POLICY BRIEF

August 2006

DR MICHAEL FULLILOVE Capital Punishment and Program Director Global Issues Australian Foreign Policy Tel: +61 2 8238 9040 [email protected] W h a t i s t h e p r o b l e m ?

Australia is an abolitionist country. Both the Australian Government and the Opposition are opposed to capital punishment. Australia engages in modest advocacy against the death penalty but most of Canberra’s efforts are directed toward cases involving Australian citizens. These are likely to continue to occur: our closest Asian neighbours retain the death penalty, and Australian nationals will probably continue to commit criminal acts carrying this penalty. Situations involving Australians often do violence to bilateral relations. For example, the looming execution of Van Tuong Nguyen last year led to calls from Australian commentators for trade and business sanctions against Singapore, and charges of hypocrisy being levelled against Australia in the regional press.

The problem, then, is twofold: Australian diplomacy is making little progress toward universal abolition, a bipartisan national policy; and our bilateral relationships are being damaged because of our perceived hypocrisy on the issue.

W h a t s h o u l d b e d o n e ?

Australia is an effective advocate for our nationals on death row. However, we should accelerate our efforts on comprehensive abolition, in two ways:

• Australian political leaders should bring some consistency to their rhetoric on the death penalty; and

• Australia should initiate a regional coalition against capital punishment. In the past decade five Asian states have done away with the death penalty. In partnership with abolitionist Asian states, we should devise creative ways to nudge others toward abolition.

LOWY INSTITUTE FOR Speaking with one voice on capital punishment and leading from the front INTERNATIONAL POLICY would increase our chances of making a difference. It would also disarm 31 Bligh Street those regional critics who charge that Australia cares only about its own. In Sydney NSW 2000 other words a forward-leaning policy would conform with Australian Tel: +61 2 8238 9000 interests as well as Australian values. It would be the smart thing to do as Fax: +612 8238 9005 well as the right thing. www.lowyinstitute.org qÜÉ=içïó=fåëíáíìíÉ=Ñçê=fåíÉêå~íáçå~ä=mçäáÅó=áë=~å=áåÇÉéÉåÇÉåí=áåíÉêå~íáçå~ä=éçäáÅó=íÜáåâ=í~åâ= Ä~ëÉÇ=áå=póÇåÉóI=^ìëíê~äá~K==fíë=ã~åÇ~íÉ=ê~åÖÉë=~Åêçëë=~ää=íÜÉ=ÇáãÉåëáçåë=çÑ=áåíÉêå~íáçå~ä=éçäáÅó= ÇÉÄ~íÉ=áå=^ìëíê~äá~=Ô=ÉÅçåçãáÅI=éçäáíáÅ~ä=~åÇ=ëíê~íÉÖáÅ=Ô=~åÇ=áí=áë=åçí=äáãáíÉÇ=íç=~=é~êíáÅìä~ê= ÖÉçÖê~éÜáÅ=êÉÖáçåK==fíë=íïç=ÅçêÉ=í~ëâë=~êÉ=íçW= = • éêçÇìÅÉ=ÇáëíáåÅíáîÉ=êÉëÉ~êÅÜ=~åÇ=ÑêÉëÜ=éçäáÅó=çéíáçåë=Ñçê=^ìëíê~äá~Ûë=áåíÉêå~íáçå~ä=éçäáÅó=~åÇ= íç=ÅçåíêáÄìíÉ=íç=íÜÉ=ïáÇÉê=áåíÉêå~íáçå~ä=ÇÉÄ~íÉK=== = • éêçãçíÉ= ÇáëÅìëëáçå= çÑ= ^ìëíê~äá~Ûë= êçäÉ= áå= íÜÉ= ïçêäÇ=Äó= éêçîáÇáåÖ= = ~å= ~ÅÅÉëëáÄäÉ= ~åÇ= ÜáÖÜ= èì~äáíó= Ñçêìã= Ñçê= ÇáëÅìëëáçå= çÑ= ^ìëíê~äá~å= áåíÉêå~íáçå~ä= êÉä~íáçåë= íÜêçìÖÜ= ÇÉÄ~íÉëI= ëÉãáå~êëI=äÉÅíìêÉëI=Çá~äçÖìÉë=~åÇ=ÅçåÑÉêÉåÅÉëK======içïó= fåëíáíìíÉ= mçäáÅó= _êáÉÑë= ~êÉ= ÇÉëáÖåÉÇ= íç= ~ÇÇêÉëë= ~= é~êíáÅìä~êI= ÅìêêÉåí= éçäáÅó= áëëìÉ= ~åÇ= íç= ëìÖÖÉëí=ëçäìíáçåëK=qÜÉó=~êÉ=ÇÉäáÄÉê~íÉäó=éêÉëÅêáéíáîÉI=ëéÉÅáÑáÅ~ääó=~ÇÇêÉëëáåÖ=íïç=èìÉëíáçåëW=tÜ~í= áë=íÜÉ=éêçÄäÉã\=tÜ~í=ëÜçìäÇ=ÄÉ=ÇçåÉ\= = qÜÉ= îáÉïë= ÉñéêÉëëÉÇ= áå= íÜáë= é~éÉê= ~êÉ= ÉåíáêÉäó= íÜÉ= ~ìíÜçêÛë= çïå= ~åÇ= åçí= íÜçëÉ= çÑ= íÜÉ= içïó= fåëíáíìíÉ=Ñçê=fåíÉêå~íáçå~ä=mçäáÅóK= Policy Brief

