumulatively, these factors play out to heighten the risk that women will receive an unfair trial. Specifically, without money and family support, women have less access to effective lawyers. Instead they depend on legal aid lawyers, who are almost universally denied sufficient means and time to mount an adequate defence. In multilingual jurisdictions, women are less likely to speak the language of the courts. It’s harder for them to participate meaningfully in their own defence. Without family support, there are fewer resources for investigating a case. Without family cooperation, it is extremely difficult for lawyers to obtain the information they need to properly represent the defendant and ensure her a fair trial. Poverty is a critical factor that pushes women to engage in drug offences. Studies show, not coincidentally, that many women who are sentenced to death for drug offences combine these disadvantages: they are mules, foreign nationals, with low socio-economic status, and from ethnic minority backgrounds. The death penalty exacerbates gender-based disadvantage. This fact makes the death penalty incompatible with a commitment to gender equality. But there is more. Female capital defendants not only run a higher risk of receiving an unfair capital trial; once they are in a capital trial, they suffer greater harm from courts that fail to consider the gendered realities of their lives. The “most serious crimes” standard implies considering mitigating factors not only for offences but also for offenders. There is much debate around the “most serious crimes” standard when it comes to the definition of capital offences themselves, but we devote little attention to its corollary: how the “most serious crimes” standard applies to offenders. International law requires that we look not only at the category of the offence, but also at the particular circumstances of the offence and the individual circumstances of the offender. What does this entail? An individualized sentencing process in which the defendant has a meaningful opportunity to present all the relevant mitigating or attenuating evidence about his or her personal circumstances and the background leading to the offence. With respect to women prosecuted for drug offences, it means that defence lawyers must have the resources to investigate, and courts have an obligation to consider, all of the intersecting axes of vulnerability of capital defendants, (including for instance the issues raised by the excellent briefing paper put together by HRI and the University of Oxford). Examples include: evidence about women’s poverty, especially when they provide for dependents, as a motive for the offence; evidence about coercive or abusive relationships connected to the offence as a factor limiting women’s degree of involvement in the offence (e.g., as of 2018, 6 of the 9 women on death row in Indonesia were convicted of drug-trafficking offences. 3 of the 6 were drug mules who stated that they were tricked or coerced into smuggling drugs, and 2 others were arrested with their husbands and denied any involvement in their partners’ drug dealing). This is especially important as we know that women on death row are disproportionately affected by gender-based violence. Moreover, these apply to all capital offences, and there may be more: evidence of mental illness or intellectual disability, which increases the risk of a person being manipulated, or of falsely confessing; evidence of racial or ethnic bias. In many countries, capital trials do not consider the individual circumstances of the defendant either because the law does not allow it under mandatory death penalty legislation, or because in practice: proceedings are expedited, or defence lawyers have insufficient resources, time, and training to gather and present mitigating evidence. When these proceedings result in a capital sentence, the outcome does not meet the “most serious crimes” standard, and the death sentence is arbitrary and contrary to international law. What about countries that have carved out a narrow exemption to their mandatory death penalty laws? For example, in Singapore, where the court may order an alternate sentence if (1) defendant played no greater role than that of a courier (lower level of criminal responsibility) and (2) cooperated with the police in a substantive way (plea bargain) or has an intellectual disability that substantially impairs their mental responsibility for their acts (this is the one mitigating factor). These strict requirements leave almost no place for courts to consider the individual circumstances of the offender, and in that sense, these laws continue to operate like a mandatory death penalty scheme. Thinking about vulnerable capital offenders shines an important light on the concept of mitigation and why it matters. Viewed from the perspective of the woman on death row one immediately grasps the arbitrary and unlawful nature of the death sentence. This is only an entry point into understanding that international law requires mitigation in all capital cases. This should lead us to pause and consider how many defendants – male and female – around the world receive an unlawful death sentence because the court did not meaningfully consider their individual circumstances. This is why we talk about vulnerable capital defendants. This analysis does not aim to plead for exceptional clemency for individuals who have suffered from intersectional discrimination. It pleads for the universal application of international legal standards and the rule of law.

Ambassador Nicole Roberton, Permanent Representative of New Zealand to the United Nations (Vienna): Stand against the death penalty. Commend this event as the most important thing is to keep the dialogue going. Women that are on death row are women who are often already marginalized and are victims. Compounding impact. Children also imprisoned with the mother. Women that were released not reaccepted into communities and ended up reoffending with no alternative choices. Individualized approach to this issue. Discussion at the CND is very binary. Makes for an unproductive diplomatic exchange. Need to follow advice of those that brought recommendations today to introduce nuance to the discussion and explain the people as human beings and the circumstances they face. Welcome the work in Malaysia. Fantastic that there is this discussion. Malaysia walking away from the death penalty would set an important precedent for Southeast Asia.

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