Happy 20th Birthday for the 2nd Optional Protocol

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty is a side agreement to the International Covenant on Civil and Political Rights. The Optional Protocol commits its members to the abolition of the death penalty within their borders.

UN High Commissioner for Human Rights Navi Pillay said in a statement that she "would like to take this opportunity to congratulate all those States that have abolished the death penalty...While the death penalty remains legal under international law in limited circumstances, there is, as the Optional Protocol notes, a strong suggestion in international law that the total abolition of the death penalty is desirable...I urge those States still employing the death penalty to place a formal moratorium on its use, with the aim of ultimately ratifying the Optional Protocol and abolishing the punishment altogether everywhere."

Quote of the day:

These bloody days have broken my heart.
My lust, my youth did them depart,
And blind desire of estate.
Who hastes to climb seeks to revert.
Of truth, circa Regna tonat. (It thunders through the realms)

- Thomas Wyatt (After witnessing the execution of Anne Boleyn in the Tower of London)

In The News - October

It's been a wild few months on death row. You've got both sides of the debate chewing heads over the Todd Willingham case (see earlier blog entry), Texas Governor Rick Perry desperately trying to avoid the fallout, Dr. Craig Beyler report receiving a withering amount of praise and criticism,  Judge Sharon (Killer) Keller under professional review (see below) and Japan's death row is under serious scrutiny. At home in Australia, there is an anti-death penalty rally in Melbourne, Herald Sun readers call for death penalty to return to Victoria and, finally, a man who escaped the gallows forty years ago when Victoria abolished the death penalty has murdered again.

Willingham - Executed & Innocent?

There's been an interesting twist in the Willingham case as both sides of the debate become even more entrenched. The new chairman who was appointed by Gov. Perry has indefinitely postponed the review of Dr. Beyler's report on the fire forensics used at trial. It seems that the new chairman, John Bradley, a close colleague of Perry and a prominent conservative has been assigned to either shut down the review or make a finding that is favourable to the Governor. Bradley's words, as pointed out in the blog entry, even wreek of foul intention, "It is my experience that leadership is best applied to moving forward rather than looking back". Does this imply that he is planning to ignore the Willingham case and look only to the future of reforming archaic fire science? It's hard to say for sure but if this review doesn't take place before Gubernatorial election coming up next year in Texas then I think it speaks for itself.

It's tragic that a claim of innocence has been boiled down to pure politics. It reflects terribly on the death penalty in Texas and has done tremendous damage to public confidence. Perry has come out of this little foray looking like a dissembling weasel.

It's also worth mentioning that there has been alot of criticism of Beyler. The fact that he used Willingham's statements to police even though his statement was contradicted by the findings after the fire. There's certainly alot of misinformation flying about from both sides. There are Willingham sympathisers who claim that Beyler's report rejects arson as the cause of the fire. However, the report wasn't able to categorically count out that it was arson, however it was unable to prove that it was arson. As far as a legal standard goes, this is enough to create reasonable doubt.

On appeal after conviction it's not necessary to prove innocence beyond reasonable doubt, merely to show that a reasonable jury, properly instructed, considering the new evidence could not find the defendant guilty beyond reasonable doubt.

Is it possible to find a man guilty of arson without having ironclad proof that the fire was deliberately lit? Perhaps with exceptionally pursuasive circumstantial evidence. In this case, however, all we are looking at is evidence of inconsistent statements by Willingham, witness statements that claim he was acting strangely outside the fire (many of which were later recanted) and a psychologists report that claims he is a sociopath because he listens to Iron Maiden, has their posters on his wall and has violent tattoos.

Satisfactory? Not on your life.

What's going to happen next? It's impossible to say but I'll be sure to update as soon as there has been any kind of developments.

Japan Death Row in Tatters

After Amnesty International released a report stating that death row inmates in Japan were languishing in isolated and inhumane conditions and that they had were suffering from terrible psychological illness due to the stress of their present conditions and the uncertainty of their future. The report also condemned the secrecy surrounding the system which executed 15 inmates last year, the highest in three decades. The report coincided with the appointment of a new justice minister Keiko Chiba, an outspoken death penalty critic and member of the Parliamentary League for the Abolition of the Death Penalty. Without directly stating she would not sign death warrants, it seems quite clear that there will now be an effective halt to executions.

This, however, is no consolation to the 102 left lingering on death row with even more uncertainty as to their fate. Hopefully Chiba can put into action a process for the abolition of the death penalty but seeing as 80% of the population of Japan support it, this would be a hard fight. Perhaps simply removing the veil of secrecy from the system would open the eyes of many Japanese to the injustices that are occuring.

Melbourne Rally Against Death Penalty

On 10 October 2009, the seventh World Day Against the Death Penalty, Melbournians marched against the barbaric practice of state sanctioned killings all around the world. Speaking to the rally was Melbourne lawyer Julian McMahon who worked alongside Lex Lasry in support of Van Nguyen and who is the lawyer for Myuran Sukumaran and Andrew Chan, convicted drug traffickers who are on death row in bali. It's great to see Julian still campaigning so stalwartly fighting the good fight. Having assisted Julian on both Van and the Bali 9 cases I know how tirelessly he works and how committed he is to the cause.
I wish I could have been there for the march but I'll just have to wait for lucky number eight!

"Execution is premeditated, ritualised, state-sanctioned violence by brutalised societies. There is no crime no matter how terrible that could not be properly punished by decades in a cell."

Herald Sun Readers: Bring Back DP After Man Escapes Gallows and Murders Again

So the Herald Sun conducted a poll in early October asking whether or not Victoria should bring back the death penalty. To be honest, the issue is moot as the Australian government has an international obligation since ratifying the 2nd Optional Protocol to not only seek the abolition of the death penalty worldwide, but to put in place laws that will block the death penalty from every returning, no matter what government is in power.