Capital Punishment and Australian foreign Policy

Capital punishment in Asia and the world However, the news is not all bad for those who oppose capital punishment; indeed, progress is The death penalty is an ugly feature of the being made. Since 1990, over forty countries world in which we live. 71 countries and have abolished the death penalty for all crimes. territories retain and use the death penalty. In our own region, five Asian states have Accurate numbers are impossible to obtain abolished the death penalty in the past decade because many countries refuse to produce and a half: Cambodia (1989), Nepal (1997), official statistics on death sentences and Timor-Leste (1999), Bhutan (2004), and the executions. However, Amnesty International Philippines, where President Gloria Macapagal- estimates that at least 2,148 people were Arroyo signed a bill outlawing the death executed in 2005 and 5,186 people were penalty on 24 June this year. In addition, sentenced to death. The global death row Brunei Darussalam, Maldives, Myanmar and accommodates at least 20,000 individuals. Sri Lanka are regarded as abolitionist in These are minimum figures: the actual totals practice, even if not at law.4 are probably much higher.1

The Asian region, in which Australia does Why is the death penalty an issue for much of its commercial and diplomatic Australia? business, is world’s best practice when it comes to executing people. Fifteen Asian states retain The persistence of capital punishment in our the death penalty for ordinary crimes: region and around the world is an issue for Bangladesh, China, India, Indonesia, Japan, Australia, and not only when the condemned North Korea, South Korea, Laos, Malaysia, person is an Australian national.5 In the case of Mongolia, Pakistan, Singapore, Taiwan, Australians, of course, the case is black and Thailand and Vietnam.2 China and Singapore white. All governments have a consular in particular have distinguished themselves. responsibility to assist their nationals when Public reports indicate that at least 1,770 they are in difficulties abroad, especially when people were executed in China last year, which their lives are at risk. Shortly after the represents more than 80% of known execution of Nguyen Tuong Van last executions worldwide. (Again, the true number December, Foreign Minister Alexander Downer is likely to be much higher than this.) In the stated the position plainly: ‘We will always period 1999-2003, Singapore boasted by far make representations on behalf of Australian the highest per capita execution rate in the citizens who are given the death penalty. We world: 6.9 executions per 1 million people. will always seek clemency on their behalf.’6 Since 2000, methods of execution in Asia have included hanging (Japan and Singapore), Van Nguyen was the first Australian to be shooting by firing squad or with a single bullet executed in Singapore since its independence to the back of the head (China, Taiwan and and the first to be executed overseas since Vietnam), and lethal injection (China and 1993. However he is unlikely to be the last. Thailand).3 Currently, at least four Australian nationals are at serious risk of execution:7

