The Codification of Femicide in Argentina and Latin America

ni-una-menos

Photo Credit: Sofía González

By: Dina Ljekperic

In May 2015, 14-year-old Chiara Paez was murdered by her 16-year-old boyfriend. Pregnant at the time, she was found buried in the garden of his home in Argentina, in the province of Santa Fe. Thousands of Argentine women responded in protest, fed up with the ever-increasing murder of women and girls. Close to 300,000 women gathered in Buenos Aires on June 3, 2015 and shouted “Ni una menos” (not one less), demanding that not one more woman be lost to gender-based violence in Argentina. The Ni Una Menos movement spread across Latin America, with anti-gender-based violence protests erupting in nearly every country.

Official statistics are absent, but it has been estimated that a female is killed In Argentina every 30 hours.

Gender-Based Killings in Latin America

While gender-based violence is by no means unique to Latin America, more than half of the countries with high female murder rates are in the Americas, with El Salvador topping the list. Throughout the region, the killing of women and girls has increased at an alarming rate compared to men and boys.

The UN describes several factors that leave women more vulnerable to violence in the region: discrimination, poverty, fragile states and institutions, organized crime, narcotraffic, and militarized post-conflict situations.

Argentine activists, along with activists across Latin America, also point to the prevailing “machista” culture, drawing a link between the everyday accepted acts of sexism and harassment to the prevalence of gender-based murder. Continue reading The Codification of Femicide in Argentina and Latin America

Death to Death Penalty

By: Jitesh Dudani |

What says the law? You will not kill. How does it say it? By killing. -Victor Hugo

 International Perspectives on the Death Penalty

Opposition to the death penalty has emerged globally under the developing concept of human rights. The international movement for the abolition of capital punishment arose after the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. According to Article 3 of the UDHR, imposition of the death penalty is in conflict with the right to life, which is the most basic human right. Although the UDHR is legally non-binding, the General Assembly of the United Nations has made efforts since 1959 to promote the respect for the right to life and the desirability of abolishing capital punishment. Many international instruments, most notably the International Covenant on Civil and Political Rights (ICCPR), prohibit the imposition of the death penalty. One of the major steps towards achieving the goal of abolishing the death penalty was the adoption of the Second Optional Protocol to the International Covenant on Civil and Political Rights on December 15, 1989, by the General Assembly with the help of the UN Human Rights Commission. The Optional Protocol aims to abolish the death sentence as a punishment for crime. Similarly, a Protocol to the American Convention on Human Rights to abolish the death penalty was concluded in 1990. More recently, in December 2007, the United Nations introduced a moratorium on execution with a view to abolish the death penalty. Presently, more than two-thirds of countries in the world have abolished the death penalty in law or practice. Ivan Simonovic, the UN Assistant Secretary-General for human rights, recently said in an address to the Human Rights Council in Geneva that about 160 countries have abolished the death penalty to date, either legally or in practice. This piece will explore why all countries in the world should strive to achieve the aims of the UDHR with respect to capital punishment and should instead turn to alternative methods, most notably restorative justice.

Arguments for Abolition of the Death Penalty

The death penalty is not an effective deterrent. Simonovic, in a 2015 presentation to the Human Rights Council, highlighted studies showing that the death penalty does not deter crime. Rather, a higher administration of the death penalty may lead to a greater occurrence of murders and other violent crimes. In the United States, states in the south are responsible for imposing eighty percent of death penalty punishments, yet these states have a higher murder rate than the states in the north. Thorsten Sellin, an American socialogist and pioneer of scientific criminology, in his studies, found that New York, California, and Texas, respectively, had 0, 1, and 239 executions from 1989 to 2002; however, they had the same murder rate from year to year, with Texas boasting the highest average.

Additionally, the death penalty once executed, is irreversible and irremediable. If a person’s innocence is discovered after he has been executed, there can be no suitable remedial measure which can be taken to correct the harm. The human institutions for criminal justice are not infallible. However, if the death penalty is enforced before the mistake is realized, all possibilities of remedying the harm die. Since 1973, 123 people have been released from death row based on later-discovered evidence of their innocence. If, in these cases, the state managed to expeditiously carry out the sentences, these people would have been executed and there would be no opportunity of correction of the mistake.

Moreover, the death penalty denies the opportunity for redemption. Archbishop Desmond Tutu, once famously said, “No one is beyond redemption.” No person is born a criminal, but becomes one due to the treatment he faces at the hands of society. As a result, society has the burden to take measures to reform him. Claiming that a person is beyond reformation is a recourse adopted by the state to avoid the hassle of reforming someone. Billy Moore, a death row inmate who was later released due to the victim’s family’s petition, among other efforts, is a living example along with many others that people on death row are not beyond reformation.