The result was no surprise. Almost 80% supported the death penalty being reintroduced, and this can be explained by the context in which the poll was taken.

In 1968 Leigh Robinson was sentenced to death by hanging in Victoria for the stabbing murder of his ex-girlfriend, Valerie Dunn in her home in Chadstone. Upon the abolition of the death penalty in Victoria his sentence was commuted to the 20 year maximum that murder carries. He was then paroled and released only to murder again. Tracey Greenbury was his second victim and he has now been convicted of the crime and sentenced.

This guy is a real piece of work. During his cross examination he called the victim a "silly bitch" and said that he was just trying to help her up some steps when she slipped and his shotgun offloaded into her head accidently. Here's part of his testimony before the court:

"She started to fall and stumble and I went to grab her and all of a sudden, yeah, and that's why I'm standing here... One hell of a friggin' bang … [and I] packed me dacks and turned around and left."

I've said it before. I think that preventing recidivism is one of the most perverse reasons for supporting the death penalty. Killing someone for a perceived future crime they may or may not commit is not only foolishly misguided but also a complete rejection of the principles of the justice system, and that is reformation. Losing complete faith in the human spirit is the first step towards becoming incredibly cruel and unforgiving towards those in society who are most in need of serious help and understanding. We need to work out how the system failed both Robinson and Tracey Greenbury rather than wishing we had just killed him to begin with. As I have said before, this Stalinesque approach of "no man, no problem" is totally inhuman.

Forced Perspective

It's hard to see the big picture sometimes. For a long time this was just a building that, while at first totally alien, is now comfortingly familiar. In a quiet area in The Hague, nestled between the city centre and the beach, the ICTY is the home of so much more than meets the eye.

The trial of Radovan Karadzic towards which I have been working the past 4 months has finally started. The sense of a massive undertaking was palpable the moment that Judge Kwon asked Prosecutor Alan Tieger to start his opening statement. I have worked on many different elements of this case. Some things are shocking and confronting, for certain, but these occur in small, relatively out of context tasks. Perhaps I find myself working on organising evidence for trial and come across something incredibly graphic. It's easy to compartmentalise and disassociate yourself from what you're seeing. When Mr. Tieger started to summarise clearly and concisely the many different elements and facts of the case that had once been a jumbled mess of information in my head it suddenly became so clear. It's almost like I had the knowledge of the case by not the understanding to put the many pieces together. He told the story of Radovan Karadzic as I knew it but had never heard it. Parts of the story seemed so familiar but I had never put them into context. Yes, Sarajevo was shelled and sniped for 44 months, Srebrenica was taken over and thousands were executed, hundreds of thousands of people were displaced and thousands killed during the process. Karadzic stood astride all of these atrocities as the Supreme Commander of the Bosnian Serb forces.

Was this destruction and death just a product of war? No, it was the purpose of the war.

"[He] harnessed the forces of nationalism, hatred and fear to implement his vision of an ethnically separated Bosnia."

It was an amazing opening statement, and it's not over yet (there is still one more day to go). But this isn't what really opened my eyes. This made the facts of the case more clear. Something else made this new clarity that much more real. I suppose months of working on esoteric elements of trial preparation can very quickly skew your perspective of exactly what you are working towards. Yesterday things were very clearly brought into focus.

It's not so much the fact that the building was surrounded by media. It's not the fact that it appears on every major news syndicate. All of these things are relatively straight forward and to be expected. This is a massive trial that spans over years of violent history in Europe, specifically the Balkans. No, it's the presence of the victims.

The ICTY is unique international court in the sense that it is completely divorced from its context. The crimes were committed in the battle torn Balkans, yet the trial takes place in the placid city of the Hague. Compare this to the ICTR or the SCSL, both which exist, for the most part, in the places where these crimes occured. The purpose behind this are clear. Where the crimes occured is also where you will find the people who were affected. It's important for victims to feel that they are represented, especially if any kind of post war reconciliation is to be achieved. If you leave work from the ICTR in Arusha, Tanzania you are surrounded by people who fled Rwanda during the genocide. Everyday you would be mingling in with communities that have been destroyed by the civil war.

The viewing gallery was completely filled up by media and diplomats from various countries. This meant that every employee watched the beginning of the trial streaming live on their computers. Some people even brought their friends into the office to watch it as well. Everyone, no matter what case they were on, was watching Courtroom 1 and the opening statement against Radovan Karadzic. But the difference that I felt most keenly was that of the Srebrenica wives and daughters. They filed through the corridor and in to the conference room just outside my office. There, just like the rest of us, they watched the trial start. To me it was a moment where all the facts came together in a neat package, for victims it was so much more than that, it was a truth that has tortured them for 14 years. And there they all sat, more than 50, all seated in one large room watching the proceedings that had such an incredible personal significance to them. Wives and daughters who had, in some cases, lost most of the men in their family and had been forced to raise the decimated families in an unforgiving warzone. Solemn respect doesn't even begin to qualify the feelings that come from encountering people who have suffered through so much. The few times I would pass them in the hallway was strange at first. They knew everything about this conflict from intimate personal experience but so little about what goes on at the tribunal. To me I know nothing about what these people really went though during the war, but I know exactly how this tribunal operates from day to day. As some of them filed passed our office on their way out of the building, after watching the opening statement, they would peek their heads into the office and with a gentle smile and say thankyou.

