The apprehension of Charles Taylor, the ongoing trial of Saddam Hussein, and the recent death of Slobodan Milosevic while in custody raise difficult questions for prosecutors, international lawyers and human rights scholars. Among the most pressing legal issues: Should anyone convicted of genocide or crimes against humanity be subject to the death penalty? The International Criminal Court and other UN-sanctioned international war tribunals do not countenance capital punishment, yet the U.S.-backed tribunal in Iraq does.
Abraham D. Sofaer, a senior fellow at Stanford University's Hoover Institution, and Kenneth Roth, executive director of Human Rights Watch, discuss the merits of capital punishment in trying dictators and other accused war criminals in this CFR Online Debate.
June 9, 2006
You're defending the death penalty by equating its opponents with pacifists, but the two are quite distinct. Human Rights Watch, for example, opposes the death penalty but has called for military intervention in places such as Bosnia and Rwanda to stop mass slaughter. Even today, we are pressing for the proposed UN force for Darfur to be given a mandate allowing the use of lethal force to protect civilians.
Nor, as you suggest, does Human Rights Watch always insist on Security Council approval of humanitarian intervention. There's a clear advantage to the legitimacy conferred by Council endorsement, but the rescue of people facing genocide or mass slaughter shouldn't depend on the often heartless realpolitik of Beijing or Moscow with its veto power.
Obviously, military intervention, even for humanitarian purposes, involves killing people. Yet there's a big difference between killing a combatant in the heat of battle, which international humanitarian law allows, and executing someone in custody, even after trial and conviction, which the trend in international human rights law rejects. The International Covenant on Civil and Political Rights was supplemented in 1989 by an optional protocol outlawing the death penalty; eighty-six governments now prohibit the death penalty at all times; eleven more ban it for ordinary crimes; and twenty-seven others have ended it in practice. Those 124 governments (the correct total number) demonstrate a clear abolitionist trend.
This trend reflects the growing view that it is morally reprehensible to treat a helpless person in custody as a pawn, his life to be snuffed out for some utilitarian purpose. That's true regardless of how awful his crimes may have been or how laudable the purpose of execution may be.
I might add, as well, that there isn't even evidence that the threat of execution is a better deterrent of mass atrocities than the prospect of life imprisonment. Indeed, a good case can be made that the kind of ruthless sociopath who commits such atrocities would often prefer a "martyr's death" to wasting away for years or decades in a lonely, out-of-the-way prison cell. Killing in combat is sometimes necessary to stop mass slaughter, but there's no proof that killing prisoners ever is.
Rather, the death penalty is really about retribution, an eye for an eye. No trial can hide that basic fact. But we shouldn't stoop to the level of the killers we confront. Let's respect as best we can the sanctity of human life, not add yet another execution to the toll.
Abraham D. Sofaer
June 9, 2006
You know that the death penalty is a lawful punishment under international law, is permitted for the most serious crimes in 110 countries (not just eighty six), and that those countries contain most of the world's population. Yet you persist in saying that taking the life of a person in custody is "inherently cruel," that the death penalty is "murderous," and that resorting to it even when authorized by law adds a "wrong" to the wrongs already committed. Perhaps you also believe the use of force in general is "inherently evil."
These views interfere with the meaningful enforcement of the international human rights that your organization and others have done so much to develop. Demands for enhanced rights and the trappings of justice are no substitute for the killing, maiming, and destruction that an effective defense against mass murder almost always entails. Opposing the use of force in all contexts other than with the approval of the UN Security Council means failure in most cases to protect the victims of injustice, since the Council rarely uses its powers to ensure collective security.
The result of current priorities has been to create a human rights image in world affairs that is intended to be wholesome and enlightened, but in the eyes of those that need protection is pathetic and ineffective. Sadly, the international human rights community has consigned itself the role of a burial society that largely watches and complains while victims die, and then works hard to dig up the bodies as evidence against an occasional murderer in a costly and purely symbolic show trial.
Effective law enforcement inevitably entails mistakes and abuses at any level of government. But we demand law enforcement that achieves security through prevention, efficient prosecution, and proportionate punishment. How do people who need protection in the international arena feel about an absolute prohibition on capital punishment, and limits on uses of force that give states a ready excuse to let them die unprotected? Do they regard the infliction of capital punishment on their oppressors as "murderous" and an added "wrong"? Do their views matter? Is the widespread conviction that the death penalty is a potentially just and useful punishment for major violators of human rights unworthy of any deference in so barbaric a world?