Perhaps most significantly, the death penalty is cruel and inhumane and can be considered institutionalised murder by the state justified on notions of retribution. It has also been seen as a violation of the Convention against Torture (CAT). The UN Special Rapporteur on Torture stated that according to the evolving international standard, the death penalty is a violation of CAT, which prohibits torture and other cruel, inhumane, and degrading treatment. Additionally, notion that death penalty is illegal and in violation of Art. 1 and 16 of the CAT is developing as a part of customary international law. In 2007, the lethal injections mechanism was put on hold in several US states to scrutinize the process. In 2005, Lancet, a British Medical Journal, found serious mistakes in the way lethal injections were being administered and found out that in forty-three percent of the cases, the anaesthetic levels were so low that the subjects were almost in a conscious state when being administered these injections.

Finally, the death penalty is discriminatory in its application. Across the world, discrimination runs through the administration process of the death penalty. In some countries, discrimination occurs on basis of class, while some countries have discrimination on the basis of race. In the United States, African Americans are sentenced to the death penalty at a rate significantly higher than the white Americans. Additionally, those who kill white people are given the death penalty at a significantly higher rate than those who kill African Americans. According to a study by David Baldus from Iowa State University, in Georgia in the 1980s, the death penalty was sought for seventy percent of African American defendants with white victims, while only for fifteen percent of white defendants with African American victims. Though African Americans constitute about fifty percent of victims year after year, only in fourteen percent of the cases where the victims were African Americans was the death penalty administered, compared to eighty percent of the cases where there were white victims.

Restorative Justice as an Alternative Model

 As an alternative to capital punishment, states should consider restorative justice as a model for criminal justice reform. The basic aim of punishment should be to reform and reinstate devious element of the state. The purpose is not to end the criminal but the crime. Criminals need to be reformed and not killed. Rather than using the death penalty as a tool of retributive justice, society should move to the restorative justice model, which advocates for repairing the harm caused or inflicted by the criminal behavior. This form of justice is achieved by cooperative mechanisms involving all stakeholders. The aim of restorative justice is to identify the harm and take steps to redress the harm rather than punishing the criminal. This is based on the theory of justice which considers harm to be a wrong against the individual or community and not the state. John Braithwite defined restorative justice as:

 …a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.

Howar Zehr distinguishes restorative justice from traditional criminal justice by saying that the former asks the following questions: “Who has been hurt? What are their needs?, Whose obligations are these?, What are the causes?, Who has a stake in the situation?, What is the appropriate process to involve stakeholders in an effort to address causes and put things right?” while the latter relies on three primary questions, namely: “What laws have been broken? Who did it? What do the offender(s) deserve?”

There are three primary models associated with restorative justice: victim offender conference, family conferences and circle approaches. Similar in the basic outline and objectives, the models differ in the mechanism of facilitation, and the number and category of the participants.

Victim Offender Conferences (VOC) are primarily held between the victim and the offender. After being referred and obtaining the consent of both parties, these conferences proceed. These conferences are facilitated by trained personnel who guide the process in a skilled and balanced manner. Second, Family Group Conferences (FGC) extend the participants who can take part in the meetings. In these conferences, the family of the offender is especially encouraged to participate, as this model requires the offender to realize his mistake, take responsibility for it, and then alter his behaviour. The presence of his/her family has a very important role in supporting him through this process. The victim’s family is also encouraged to support the victim. Legal personnel, including police officers, are generally present at the FGC meetings, particular ones determining the legal outcome of the case.

Finally, in the Circles Approach, participants are comparatively more involved than the above two models. The participants sit in a circle and a piece of paper known as a “talking paper” is passed around. Paticipants speak in the order delineated on the paper. One or two people in the circle serve as “circle facilitators” who facilitate the discussions and encourage people to speak and assist the offenders to admit their mistake, take responsibility for it, take measures to provide comfort to the victim and his family, and subsequently take steps to redress the harm. In this approach, apart from the victim, offender, and their families, the community members are encouraged to participate.