Everyone at this tribunal is here to do justice for the people of the former Yugoslavia, but sometimes you need to be reminded, especially when Bosnia feels so far away from the Hague. Sometimes you need to step back from the specific and finicky legal, administrative and procedural issues and realise that this story is a tragically real one for a huge amount of people. Sometimes certain things need to force your perspective towards the most important reason behind these trials, the victims.

Quote of the day:

"Power is the relation of a given person to other persons, in which the more this person expresses opinions, theories and justifications of the collective action the less is his participation in that action."

- War & Peace by Leo Tolstoy

Innocent and Executed

With every passing week it is becoming increasingly clear that an innocent man was executed in Texas on 17 Feb, 2004.

The New Yorker published an article in September (It's quite lengthy!) outlining the case in all its excruciating detail. To summarise it briefly, Todd Willingham was charged with the murder of his three children by deliberating setting fire to the family home on 23 Dec, 1991 . The case against him was a mix of witness testimony, psychological examinations and, of course, arson forensics. The witnesses stated that Willingham appeared calm outside the front of his house as it burned down and didn't seem to make any attempt to rescuse his children from the house. The psychologists stated that he was a man with violent tendencies and a disturbed mind due to his graphic tattoos and interest in explicit and violent music. However, the most damning of all the evidence was that of the forensic arsonist. What he explained is all very techinical, but suffice to say he found evidence that fuel had been poured around the childrens bedroom, essentially turning the room into a death trap, while making it easy for Willingham to escape.

He was found guilty and sentenced to die.

Even before Willingham was executed almost all of the witnesses recanted their testimony. Most of them stating that Willingham was indeed extremely distressed and had to be physically restrained by firemen to stop him from reentering the house. The psychologist was completely discredited and turned out to be a close friend of the prosecutor. But the most important element is the forensic evidence. A prominent fire expert reexamined the evidence brought against Willingham at trial and was shocked at just how archaic the methodology was. Dr. Craig Beyler prepared a report (found here). Dr. Beyler found that the methods were similar to that of a "mystic or psychic" and were completely without merit or understanding of fire analysis.

As if all the dysfunctional elements of the Texas justice system were coaelscing into one tragic event, Sharon "Killer" Keller (see below) was the judge presiding in Willingham's final Habeas appeal to the Texas Court of Appeal. She refused the compelling claims of innocence.

This is the kind of morbid holy grail that anti-death penalty supporters have been waiting for.

At the moment Governor Rick Perry has appointed a panel of experts to examine the fire and the scientific methodology used at trial. However there have been further scandals regarding Rick Perry's attempt to cover up the whole issue. Three members, including the chairman, were removed three days before they were meant to review the expert report that refutes the fire being arson. The officials have stated that they were met with representatives of Rick Perry's and were pressured and influenced. It's all very political and hard to pin down with any certainty, but one thing is for sure, and that's the fact that something is seriously out of whack.

Perhaps the saddest element of this entire case is that the truly callous and cruel amongst those who support the death penalty are coming out of the woodwork. It's as if, once sentenced to death, you must be proved innocent beyond reasonable doubt. This simply isn't the case and it is only necessary to present that there was clearly reasonable doubt and that no charge of arson could possibly be upheld. It seems that death penalty supporters are more frustrated than horrified with this present situation. They would rather innocent people weren't executed so that they didn't have to explain it away.

For me, the execution of an innocent man is an incredible tragedy and one that can never be rectified. However, the potential for innocent victims has never played an important role in my opposition to the death penalty. The issue goes far deeper than the fact that the death penalty could execute an innocent person. The death penalty is far too indiscriminate with the pain and suffering it imposes on those caught in its mechanisms. It's an act of intolerable cruelty to the victim's family, the condemned's family, the jurors and the society that witnesses a state sanctioned execution. For as long as we hold on to nothing else but the fear that innocent people will be executed as our founding principles for opposing this barbaric practice, we are tacitly supporting the death penalty in situations where there is no doubt as to a man's guilt.

What is so crucially important about this case is seeing that the state of Texas is forced to pay the price of confronting the truth. I have no doubt that the very foundations of the death penalty will be uprooted if the innocence of Todd Willingham is found to be finally irrefutable. What is it going to take for this conclusion to be reached? Probably alot of politics, dirty fighting and nitpicking, but I have no doubt that in the long run this institution of death in Texas and the U.S. will suffer a mortal wound from which it won't ever recover.

Quote of the day:

"The only statement I want to make is that I'm an innocent man - convicted of a crime I did not commit."
- Cameron Todd Willingham's last words

"Last Suppers" - An Artistic Perspective

The macabre tradition of allowing a condemned man to choose his last meal is as fascinating as it is bizarre. The idea of one show of mercy or compassion before an act of intolerable cruelty creates a sad and complex dichotomy, but it is one that is employed in nearly every instance where the death penalty is used. It's difficult to pin down any definite reason behind why this tradition still exists, but it is certainly deeply rooted in history. There's no doubt that it is intended as an act of compassion, one that is meant to comfort both the condemned man and to appease the conscience of the executioner. It almost seems that by accepting this act of generosity the condmned man is absolving the executioners by accepting the act of generosity.

An artist by the name of James Reynolds from Kingston University has researched "last supper" requests from men on death row, and photographed them on a standard prison issue tray. He has not stated any political or moral point of view, it is purely for your own interpretation. What do you make of it? Here are my thoughts -

The sentiments that accompany the imagining of ones last moments before being executed, to me, is a sort of foray into an emotional abyss. Like that existential feeling that envelopes you when you stare at the stars for hours on end, totally overwhelmed by the infinite universe right before your eyes, but at the same time so totally aware of your own mortality and insignificance. Would this meal actually give them any comfort at all? Would you even be able to contemplate eating? I lose my appetite simply imagining the situation. How consumed you would be with the thought of your fast approaching death. Imagining the final steps towards the gallows, imagining the shock of coming in to full view of the place of execution, the helplessness upon being blindfolded and shackled. All of these imaginings are tortures that act as a sort of prolonged execution for the accused. It's almost like the hands of death are reaching back through time and grasping at your conscious, pulling you towards it long before your time has come. This extended suffering is cruel beyond all measure.