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• Andrew Chan and Myuran Sukumaran of innocent people will be executed because of the the Bali Nine, sentenced to death in inability of legal systems (especially, but February for attempted heroin smuggling, certainly not only, in the developing world) to are appealing their convictions. Recent eliminate error and prejudice; that it causes comments by Indonesian President Susilo unacceptable suffering to the condemned and Bambang Yudhoyono indicated that their innocent loved ones; that it is does not clemency is unlikely to be awarded to deter the commission of crime. One of the most convicted drug traffickers. compelling historical critiques of capital punishment was George Orwell’s account of a • Trinh Huu, sentenced to death last hanging in colonial Burma. Walking behind the December in Vietnam for drug trafficking, condemned man on the way to the gallows, had his appeal rejected in April. He has Orwell noticed him step slightly aside to avoid applied for clemency. a puddle on the path: • An unnamed Australian in Lebanon is facing murder charges which could lead to ‘It is curious, but till that moment I had never a sentence of death. The case has not yet realized what it means to destroy a healthy, gone to trial. conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, Furthermore, other Australians are likely to the unspeakable wrongness, of cutting a life join them on death row. Many of our closest short when it is in full tide. This man was not neighbours, including our key source and dying, he was alive just as we were alive. All transit countries, retain the death penalty for the organs of his body were working – bowels drug trafficking and other serious offences. digesting food, skin renewing itself, nails Given the frailties of human nature, Australian growing, tissues forming – all toiling away in nationals are likely to commit these crimes – in solemn foolery. His nails would still be growing particular the carriage of commercial quantities when he stood on the drop, when he was of illegal drugs – and to be called to account for falling through the air with a second to live. them. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, Quite apart from Australia’s specific reasoned – reasoned even about puddles. He responsibility in the case of Australians facing and we were a party of men walking together, the death penalty, however, we should also be seeing, hearing, feeling, understanding the same active on the question of universal abolition, world; and in two minutes, with a sudden snap, for reasons of both values and interests. one of us would be gone – one mind less, one world less.’8 State-sanctioned killing clearly engages Australian values. Opponents of capital Australian public opinion is divided on the punishment make a variety of persuasive merits of capital punishment. Poll results vary arguments: that it offends human dignity; that depending on the question asked and the it brutalises the societies which employ it; that salience of the issue at the time of polling. For

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example, in November 2005, Roy Morgan stated that Labor is opposed to the death found that only 27% of respondents believed penalty worldwide. The other political parties the penalty for murder should be death – the concur.1 1 lowest figure ever recorded and half of what it was a decade ago. On the other hand Morgan Unless and until our elected representatives recorded that 47% of Australians believed that decide otherwise, the settled policy of the Van Nguyen’s death penalty should be carried Australian Government is to oppose capital out. In August 2003, Newspoll found that a punishment. Successive governments have majority of respondents supported the indicated that the death penalty offends reintroduction of capital punishment for terror Australian values – and as Prime Minister attacks committed in Australia.9 Howard has rightly said (albeit in another context): ‘in the end a nation’s foreign policy Ultimately, it is not necessary to litigate the must be values-based.’1 2 pros and cons of the issue. We do not start with a blank sheet. The Australian Government is Maintaining our opposition to the death opposed to capital punishment. The last penalty in relation to foreigners as well as Australian executed in this country was Ronald Australians conforms with our values. It also Ryan in 1967. The death penalty has been serves our national interests.1 3 Four Australians abolished by the Commonwealth of Australia currently sit on death row and in all likelihood, and all its States and Territories. Canberra has others will join them there. The best position acceded to the Second Optional Protocol to the from which to petition foreign governments on International Covenant on Civil and Political behalf of our nationals is that of consistent and Rights (ICCPR), which prohibits the execution strong opposition to the death penalty of any person within the jurisdictions of the regardless of the nationality of the condemned. states party to it.1 0 Official documents set out Such a stance would enable the government to Australia’s opposition to the death penalty on deal with the issue positively and continually, the universal ground that it is ‘an inhumane rather than negatively and sporadically. It form of punishment which violates the most would increase the momentum toward fundamental human right – the right to life.’ universal prohibition and bulletproof us against We consistently sign up to UN resolutions claims of hypocrisy. calling upon all states to abolish it. Furthermore, at the political level an effective If, on the other hand, we create a perception consensus exists that capital punishment is bad that we are concerned only or principally with and Australia should work against it. Prime capital punishment when it involves Minister John Howard has said ‘I don’t believe Australians, then we open ourselves to in capital punishment’ and Foreign Minister accusations of special pleading. Indeed, these Alexander Downer has confirmed ‘the accusations are already being made. In the lead- Australian Government has a longstanding up to Van Nguyen’s execution, for instance, the policy of opposition to the death penalty.’ The Singaporean and Malaysian press contained alternative Prime Minister and Foreign statements to the effect that, as a commentator Minister, Kim Beazley and Kevin Rudd, have for The Straits Times put it, ‘Australians…