We should work harder, I believe, to protect the innocent from clearly established evils, and less aggressively on imposing limits on prevention and enforcement that have no international consensus.
June 8, 2006
You claim the death penalty is good for human rights, but for the 124 governments that see it as an affront to human rights, that sounds like the old line about destroying democracy to save it. And we’re not talking about some minor technical infraction, but about executing people in custody.
You believe the lack of a death penalty leads to vigilante violence, but in my experience, vigilantism typically occurs because the justice system is dysfunctional, not because the death penalty is unavailable. Indeed, when you compare governments that have kept or dispensed with capital punishment, vigilante violence seems more commonly an attribute of retentionist countries such as Iraq, Guatemala, or Nigeria than of abolitionist ones such as Canada, Costa Rica, or Senegal.
You blame the epidemic of death sentences in Rwanda’s national courts on the lack of a death penalty at the International Criminal Tribunal (ICTR) for Rwanda. But without any change at the ICTR, Rwanda has halted executions since twenty-two people were put to death in 1998, and the parliament is now seriously debating abolition of capital punishment and commutation of the sentences of the 1,000 convicts on death row. If international tribunals allowed the death penalty, as you suggest, they would encourage emulation. Instead, they are helping to break the cycle of violence and revenge.
As for the politicized fumbling of Iraq’s tribunal, Iraqis’ desire for the death penalty is only part of the problem. Much of the blame lies with the Bush administration, which refused to countenance an international tribunal for fear of indirectly legitimizing the dreaded International Criminal Court. In any event, the international community is right to insist on basic standards as a condition of access to its institutions. Otherwise, it may as well indulge the desire of many Iraqis to dispense with a trial, line up Saddam and his henchmen, and shoot them.
You complain that mass murderers who are not executed can cause trouble from prison, but international tribunals have avoided that problem by detaining major war criminals outside their home country. No Bosnian or Rwandan thus detained has caused a hint of trouble since completion of his trial. Iraq could have consigned Saddam to a similar fate—a washed-up man living out his dying days in a distant prison—had it been willing to break with the Bush administration’s refusal to accept international rules.
In sum, I don’t see the advantages you cite of applying the death penalty, but I see plenty of costs—to the people worldwide at risk of execution, and to a global trend away from such injustice.
Abraham D. Sofaer
June 7, 2006
I agree that the death penalty is dangerous. It can be applied unfairly, too broadly, and for sadistic or unsound reasons. But that is true of the use of force generally, and of punishment of any sort. If having the death penalty available for the most serious violators can help the cause of human rights, then we need to allow its use in such cases and work to limit its dangers.
The cases you cite of nations using their own courts to try mass murderers demonstrates the need to allow its use in international tribunals. The international community's insistence on excluding the death penalty as a possible punishment for Saddam Hussein was a major reason Iraqi authorities refused to allow him to be tried before an international tribunal. In Rwanda, the most heinous murderers used the international tribunal as a place to plead guilty and escape the possible application of a death penalty. The Rwanda government was offended by this interference with achieving justice as they understand it, and may have overreacted. If international tribunals had the power to impose the death penalty, they would have more credibility with victims and greater influence over its imposition.
The absence of the death penalty has adverse consequences in advancing human rights. Soldiers, police forces, or mobs sometimes deliberately kill people they believe are major murderers, rather than taking them into custody, because they know that the death penalty will under no circumstances be imposed. Long sentences of persons suspected of heinous behavior can lead fellow prisoners to attack and kill them, or their jailers to torture them physically or mentally. Worst of all, leaders such as Saddam Hussein and [Slobodan] Milosevic are able to continue to influence their followers during their long trials and from prison. The fact that they remain alive itself serves to rally those inclined to their causes. And so long as they live, they may someday be freed to wreak havoc once more. Saddam's calls for resistance during his trial, and the hope that he may return to leadership, can only have adversely affected security in Iraq. Indeed, the United States is unlikely to leave Iraq so long as he is there and alive.
The death penalty is not an end in itself, to be judged in the abstract. It is a potential punishment that has advantages that greatly outweigh its dangers in major cases of political significance. In the context of massive violations of human rights, its availability can have significant tactical and strategic value, and its absence some real costs.