I've talked about the suffering experienced by those close to someone who is executed. The best way to get any sort of idea on the suffering that must be experienced by a condemned person on death row is from people who experienced it themselves and have survived due to exoneration or a permanent reprieve.

Sakai Menda, a Japanese man who spent 34 years on death row in Japan, put it in this way:

"It’s strange when they near your cell. You lose all your strength and you are like this. You lose all your strength as if a rope is dragging it out of you. Then the footsteps stop in front of another solitary confinement cell and when you hear the sound of the key turning you feel relieved." 

It's particularly topical considering that at the moment the system of capital punishment in Japan is under scrutiny at the moment as inmates languish on death row and their mental state is seriously deteriorating. What a perfect example of the incredible tortures that one undergoes in such a situation.

Darby Tillis was sentenced to death and eventually exonerated, and described his time on death row as such:

"Whether a death sentence is carried out in six minutes, six weeks or six years, the person set for death begins to suffer the most cruel, inhuman and degrading treatment and punishment. Death row is segregated from the rest of the general inmate prison population. You’re warehoused for death, treated like contaminated meat to be disposed of. You sit there and await death, and the pain you know will come to you one day" 

As I said earlier, if accepting a last meal is an act of tacit forgiveness from the condemned man towards his executioner, then clearly some of the accused use this gesture to make a statement that speaks louder than words.

  

Taking the time to really appreciate the meaning behind these photos would no doubt reveal different meanings to different people. To me it's an image of loneliness and of humanity. Our need to eat in order to survive is an instinct we all share, even with a man who is condemned to die. But in this situation you have a person with no hope of surviving more than a day, yet set before them is a meal, a last supper. As vulnerable and as human as the rest of us. The uniformity of the orange tray, and the symetrical arrangement of the food seems to represent the organised, cold and calculating process that is the death penalty. Humanity and inhumanity, or man's inhumanity to man. It's an incredibly powerful juxtaposition that, to me, throws away considerations of justice, right or wrong, and leaves you with a person who you cannot dismiss as an "aberration" or a "monster".

Quotes of the day: (A special double feature. One in memory of the late Ted Kennedy.

"My brother was a man of love and sentiment and compassion. He would not have wanted his death to be cause for the taking of another life."

- Edward Kennedy

"I prayed in the morning I would be able to sleep at night, I prayed at night I would be able to wake up in the morning."

- Ronaldo Cruz (Wrongfully convicted in 1983 and sentenced to death. Exonerated by DNA evidence)

Fighting For Peace

The difficulties of intervention in international conflicts is one of the most complex issues of International Humanitarian Law. When is it justified to intervene in a conflict? What kind of peace keeping activities are justified? How do you solidify peace between two warring parties without seeming partisan to one cause?

These questions are constantly undergoing intense debate and discussion, but the real question I'm interested in is how a massacre like Srebrenica can be allowed to occur while the eyes of the entire world rest on the Balkans?

In the case of the conflict in Bosnia it's incredibly challenging. The United Nations were the envoys of peace and inserted thousands of UN Protection Forces (UNPROFOR) into Bosnia to regulate and observe the conflict from the ground. While behind the UN was NATO, the big stick that could be waved in situations of non-compliance with UN sanctions.

In the case of Srebrenica the UNPROFOR were drastically under prepared for imposing any kind of influence over the Serbian troops that lay siege to it. To make matters worse, Bosnian government troops organised attacks and rallied within the "safe zone" of Srebrenica.

Srebrenica wasn't at all safe, infact it was being actively used as a military base for Bosnian troops, and at the same time the UN troops who were protecting the enclave were lightly armed with no mandate to protect with force. So when the Serbian troops overran Srebrenica it's no surprise that the UNPROFOR could do nothing to stop them. It reminds me of a quote from the book Emergency Sex, "If blue-helmeted U.N. peacekeepers show up in your town or village, and offer to protect you, run."

The frustration that must have been felt by the Dutch troops who were helpless to stop the ensuing chaos. Frustration towards the Bosnian troops commanded by Naser Oric who constantly flouted the town's status as a safe haven.

There's no doubt that the situation in Srebrenica was complex. The UN had not secured the safe zone effectively, they were unable and unequipped to defend it, the Bosnian troops continued to launch attacks from within it and the Serbian troops lost patience and made a move on the town. Does this justify or excuse the mass execution of thousands of Bosnian Muslim men and boys? It's hard to believe, but there are those who defend the actions of the Serbian forces, excuse those in command of them, and even go so far as to deny the genocide ever occured. Arguments are plentiful for denying any genocide occured. A column of Bosnian troops continued fighting around Srebrenica as they retreated after the town was taken. In other words, the men who died in Srebrenica were legitimately killed during the fighting. That the numbers were greatly exaggerated by people who simply went missing in the chaos and were never killed. That the few mass killings were undertaken by out of control militants with no affiliation to the Serbian (VRS) forces.

The facts remain, and shine through all the misinformation. Bodies were found ligatured, blindfolded and horrifically beaten. Bullets were traced back to the guns of Serbian troops. DNA identified thousands of unique individuals. Mass graves were dug quickly and concealed. The tragic list of facts goes on and on. If to forget a genocide is to "kill twice", as Elie Wiesel put it, then to deny its occurence is to kill ad infinitum.