The restorative model aims to achieve the following three objectives: acknowledgement of the wrong or injustice, restoring the equity, and addressing future intentions. Rather than punishing the criminal, this approach focused on repairing the harm, helping to victim or his family, and reforming the criminal. It has various benefits for the victim, namely giving the victim or his family a chance to be heard, having a voice in meaningful accountability for the offender, expressing their feelings and impact of the harm, and asking questions and seeking relevant information that can assist them in healing and closure. It also helps the offender to take on the challenging but important task of taking responsibility, experiencing and expressing genuine remorse, making amends, and working towards the goal of providing comfort to their victims or their families. Further, the process has numerous benefits of its own, namely: it focuses on redressing the harm and reforming the criminal rather than punishing him, it helps the parties involved to understand each other’s situation and work together toward the justice sought but not mandated, and it is based on accountability and repairing the harm.

As the above description indicates, restorative justice can serve as a strong counterweight to retributive justice models in the face of crimes, even heinous ones. Returning, then, to the issue of capital punishment, and keeping all the above arguments and international instruments in mind, in the interest of civilized society and its obligation to reform its devious elements, the death penalty should be abolished as a violation of CAT and an aberration of justice. Instead, society should move to a more restorative form of justice, which can help heal the victim, the criminal, and society at large.

Jitesh Dudani is an LL.M. candidate at Berkeley Law.  He is a student contributor to Travaux.

No Compromise: Drug Crimes and the Death Penalty in Indonesia

By: Liana Solot

Brazilian citizen Marco Archer Cardoso Moreira, fifty-three years old, was executed by firing squad on January 17, 2015 in Indonesia, along with five others, all of who were convicted of drug trafficking—all but one were foreigners. Moreira was convicted and sentenced to death for smuggling cocaine in 2004. Despite the many cries and attempts by the Brazilian government to start a dialogue with the Indonesian government, Moreira became the first Brazilian citizen to be executed abroad. Moreira’s lawyer said that Indonesia denied requests to extradite Moreira to allow him to serve a prison sentence in Brazil, since capital punishment is not permitted under Brazilian law.

Indonesia has extremely strict drug laws and the new government has a firm commitment to fight drug-related crimes. Attorney General Muhammad Prasetyo stated that these laws are “merely aimed at protecting their nation from the danger of drugs” as forty to fifty people die each day from drugs in the country. According to a report submitted to the UN Human Rights Committee by Indonesia in 2012, “[t]he issue of death penalty, as part of Indonesian Penal System, has been subject of robust debates among various groups in the community.” In 2007, the Constitutional Court conducted a constitutional review of the death penalty law and held that the death penalty provision in Law No. 22 of 1997 on Narcotics was not contradictory to the 1945 Constitution. Thus, the provision was maintained.   Further, Indonesian President Joko Widodo recently said, “We are not going to compromise for drug dealers. No compromise. No compromise.”

Brazilian President Dilma Rousseff personally appealed to President Widodo to spare the life of Moreira, but the Indonesian president was not moved by the case. He believes that the executions are an “important shock therapy” in his country’s fight against illegal drugs, and rejected any cries for clemency despite additional pleas from the European Union, Australia, and Amnesty International. President Rousseff was outraged that the sentence was carried out, according to an official statement from her press office. Along with Moreira, the execution of Dutch citizen Ang Kiem Soei on the same weekend incited an indignant diplomatic reaction: Brazil and the Netherlands withdrew their ambassadors from Indonesia.

International Law Standards of Treatment and Diplomatic Protection

In addition to being one of the top social network discussions for weeks in Brazil, this case raised important and controversial international law and human rights questions. Under international law, there are two perspectives of how a country should treat foreigners in its territory. One is that, according to the principle of equality, a host government should, within recognized limits, treat aliens in the same way as it would treat its own nationals. Another view is that there is an international minimum standard of treatment that needs to be respected; a threshold below which no civilized nation should cross. However, this remains deeply controversial: an individual who lives in a foreign country is expected to abide by the laws of the host State, yet, when that person is injured, she is free to seek diplomatic protection from her State of nationality. So should foreigners be entitled to the “best of both worlds”? Should they be treated equally when travelling or conducting businesses in a foreign country, but when adverse events occur, should they be entitled to special protection?

In this case, considering the global tendency against the death penalty and the growing consensus among UN members that it should not be enforced, especially for drug-related crimes, it can be argued that imposing the death penalty on foreigners violates the international minimum standard of treatment. And, under the system of diplomatic protection, the individual must first exhaust the mechanisms available in the state where he was injured before seeking an international remedy, in which his country of citizenship then decides whether to espouse his case. In this case, however, the methods for internal recourse were exhausted, Moreira was entitled to due process, and, despite diplomatic dialogue attempts by the Brazilian government, international bodies do not have jurisdiction to intervene in the sovereign state. Thus, while it seems that the international minimum standard of treatment might have been violated, Brazil cannot, under the system of diplomatic protection, intervene in the criminal proceedings.