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practise double standards.’ ‘Singaporeans live on the strength of the bilateral relationship. under the very same laws that convicted Generally DFAT prefers high-level political Nguyen’, stated another columnist. ‘Are the representations to interventions in local judicial Australian government and people suggesting processes, unless there is strong evidence that that because he carried an Australian passport, due process has not been followed. he is therefore above our laws?’1 4 Anecdotal Representations are made by senior officials, evidence confirms that this perception exists in the Foreign Minister, and on occasion, the a number of southeast Asian countries. The highest officeholders in the land. In the case of best way to disarm these kinds of critics is to Van Nguyen, for example, several dozen act consistently. written and personal representations were made to the President, Prime Minister and It is understandable and appropriate that other senior ministers of Singapore by the Australia places a particular priority on the Australian Governor-General, Prime Minister, welfare of its own citizens. It would be naïve to Foreign Minister, Trade Minister, Attorney- imagine that any national government would General, Justice Minister and Parliamentary ever be indifferent to the kind of passport held Secretary for Foreign Affairs, as well as our by an individual facing execution – nor should High Commissioner in Singapore and other it be. However, vigorous opposition to capital officials.1 5 punishment in general is likely to bolster a government’s credibility in opposing certain It is not easy to judge the effectiveness of specific executions. diplomacy that is often quiet. Certainly it is vigorous, as one would expect, and as the political imperative requires. There was Australians on death row criticism of the Government’s handling of Van Nguyen’s case, but it is hard to imagine what If it accords with Australian values and serves more Canberra could have done that would Australian interests to lobby for our nationals have altered Singapore’s implacable, clinical on death row and pursue universal abolition – determination to put him to death. and furthermore it is our stated policy to do so Furthermore, our consular efforts have their – then how well are we performing? The successes as well as failures: earlier this year, answer is: fairly well on the consular side, and for example, the President of Vietnam fairly modestly on the universal side. commuted the death sentences of Australian citizen Mai Cong Thanh and Australian In relation to Australian nationals, the permanent resident Nguyen Van Chinh after a Department of Foreign Affairs and Trade full-court diplomatic press by Canberra, (DFAT) always seeks clemency for Australians including personal lobbying by Mr Howard.1 6 sentenced to death. It takes a pragmatic approach to each case, using the arguments it As Van Nguyen’s execution loomed last year, a judges are most likely to find success. In some number of politicians suggested that Canberra cases, for example, the emphasis is put on an should up the ante by interrupting bilateral individual’s personal circumstances; in others, trade or limiting the Australian activities of

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Singaporean businesses. Liberal backbencher International. Sometimes those representations Bruce Baird MP, for example, argued the are made within the context of the ongoing Government should take Singapore’s behaviour human rights dialogues Australia maintains into account when considering whether with China, Vietnam and Iran. Current and Singapore Airlines should be given access to the former Australian diplomats involved with the Sydney-Los Angeles air route; Greens Senator making of such representations differ on their Kerry Nettle raised the possibility of trade value. Speaking off the record, one said that sanctions and even military sanctions.1 7 These representations are ‘very formulaic… the point kinds of prescriptions are flawed. They would is to make no waves but to be able to tell the fail the effectiveness test, as they would be non-governmental organisations (NGOs) we’ve highly unlikely to save any Australian lives. done it.’ Another observed that the making of Sovereign governments tend not to take well to representations gives the Foreign Minister a bullying, especially by a middle-sized power. story to tell the human rights NGOs at his They would damage other Australian interests biannual meeting with them. A third official, by and make us a less effective international contrast, was more positive, saying the effect of player. Finally, their limitation to cases representations is in the nature of ‘water involving Australian citizens would undermine dripping on stone.’ He argued that ‘a structured the moral strength of our abolitionist position. diplomatic exchange’ can initiate a useful discussion, although it depends on whether the official ‘reads it off a sheet or delivers it with Universal abolition conviction’.