It's not in the international communities interests to fabricate this atrocity. So much blame falls on those in a position to stop the genocide. If no genocide had occured, the use of force by UN and NATO forces would have seemed utterly disproportionate. Afterall, there were so many opportunities to stop the catastrophe from occuring, but it's easy to see the right answer to such decisions in hindsight. Making decisive decision in a warzone that are intended to maintain peace must be a nearly impossible situation. Romeo Dallaire writes about his experience of helplessness in Rwanda in his book "Shake Hands with the Devil", which I have every intention to read as soon as I get my hands on it.

How is it that so many can be murdered while the international community watches? It would seem that the confusion of warfare can muddy the waters to such an extent that almost anything can be concealed in the fog of war.

Because of all this uncertainty, because the whole war was a mess of deeply rooted political, social and economic problems, it seems to be possible for people to say, with a straight face, "Perhaps Srebrenica wasn't really a genocide". Some revisionist historians still deny or lessen the scale of the Holocaust, even though this position usually makes them a historical pariah. Is it more acceptable to cast doubt on Srebrenica because of all the "fog" that surrounds the war, or perhaps because it wasn't on the same scale? For certain the crimes weren't as black and white as can be found in the Holocaust, and it is no where near the same scale. But the test for genocide is not a comparative test with the Holocaust. The Rome Statute defines it as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group."

In 2004 the ICTY Appeals Chamber ruled in the Krstic case that the Srebrenica massacre was genocide. There has to be some point where, much like the Holocaust, it becomes insensitive and unnescessary to still question the merits of this decision. Like flogging a dead horse, only this horse can be replaced by millions of people who are still very closely affected by the massacre. Misinformation and doubt are core elements of warfare, and so black and white, right and wrong, are always difficult concepts in International Humanitarian Law.

Quote of the day:

"There is a loneliness about peacekeeping, especially when it is divorced from peacemaking."

In The News - Aug/Sep

So it appears the the Sri Lankan President has announced that the death penalty will start being enforced again. This is a country that had the death penalty but refrained from using it since 1977. As the BBC put it so eloquently in french, it has been in abeyance! Oh la la.

Now due to a spate of violent crimes in a seemingly rapid decline into lawlessness, the support for reigniting capital punishment is growing. This is particularly interesting given the prominance of Budhism in Sri Lanka.

This came to my attention through a Sri Lankan publication I've never even heard of before called The Island. The opinion piece is quite astounding and as I read it I felt compelled to comment on it.

The piece starts with a quote from Oscar Wilde, and this is what really caught my eye.

"He has killed so he deserves to die."

Does Mr. Dunusinghe, the author, even realise the irony of using this quote to begin an article entitled "Bringing back the hangman". For those who aren't familiar, this is a quote taken directly from Wilde's "The Ballad of Reading Gaol", which I have quoted in this blog in the past. Infact, the small stanza was one of the "Quotes of the day". If that doesn't raise some alarm bells, let me give you a little bit of history behind this Ballad. It was written by Wilde after he was imprisoned in Reading Gaol for committing the crime of "gross indecency" which was a lesser crime than "buggery". It was widely believed that he was either homosexual or bisexual. During his time in prison he felt the impact of an inmate being hanged for murder. Upon his release, while in exile, he wrote the ballad. The relatively long piece goes on in detail about the horrifying experience of a man condemned to die. The waiting, the certainty, the cold and calculated mechanism that is official murder. In two words, Albert Camus' "implacable ritual".

Other than the one I previously quoted, here is a section of it more directly related to the issue:

He does not die a death of shame
On a day of dark disgrace,
Nor have a noose about his neck,
Nor a cloth upon his face,
Nor drop feet foremost through the floor
Into an empty place

He does not sit with silent men
Who watch him night and day;
Who watch him when he tries to weep,
And when he tries to pray;
Who watch him lest himself should rob
The prison of its prey.

He does not wake at dawn to see
Dread figures throng his room,
The shivering Chaplain robed in white,
The Sheriff stern with gloom,
And the Governor all in shiny black,
With the yellow face of Doom.

He does not rise in piteous haste
To put on convict-clothes,
While some coarse-mouthed Doctor gloats, and notes
Each new and nerve-twitched pose,
Fingering a watch whose little ticks
Are like horrible hammer-blows.

He does not know that sickening thirst
That sands one's throat, before
The hangman with his gardener's gloves
Slips through the padded door,
And binds one with three leathern thongs,
That the throat may thirst no more.

Quoting it in an article that is pro-death penalty would no doubt make him roll in his grave (see grave above). It's a beautiful piece of writing which is quite complex and relates heavily to Wilde's experience in prison.

Dostoevsky puts it:

"But the chief and worst pain may not be in the bodily suffering but in one's not knowing for certain that in an hour, and then now, at the very moment, the soul will leave the body and that one will cease to be a man and that that's bound to happen; the worst part of it is that it's certain ... To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood or something of that sort, must surely hope to escape till the very last minute ..., but in the other case (execution) all that last hope which makes dying ten times as easy is taken away for certain. There is the sentence, and the whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible."

This is quite poignant also given the topic of the article. What is the point of having a death sentence that is not in use? Since 1977 people have been sentenced to death, have had to suffer the uncertainty of their fate, only to be pardoned by the President.

It has been an issue I have discussed quite often, the effect of the death penalty on those who are left to languish in its clutches. It's not something I have dedicated an entire blog entry to, so I think that is on the agenda.

Back to the opinion piece at hand. If this fatal flaw at the very outset wasn't enough to completely discredit it, then reading on will leave you without any doubt.

