Informing International Policy and Public Opinion on the Death Penalty

Based on the Research of Dr Daniel PASCOE

Dr Pascoe’s research has helped to inform international policy and public opinion on the death penalty in several jurisdictions in the Asia-Pacific region, not least Australia. On 29 April 2015, Australian citizens Andrew Chan and Myuran Sukumaran were executed in Indonesia following ten years on death row for drug offences. The public outcry against the executions was strong. Thereafter, the Australian government decided it needed to use its voice in the region to advocate more strongly for the abolition of the death penalty in general, rather than merely in response to these two specific cases.

Criticism had been levelled at previous Australian governments for inconsistency and mixed messages in their policy towards the death penalty overseas. For example, then Prime Minister John Howard stated in several interviews in the mid-2000s that while he was opposed to the execution of Chan and Sukumaran, he would be in favour of the death penalty for the perpetrators of the Bali nightclub bombings in October 2002, which killed 88 Australians. By the early 2010s there was a growing feeling in Australian policy circles that to best protect one’s own citizens it was necessary to publicly oppose the death penalty as a matter of principle as part of a coherent foreign policy response, rather than pick and choose individual cases to oppose death sentences and executions. The April 2015 executions highlighted the lack of a clear and consistent position towards the death penalty overseas on the part of the Australian government and showed a pressing need for a coherent policy going forward. Although Australia has always co-sponsored and voted in favour of imposing a global moratorium on capital punishment when the UN General Assembly has considered the issue (from 2007 onwards), this has never been translated into a clearly articulated foreign policy. In the past, trade and economic interests were put to the fore ahead of human rights issues when dealing with Asia, the world’s foremost retentionist region.

On 21 July 2015, the Australian Minister for Foreign Affairs, Julie Bishop MP, asked the Committee on Foreign Affairs, Defence and Trade to inquire into and report on "Australia's Advocacy for the Abolition of the Death Penalty". The inquiry was led by the Human Rights Subcommittee, chaired by Philip Ruddock MP, and it received written and oral submissions from a range of individuals and organisations. Dr Pascoe’s paper "Socio-Political Determinants of the Death Penalty and Australia's Foreign Policy" (October 2015) was one of only six written submissions from academic experts. The paper provides a comprehensive overview of human rights-based abolition strategies that draws extensively from the previous death penalty literature, and from Dr Pascoe’s own research. Dr Pascoe was then invited to give oral evidence to the Committee in November of the same year. Dr Pascoe’s written submission and oral testimony were eventually cited 15 times in the Committee’s final report and some of his suggestions align directly with the Committee's 13 eventual recommendations to the Australian Government, as follows:

Advocating for a broader human rights approach, rather than an exclusive focus on the death penalty, which translated into Committee Recommendation 6: “The Committee recommends that, where appropriate and especially in relation to public messaging, Australian approaches to advocacy for abolition of the death penalty be based on human rights arguments”;

Arguing for a focus of Australian advocacy efforts on Asia-Pacific countries which have already reached "abolitionist in practice" (non-executing) status, to help to move those countries towards full abolitionist status in domestic law. This is reflected in Committee Recommendation 10: “The Committee recommends that the specific aims of the Strategy for Abolition of the Death Penalty include: … encouraging [abolitionist in practice] Papua New Guinea not to reinstate capital punishment; [and] assisting Nauru, Tonga, Republic of Korea and Myanmar to move from abolitionist in practice to abolitionist in law”;

Advocating for Australia to enlist regional partners in the push for abolition, including the potentially important role of abolitionist states in the Asia-Pacific region which share similar cultural and religious attributes with neighbouring retentionist states. An earlier citation of Dr Pascoe’s written submission also noted the historical significance of "regional contagion" effects in abolishing the death penalty. This is reflected in Committee Recommendation 10: “The Committee recommends that the specific aims of the Strategy for Abolition of the Death Penalty include: … forming a coalition of like-minded countries who can work in concert to promote abolition of the death penalty in the Indo-Pacific region”;

Advocating against the Australian Government directly employing economic pressure (i.e. by withholding trade agreements, investment and aid) to push for regional abolition. Indirectly, this argument is reflected in an absence of Committee recommendations which suggest utilising direct economic means to pursue abolition in neighbouring jurisdictions.

The Australian Government accepted the recommendations of the Parliamentary Joint Committee in its March 2017 response and implemented them as part of a "whole of government strategy" published in June 2018. This strategy now forms an official strand of Australian foreign policy, which Dr Pascoe’s research has helped to shape.

Since joining CityU, Dr Pascoe has also presented aspects of his research on the death penalty in Southeast Asia at two events attended by legal practitioners, NGO staff, civil servants, military personnel, diplomats and other professionals. Both events have a longer-term potential to shape state approaches to capital punishment, including by bringing Dr Pascoe’s work to the attention of national policymakers. The first event took place in March 2017 at Ho Chi Min City University of Law, Vietnam. This was the first academic conference to be held in Vietnam covering the death penalty in comparative perspective. The event was ground-breaking in that the death penalty is not broadly discussed in Vietnamese civil society, and statistics on the country’s use of the death penalty have been a state secret since 2004. This was a rare opportunity for a foreign academic to address an audience which included members of the Criminal Code Drafting Committee, members of the National Assembly and advisors to Vietnamese Government. The conference was supported by the Australian Department of Foreign Affairs and Trade, through the Australian Human Rights Commission, and produced several publications in English and Vietnamese. The very fact that there is now a body of comparative death penalty scholarship available online in the Vietnamese language, is remarkable for a country whose own death penalty practices are still shrouded in secrecy.

The second event Dr Pascoe attended was a meeting of international experts convened by UN Assistant Secretary-General for Human Rights, Andrew Gilmour, in Bangkok, Thailand in February 2018 under the auspices of the United Nations Economic and Social Council for Asia Pacific . Its aim was to discuss the human rights dimensions of the criminal justice response to the drug problem in Southeast Asia, including the application of the death penalty. The meeting was attended by academics, legal professionals and human rights experts from the region, as well as UN human rights officials and representatives from the UN Office of Drugs and Crime. Dr Pascoe spoke on clemency litigation strategies in the region, based on the findings of his research. The meeting produced a final report in November 2018, which will be used over the next few years by the Office of the United Nations High Commissioner for Human Rights in its advocacy vis-à-vis Southeast Asian nations.

Finally, Dr Pascoe has made several media appearances to clarify the issues around this subject of intense public interest. He has appeared on television in Australia and Singapore (Interview with Australian Broadcasting Corporation on Death Penalty Clemency in Southeast Asia, ‘#Talkaboutit’ Programme, 12 April 2015; Interview with Channel News Asia on Clemency and the Death Penalty in Indonesia, ‘Insight’ Programme, 29 January 2015), radio in Austria (Interviews with Radio Austria on Recent Developments Concerning the Death Penalty in Indonesia, January 2015 and May 2016) and has contributed op-eds in Australian and Indonesian newspapers (‘Clemency a sign of presidential power’ Jakarta Post, 30 January 2015; ‘Change of President means unsettling time for death row prisoners’ The Age, 16 October 2014). In a more general way, these contributions to media discourse have helped to shape public opinion regarding the death penalty in the Asia-Pacific region.