Human Rights Treaties and the Death Penalty in Indonesia

In spite of numerous treaties, universal human rights standards are precarious when it comes to their incorporation into domestic legal system: countries will recognize international legal duties only to a comfortable limit. Human Rights organizations in Brazil, like Conectas Direitos Humanos, vigorously condemned the execution. The main argument is that Indonesia has signed and ratified a series of international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which provides that the death penalty can only be enforced for “the most serious crimes”. Crimes that typically qualify include those that result in death or serious bodily harm. The Office of the High Commissioner of Human Rights (OHCHR) spokesperson, Ravina Shamdasani, stated, “According to international human rights jurisprudence, capital punishment could only be applied to the crime of murder or intentional killing.” Further, UN Secretary-General Ban Ki-moon has stated that “the death penalty has no place in the 21st century”, which reflects a global human rights trend away from capital punishment.

According to Human Rights Watch, President Widodo wasted an opportunity to demonstrate wise leadership by joining the growing number of countries that have abolished capital punishment and considered its application in drug-trafficking offenses “particularly odious”. Executive Director of Amnesty International Brazil, Mr. Atila Roque, agreeing with Human Rights Watch, said, “Indonesia takes a huge retrograde step for human rights. The death penalty violates human dignity, degrades justice and moves closer to a state of savagery”.

On the other hand, Moreira and the other prisoners cannot be seen as innocent victims. They knew of the risks ex ante, knew they were committing a very serious crime under the laws of that country, and, even then, decided to take the risk, blatantly disrespecting the laws of that country. According to an official statement by President Widodo’s government, “Indonesia is a sovereign State, with an impartial and independent judicial system, and no foreign State can intervene in the enforcement of its laws within its jurisdiction, including the enforcement of laws regarding drug trafficking.” Indonesia’s foreign minister said that the executions are not meant to single out the citizens of a particular country, “the issue is purely law enforcement by a sovereign country.”

There is no question that Moreira and the other foreigners committed severe crimes and should be punished, however, the proportionality of that punishment is debatable. If a State is a member of the UN and has signed and ratified an international treaty that prohibits capital punishments, except for the most serious crimes, and, if drug trafficking is not included in that list, it would be a violation of its obligations under international law. Indeed, the UN Human Rights Committee’s 2013 report on Indonesia regretted that death sentences are still imposed by courts for drug crimes, which do not meet the threshold of the “most serious crimes” and recommends that the State party should consider abolishing the death penalty or, if it is maintained, Indonesia should “review its legislation to ensure that crimes involving narcotics are not amenable to the death penalty.”

As is usually the case with international law, the constant challenge is how to enforce norms universally, considering different cultures, values, and domestic legal systems. The death penalty is considered a proportional punishment for drug trafficking in Indonesia and other countries; the same punishment can only be enforced in other countries for the crime of murder or intentional killing, while other nations have abolished capital punishment entirely or expressly forbid it under their domestic constitutions. Accommodating such disparate domestic legal systems seems impossible, but a UN member state that agrees to an international law treaty is expected to respect its provisions. According to ICCPR Article 41, Brazil could bring a request to the UN to investigate the human rights practices of Indonesia, who is also a State party, yet this procedure has never been actually invoked as a human rights enforcement mechanism. In addition, the ICCPR’s 1976 Optional Protocol allows individuals to directly file human rights complaints with the UN Human Rights Committee and the second Optional Protocol in 1996 aims specifically at the abolition of the death penalty. However, although Indonesia became a state party to the ICCPR in 2006, the country did not sign or ratify the first or the second optional protocols, allowing no such recourse for Moreira or the other convicted individuals.

More Executions Postponed, For Now

Aside from Moreira, a second Brazilian citizen, Rodrigo Gularte, convicted for smuggling cocaine in surfboard bags in 2004, is among a second group of eleven prisoners on death row to be executed soon in Indonesia. Due to diplomatic pressure, especially from Brazil and Australia, the executions have been postponed, but officials say the delay is only temporary. Adding an additional layer of complexity to the situation, Gularte has been diagnosed as mentally ill and, under Article 44 of the Indonesian penal code, a person who has a mental disorder cannot be criminally liable. However, further medical examinations are being conducted and the final decision is still uncertain. This tension has placed bilateral relations on hold and may affect international trade between the two countries. The next diplomatic measures remain to be seen in the coming weeks, while the enforcement and adherence to international law standards remains uncertain in the near future.

Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.