By far the most worrying part of the article is the endorsement of capital punishment as the only alternative to police taking vigilante justice.

"Today we have a new and frightening development with the Police taking the law into their hands and arranging fake encounters for the purpose of carrying out executions. Should not these murderers also be tried and put to death after a judicial process? I ask the ‘pious’ what if we had captured Prabhakaran alive? Did he not deserve to die at the gallows? Saddam was hanged for less by the Americans and the West."

Prabhakaran was the leader of the Tamil Tigers who was found killed in a "rocket attack" in may this year. But there are reports that he was killed by a close range bullet to the back of the head, execution style. Calling on the death penalty to fix gaping holes in the justice system such as this does not seem like a particularly wise course of action. If your police and armed forces are unable to operate in a functioning and just manner, how can it be imagined that the death penalty will somehow alleviate this situation. If anything it would make the system far more brutal and arbitrary. God forbid a police force that deems it appropriate to execute accused criminals before bringing them to trial should be tasked with investigating the case against accused who are at risk of being sentenced to death.

The author suggests that despite the "corruption" of the authorities, a review by 3 Supreme Court judges could solve any issues of "wrongful execution". Sadly, and possibly unbeknownst to the scholar who penned this article, judges rarely if ever have the opportunity to go fact finding on appeal, and often are there solely to examine the evidence put before earlier courts, or any additional evidence found since then.

"It has been medically proved that hanging is more humane than any of the other methods. The term ‘Capital’ incidentally originates from Latin capitalis, literally "regarding the head" (Latin caput). Hence, a capital crime was originally one punished by the severing of the head."

Here is a textbook lesson in wikipedia journalism. You'll find these exact words, regarding the etymology of capital punishment, at the beginning of the wikipedia article on capital punishment. What worries me is the suggestion that hanging is medically proven to be more humane than any other form of execution. Find me one modern "medical" source that makes this ridiculous assertion and I'll hang myself.

It continues:

"We do not need to have any qualms about carrying out executions as Capital punishment has been practiced in virtually every society, and thus can be considered to be almost universal or close to it. Capital punishment is meted out in countries where more than 60% of the world’s population live. The four most populous countries in the world (the People’s Republic of China, India, United States and Indonesia) apply the death penalty and are unlikely to abolish it. Forty five countries today retain the death penalty."

I know my point of view might come across and patriarchal and colonial, but suggesting as any sort of authority that the death penalty is "in favour" around the world simply because it was once employed in every country, at least in their history, is not only absurd but totally missing the point. That the majority of nations (94) have completely abolished the death penalty is where the point can be found, and the direction in which modern sensibilities are moving. Of the other 45? Such hallowed company as Iran, Iraq and North Korea. The U.S. being the only Western liberal legal system that employs, and that is only a minority of states within the states. The United States is by no means "united" on the capital punishment. Incidentally, according to the DPIC (Death Penalty Information Center) in 1977 only 16 countries were abolitionist. It's interest to note again that it was in 1977 that Sri Lanka held its last execution. Is this conicidence or the signs of a slow and steady progression towards abolition. So why now is Sri Lanka baulking against the international trend?

He then goes on to talk about the cost effective nature of the death penalty and the deterrant effect. The latter being a legitimate concern but wickedly difficult to establish either for or against. The former being one of the most discredited and disowned grounds for supporting the death penalty.

Perhaps my favourite section is this:

"Imprisonment is not for murderers. There are three purposes for prisons. Firstly, prison separates criminals from the general population. Second, prison is a form of punishment. Finally, prison is expected to rehabilitate prisoners; so that when prisoners are released from prison, these ex-convicts are less likely to repeat their crimes and risk another prison sentence. The logic for capital punishment is that prisons are for rehabilitating convicts who will eventually leave prison, and therefore prison is not for people who would never be released from prisons alive."

I hope that somebody doesn't come on here and tell me this is some marginal, ultra-conservative rag that nobody reads. Or that the opinion piece was written by an high school student and the editor desperately needed to fill a column. My fear is, after reading this article, this sort of misinformation could possibly be common.

Have I just wasted my time? Have I just given this article more air time and consideration than it deserves? Probably, but sometimes the ignorance of the many can be the firebrand of the few. Hmm, I quite fancy that phrase. (TM)

Quote of the day:

"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalized by the habitual employment of punishment than it is by the occasional occurrence of crime."

- Oscar Wilde

In The News - August

The Supreme Court of the United States has ordered an evidentiary hearing should take place in light of new evidence, a decision that has been without precedent in 50 years. The pleas of Georgian death row inmate, Troy Anthony Davis, have not gone unheard around the world. He was convicted of killing an off duty Savannah police officer in 1989. He claims that almost all of the witnesses in his trial have since recanted their testimony and that the key witness is the shooter himself. However, this has not been a serious consideration in any of the appeal circuit courts due to the Antiterrorism and Effective Death Penalty Act which was instituted to streamline the death penalty. This ensures that the federal courts consider appeals based on constitutional grounds, and not factual or evidentiary grounds.

It’s unlikely that in the long term this decision will have any serious impact on the operation of the death penalty, but it certainly puts the question up in the air, and the more the waters are muddied, the more doubt that is put in the minds of America’s constituents, the better. This case also goes to show just how much power a collective of voices can have in seeing justice done. Troy Davis will now have the evidence against him properly reconsidered which is, at the barest minimum, justice. Whether or not his conviction is upheld remains to be seen. Should he be found innocent, I would expect the reverberations from such a decision to shake the very foundations of the death penalty in the United States. Here is a man, on death row 20+ years, having come close to execution numerous times, his call for a re-trial consistently ignored and finally found to be innocent.