June 6, 2006
The reasons for opposing the death penalty are well known. The deliberate taking of a prisoner's life is inherently cruel. Most people sentenced to death lack the means to retain adequate defense counsel or are members of disfavored groups. And the dangers of inherently fallible trials are compounded by the irreversibility of an execution. For these reasons, 124 governments have abolished the death penalty as a matter of law or practice.
You say that "most people" support an exception for major human rights crimes, and certainly if anyone deserves the death penalty it would be someone convicted of committing mass atrocities. But only eleven of these governments permit any exception to an absolute death penalty ban. Most governments are determined even in these cases to break with the murderous ways of the past and avoid adding yet another wrong to the atrocities being adjudged.
Because of this broad and growing view among governments that the death penalty is always an affront to human rights, none of today's international criminal tribunals permit it, even when addressing such extreme situations as the atrocities in Rwanda, Bosnia, Cambodia, Sierra Leone, Darfur, Uganda, and the Democratic Republic of Congo. Yes, as you point out, sometimes spineless governments use these tribunals as an excuse to avoid the military force needed to stop ongoing slaughter. But because murderous leaders typically use threats and violence to block any possibility of domestic prosecution, international tribunals are frequently the only alternative to impunity. If we want to prosecute these mass murderers, international tribunals without the death penalty are often the only game in town.
The sole recent exception is the Iraqi national tribunal established under U.S. auspices. Leaving aside its deadly security problems—two defense attorneys and a judge murdered—it has become a case study of why international tribunals are needed in such politicized and chaotic circumstances. The Iraqi government's political interference has already led to the removal of one chief judge. Meanwhile, Human Rights Watch hasn't found a single jurist in Baghdad who remembers a trial under Saddam that lasted more than a day and a half—hardly a training ground for handling complex criminal trials, and reason for the Bush administration to have thought twice before indulging its ideological dislike of international courts. Under these circumstances, the tribunal's many procedural failures were to be expected.
You say that a mistake or discrimination is unlikely in the case of those who commit atrocities, but I lack your optimism. After all, as Iraq shows, it's not just top-flight international tribunals that pursue these crimes. Rwandan national courts have sentenced some thousand alleged genocidaires to death in circumstances that are often anything but fair. The politically charged aftermath of mass atrocities is precisely when hatred toward one's persecutors' racial, religious, or ethnic group is likely to give rise to discriminatory and unjust verdicts.
Abraham D. Sofaer
June 5, 2006
The war in Yugoslavia led the UN Security Council to create the first international tribunal since Nuremberg, to try violators of crimes like genocide and torture. The Nuremberg tribunal sentenced several Nazi leaders to death. But some Council members insisted the Yugoslav tribunal [International Criminal Tribunal for the former Yugoslavia (ICTY)] be denied that power. The United States accepted this limitation, and it has been incorporated into the statutes of all international tribunals created since. No punishment is sufficient for mass murderers, but the death penalty comes closest. It is symbolically important that individuals proved to be responsible for major violations of human rights be subject to the ultimate sanction. While many governments oppose the death penalty, most people support its use in such cases, not merely as revenge, but to affirm the value of the lives lost, and to send the message that such conduct is intolerable and thereby to deter it.
The arguments against applying the death penalty generally are largely inapposite in cases of egregious violations of human rights. Mistakes and race-based differentials are highly unlikely in such cases. The passions and petty motives that lead to common murders are unlike the cold-blooded, racist, and malevolent calculations that underlie mass murders. The idea that killing murderers dehumanizes society, or reflects an abandonment of human compassion and redemption, has little cogency in the context of punishing monsters like Hitler.
The international community's refusal to make capital punishment a risk that mass murderers face is a symptom of its weakness in protecting human rights. Unlike Nuremberg, which was created after total victory over the Nazi regime, modern tribunals have been a substitute for using force, allowing millions to die undefended. The tribunals that have been created, moreover, are inefficient, costly, and formalistic. The Milosevic trial [at the ICTY] had taken over four years when he committed suicide, and cost some $200 million. The prosecutors were distressed that his death enabled him to "escape justice" by preventing them from completing the record of his misconduct. For most people, however, it was the prospect of his continued existence that offended justice.
To get serious about preventing and punishing crimes against humanity will require treating such violations as an aspect of international conflict, not merely of common criminality. Leaving such violators alive sends the wrong message to those similarly inclined, and a dangerous signal of continued hope to their supporters, ready to resume their offenses in the face of ineffectual enforcement.