Let the demos do battle with the death penalty

Last week, a court in Bali sentenced a grandmother from Gloucestershire to death by firing squad. Lindsay Sandiford had been caught at Bali airport last year carrying 10.6 pounds of cocaine in the lining of her suitcase. The Indonesian judges sentencing Sandiford ignored prosecution requests for a 15-year sentence, finding that there were no mitigating circumstances that allowed them to reduce the maximum penalty.

Sandiford will now become engaged in a lengthy appeal process that may mean she is never in fact executed. Her case is likely to be heard by an appellate court, then the Supreme Court. She may then appeal for clemency from Indonesia’s president. Indonesia has not carried out any executions since it put the Bali bombers to death in 2008. Last year, it shifted its vote on the UN moratorium on the use of the death penalty from opposition to abstention, which many took as an indication that there is a political appetite for repealing the death penalty entirely.

Indeed, there was a distinct sense that the Balinese judges had gone ‘off message’ in passing the death penalty on Sandiford. Sandiford’s local MP, Martin Horwood, called on the UK Foreign Office to ‘say to Indonesia that the days of the death penalty ought to be passed. This is not the way that a country that now values democracy and human rights should really be behaving.’ Amnesty International, which calls the death penalty ‘the ultimate violation of human rights’, called on the Indonesian government to ‘impose an official moratorium’ on executions.

For Sebastian Saville, of humans-rights lobby group Release, the sentence was an indictment on a ‘world which believes in punishment, not in fixing things’. For the British government and Western human-rights lobbyists, the verdict of the Balinese judges represented the rogue actions of a state which was meant to be, in the words of Horwood, ‘on the road to respecting democracy and human rights’.

When it comes to the death penalty, the UN has been trying to bring the world ‘on message’ for some time. In 2007, 2008 and 2010, the UN affirmed resolutions calling for a moratorium on the death penalty in order to, in the words of the resolutions, contribute ‘to the enhancement and progressive development of human rights’. The number of countries opposed to the moratorium fell from 54 in 2007 to 41 in 2010 – although some countries, such as South Sudan, continue to execute in spite of voting to affirm the resolution. In advance of the 2012 vote, Norway’s UN ambassador said the UN general assembly saw the moratorium as a ‘global campaign’ on a ‘matter of principle’, and that the ‘important message for some key countries to understand [is] that there is a majority in the international community that wants to do the right thing on difficult issues’.

Of course, the UN’s stance on the death penalty cannot be ‘principled’. One of its most powerful members, the US, was the fifth most prolific executioner in the world in 2011. When the UN talks about ‘some’ countries, they are talking about the small ones, like Indonesia and South Sudan, seen as too primitive to be able to decide for themselves how to treat condemned criminals. No one at the UN anticipates that the US will become part of the moratorium, primarily because two thirds of Americans still want the death penalty. But this will not stop the moratorium movement making hypocritical calls to the little countries of the world to civilise themselves away from capital punishment.

In the majority of cases, the death penalty is an abhorrent exercise of state power, because it denies condemned criminals the fundamentally human capacity for redemption. It is a cynical and coldly pragmatic response to those human beings who we believe cannot be saved from themselves. Lindsay Sandiford is no hardened criminal. Even the most staunch death-penalty advocate must have balked at hearing the Indonesian judge’s ruling that she deserved the death penalty for ‘damaging Indonesia as a tourist destination’.

Nevertheless, the intricacies of the death-penalty debate are not assisted by the UN nor the human-rights lobbyists. The death penalty is not something that can be fixed with international law. No matter what we think of it, the death penalty, in most cases, is a democratic expression of public belief that criminals should die for committing certain crimes. The belief that there is one international ‘message’, which all the world governments should stick to, is not only hypocritical – it also denies the sovereign right of ‘some’ states to decide for themselves how to punish criminals. Like it or not, there are still vast swathes of the world’s population who believe that some crimes deserve death. Rather than try to change their minds, international law simply tries to prevent governments acting on the democratic will of their people. Of course, there are undemocratic regimes that put their citizens to death irrespective of what their populations think. But that does not justify the role of international law in resolving what should be democratically determined questions.

If Lindsay Sandiford is executed, it will be a terrible tragedy. But the call from the government and human-rights groups in the UK that Indonesia should abstain from executions, for the purposes of advancing human rights, merely illustrates the role of international law in delegating important questions of national policy away from national populaces.

While the UK government, and anyone else who can, should do everything possible to save Sandiford’s life, neither we nor the UN should have any say in deciding for the people of Indonesia how they punish the guilty. For as long as there are people in the world who believe in the death penalty, their governments will have a duty to carry out their wishes. Anyone who believes both in democracy and in the capacity for human redemption should try to win the argument against the death penalty with national populaces, rather than join the anti-democratic finger-wagging of the human rights lobby and the UN.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.