This is such a endemic problem with the death penalty. Executing somebody demands even the most callous of people to be completely sure of their guilt. This is exactly why there are 11-13 stages of appeal for someone sentenced to death in the US. The problem I perceive, however, is the fact that the system needs to be “expedited” in the first place. Imprisonment isn’t a sentence that needs to be “hurried along”. It is a sentence than can be quickly reversed and easily maintained throughout a trial and all subsequent appeals. The death penalty needs to rush through countless appeals so that the actual sentence can then be carried through, after which, it is utterly irreversible.

"A state supreme court, a state board of pardons and paroles and a federal court of appeals have all considered the evidence Davis now presents and found it lacking”

In typical ultra-conservative fashion, Scalia has thrown out all reason and common sense by defending the decision of the previous federal court judges. To blindly put your trust in the functioning of the judiciary despite overwhelming evidence that the system is not working. Scalia is essentially denying that anybody could fall through the cracks and that the system could accidentally execute an innocent man. He seems to go as far as to suggest that if the state did execute an innocent man, because he was found guilty and that was upheld at every level of jurisdiction, the execution was “legal” despite innocence. Does he even realise that as the highest court in the U.S. it is his role to be a guardian of justice. Instead he seems to prefer turning a blind eye to the fact that perhaps capital punishment is not entirely infallible.

There’s no point dwelling on the ultra-conservative minority in this decision, especially when the split was 7/2. Justice Stevens summed it up well:

"Imagine a petitioner in Davis' situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The court correctly refuses to endorse such reasoning."

I’ll keenly await the outcome of Troy Davis’ evidentiary hearing.

______________________________________

Another big development has been a case which, about 2 years ago, I totally failed to put up on this blog, although I was aware of it. About 2 months before I arrived in the U.S. for my Reprieve internship, Michael Wayne Richard was executed while his lawyers scrambled to submit a motion for a stay of execution in order to lodge an appeal. Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, ordered the court closed at 5pm, against normal policy when an execution is about to occur.

It’s incredible to think that a judge who deals with cases and sentences that involve the execution of a person could be so capricious and heartless to take actions that would block this mans life from being spared. In truth, however, it’s not so hard to understand. When you have been dealing with state sanctioned murder so intimately and for so long, a form of brutalisation must occur. Seeing brutal murderers come and go, churned out by the implacable ritual that is capital punishment must be utterly soul destroying, especially when you take an active and complicit involvement in it. To Sharon Keller, execution must seem not only normal, but a huge inconvenience on her life, one which can be brushed aside effortlessly with a simple act of bureaucracy that screams of vindictiveness on a Machiavellian scale.

Thankfully, although massively delayed (2 years), she now stands trial for her acts. I would say that she should be held criminally liable for the death of this man, but I understand that it would be obtuse to suggest that a member of the judiciary could be held criminally responsible for a decision made within her official duties as a judge. That would completely compromise the independence and impartiality of the judiciary (which is already questionable in the United States).

I hope that the truth comes out in this trial and that the outcome does some small amount of justice to a man who was wrongfully executed.

Monster's Ball

Humanity and the death penalty is something I think I've written about on this blog and talked about all too often. Inhuman, evil and monster are words that I've extricated from my vocabulary when describing other people and their actions.

The whole question of humanity and the death penalty was raised again when I watched the movie Monster's Ball, starring Halle Berry, Billy Bob Thornton and Heath Ledger. I don't quite know how this film stayed under my radar for so long, but I had never really gone out of my way to see it.

Without giving away too much of the plot, it's the story of a family of three men from different generations who have grown up working as prison wardens on death row.

What really surprised me while I was watching the film was the moment Halle Berry arrives at the prison to see her husband on death row. To my surprise she pulled up to the all to familiar boom gates of Louisiana State Penitentiary, AKA Angola or The Farm. I felt like I'd been ambushed by a memory and a place that felt so familiar that I felt something akin to homesickness. It feels a bit absurd to say that I would be homesick for the entrance to a prison, but it has a way of bringing up very personal and vivid memories, which makes you immediately feel a sort of affinity with whatever you are engaging with, in this case, the film. I had spent so many hours at those front gates, waiting for the prison guard to arrive in his truck and take us on the long drive through the prison grounds to Camp D - Death Row. The wait was usually quite sombre. Surrounded by tall cyclone fences crowned with thick and menacing razor wire. The prison guards were always less than friendly, although our foreign accents sometimes elicited a smile from a usually taciturn demeanor. When I saw this place in the film, even though it was simply a scenic tracking shot that lasted a 20 seconds, it still made me sit bolt upright, my head swimming with memories.

The scene that followed was a visit between Halle Berry, her young son and her baby's daddy, as they say in the states, who was the condemned man. He was due to be executed the next morning and this was a farewell. The young boy asks why his father has to go, to which he responds, "Because I'm a bad man." The young boy asks him, "Who says?" to which he replies, "I do."

I've always believed that the death penalty destroys more lives than just the man who is executed. It ripples through society with corrupting after effects. This is beautifully portrayed in the film as the family of prison guards find their lives falling apart in the wake of this mans execution. The eldest, a retired prison guard, is an embittered, racist and generally cruel man who quite clearly takes great pleasure in the execution of criminals judging by the scrap book into which he lovingly pastes articles to do with executions. Billy Bob Thornton, the son of the eldest and the father of the youngest, is clearly heavily influenced by his father in terms of his racist beliefs, but it's unclear whether he truly harbours the same beliefs, or is simply dissembling to please his aging contemporary. Halle Berry as the wife of the condemned man, turns to alcohol while her morbidly obese son eats chocolate excessively. He hides this from his mother, who beats him when she eventually catches him with chocolate on his face.

None of the characters in the film have any redeeming qualities, with the exception of two. The condemned man, and the youngest generation of the prison guards, Heath Ledger. Both have extremely brief roles in the film, but their actions and personal stories have an impact on every other character in the film. In a way, their tragic stories engender a change in all of the other characters.

When the condemned man is waiting in his cell for the morning of his execution to dawn, the viewer is taken through a sort of intimate moment of shared suffering. He grabs the youngest prison guard and holds on to him through the bars of the prison cell. It's the most heartbreaking scene and you can't help but be filled with compassion. The father pulls his son away from the bars because he can see the compassion weakening the resolve of his son.

The condemned man, who enjoys sketching, begins to sketch both father and son as they sit outside his cell, keeping vigil. He tells the two of them, as he sketches the fathers face, "It truly takes a human being to see a human being."

These scenes of a mans last few hours are where the title of the film is most relevant. The monster's ball is the name given to a party held on the eve of a man execution, as was tradition in England before they abolished the death penalty. A similar tradition is represented in the film in the form of a mans last supper, which is still the norm in U.S. states that still use the death penalty. The condemned man orders whatever he wants for his last meal and, interestingly enough, in this scene it become clear that he never touches his food.

These three men share an intense and tragically intimate experience as they walk the condemned man to the electric chair. The cold, callous nature of a state sanctioned execution hits you so powerfully that when Heath Ledger, the youngest of the family, drops to his knees during the "last walk" and throws up, you are struck by just how terrible an impact this has on the guards, let alone the condemned man himself.

The tragedy of the Monster's Ball is that these people's lives disintegrate in the aftermath of the execution. I would say more but I would risk ruining the end of the film. Whether or not the ending has any redemption for the main characters is worth seeing for yourself. I think you'll find that the ending of the film speaks for itself.

Quote of the day:

"It truly takes a human being to see a human being."

- Monster's Ball (2001)

Changing Scope

I haven't blogged at all over the last 6 months and it's due entirely to applying and interviewing for graduate positions in January and February, and traveling Europe since March.

From July to December I'll be working as an intern for the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. During this time I hope to find the time to keep blogging, however, I wanted to make a slight change to the subject I've been writing about.

At the moment my purview is specifically state sanctioned executions. I wanted to change it slightly to include extra-judicial killings. This essentially includes genocide (the ultimate international crime) and mass murder committed by a state, a state body, the army or police. I have a strong interest in International Humanitarian Law, and mass executions are a horrifying, tragic and very real element in modern warfare.

I won't be including other warcrimes, for example torture, because then I think this blog will just start getting far too broad. I want to stick to state sanctioned and extra-judicial killings.

The obvious reason for this inclusion is that for the next 6 months I'll be working heavily with cases regarding war crimes during the Bosnian-Serbian war. As with my internship in New Orleans, I won't be able to talk about specific details of cases that I am working on, but I will be eager to write about the concept of warcrimes, the capture and trial of war criminals and any form of murder directly or indirectly undertaken by a government, government body, police or army outside the purview of the law.

During my visit to the Jewish Holocaust Museum in Berlin I saw a quote on the wall that is almost like a introduction to the horrifying expositions that follows, and it's a quote from Primo Levi an Auschwitz survivor and prolific writer.

"It happened, therefore it can happen again: this is the core of what we
have to say."

It occurred to me that although the Holocaust has not been repeated in history on the same scale, it certainly has been recreated in part through numerous conflicts, Sudan, Rwanda, Cambodia, Former Yugoslavia. Even with the creation of the International Criminal Tribunals for Rwanda and Yugoslavia, it still occurs. What needs to be done to stop it from continuing? The face of war has changed, and even though it is unlikely that a state will ever adopt a calculated policy of mass extermination like Hitler and the Nazis did, there are still conflicts in which massive amounts of non-combatants are murdered. Warcrimes Tribunals such as the one I will be working with have been extremely successful in holding warcriminals to account for crimes against humanity, but a more serious question is what more can be done to ensure that these crimes aren't allowed to occur at all, and when they do, how best to prosecute them.

Once I'm settled in The Hague I'm sure there will be lots on my mind.

Quote of the day:

"I am constantly amazed by man's inhumanity to man."

- Primo Levi

In The News - July

The Australian Government has made a big step towards ensuring that capital punishment cannot ever exist again in Australia. This is a strong message in support of global abolition and of course greatly in support of our Australians still on death row overseas.

The legislation will draw on the Commonwealth Government's external affairs power in s. 51(xxix) of the constitution. This power, it is argued, can interpreted to allow the Government to act upon international treaties, and therefore legislate on behalf of the states. The international treaty in question is the Second Optional Protocol to the ICCPR, of which we are signatories. We have also co-sponsored a resolution for a moratorium on the death penalty.

Even though it's merely a consolidation of the status quo in Australia, it's an important step in the right direction both at home and abroad. The Human Rights Committee observed that "all steps taken to abolish the death penalty must be viewed as progress towards the enjoyment of the right to life." This is no doubt the case by closing the door completely on the death penalty.

Andrew Chan, Myuran Sukumaran and Scott Rush are still on death row in Indonesia, and so any unified approach against the death penalty will not fall on deaf ears with our closest neighbours. What more powerful message to send than a complete and irrevocable refusal to ever allow the return of the death penalty.

The legislation is expected to be past in spring. For the sake of Australians abroad I hope that not too much political debate is raised by the Opposition, because only a bipartisan approach will send a strong enough message to perhaps save lives.