In relation to Australians on death row, then, In sum, the Australian Government serves in the Government is reasonably effective. In the ranks of the anti-death penalty forces. relation to universal abolition, however, we do However the issue is not accorded a high less than we should. diplomatic priority. Few observers would identify Canberra as a leader in the Certainly, we oppose the death penalty at the international abolition movement. multilateral and bilateral levels. We join other abolitionist states in co-sponsoring an annual UN resolution calling upon all states to abolish What should be done? or limit the death penalty.1 8 At the request of the European Union, which takes the lead on Australia should take universal abolition more these resolutions, Australia has lobbied Pacific seriously and accelerate its efforts on this Island countries to join the ranks of the co- bipartisan policy issue. There are two steps sponsors. Australia should take.

From time to time Australia also makes 1. Be consistent in our public comments bilateral representations on behalf of non- In the advocacy of human rights, consistency is Australians on death row, usually on the basis a virtue. The Australian international relations of information provided by Amnesty scholar R.J. Vincent observed that ‘finding its

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place in the empire of circumstance is more Howard, who both declared they would not damaging to human rights policy than it might object to his execution.2 2 be to other items of foreign policy, because… it is on the substance and appearance of even- This kind of inconsistency erodes the handedness that a successful human rights abolitionist underpinnings of our stance. It policy depends.’ Of course, true consistency is makes us look hypocritical when we ask for only possible for angels, not governments. No our own people to be spared. As a Australian government will ever be as exercised commentator remarked in The Straits Times in by the execution of someone from Mumbai as December 2005: ‘those who are most critical of it is by the execution of someone from the Singapore authorities in the Nguyen case Melbourne. Different circumstances require are silent when it comes to Amrozi, who is on different approaches.1 9 That said, a general death row in Indonesia for his role in the Bali consistency of direction is essential. bombing which killed many Australians… Is this a case of double standards – death for However it is difficult to discern such Amrozi because he killed Australians, leniency consistency in the recent comments of for Nguyen because he is Australian? Why is Australian politicians about the death penalty; the death penalty ‘barbaric’ in one case, but not instead, we have seen blatant and apparently the other?’2 3 deliberate departures from Australia’s official position. For example, in February 2003 Mr Opposing capital punishment in all cases, Howard said that if the perpetrators of the including the hardest cases, buttresses our 2002 Bali bombing, which killed 202 people position in relation to Australians on death including 88 Australians, were sentenced to row. Our political leaders should ensure that death there ‘won’t be any protest from Australia’s principled opposition to the death Australia’. The following month the Prime penalty is reflected in their public comments. Minister told America’s Fox 9 News Channel They should resist the temptation to play to the that he would welcome the execution of Osama gallery, even in relation to individuals who Bin Laden.2 0 In August 2003, the then Labor have caused great suffering to Australians and frontbencher Mark Latham rejoiced in the in relation to important friends and allies such sentencing of Bali bomber Amrozi to death by as Indonesia and the United States. firing squad: ‘I think it’s a day where all political parties should be celebrating, thankful for the fact that one of the bastards has been 2. Initiate a regional coalition against the got and he’s going to face the full weight of the death penalty law in the jurisdiction where this act of evil was We need to get our death penalty rhetoric right. committed.’2 1 We also need to create some diplomatic reality behind it. The Government should signal that The capture of Saddam Hussein in December universal abolition is an Australian diplomatic 2003 produced a rare example of unanimity priority and devise a strategy to advance the between Mr Latham, the newly elected issue. Opposition Leader, and his opponent Mr

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One approach would be to work more closely to save a single life. Instead we should look for with the Europeans, who form the most strictly creative approaches to nudge regional countries abolitionist international bloc. Some Australian toward abolition. officials criticise the Europeans’ approach as ‘press release diplomacy’, but it is impossible to There are a number of ways to structure the deny the impact that their sustained advocacy coalition’s work, none of it absolutist in tone. has had on the issue generally or in particular Megaphones need not be employed. We may cases such as the Philippines and Turkey, which find it politic to focus our resources on de facto limited its application of the death penalty in abolitionist countries such as Sri Lanka, and order to boost its case for entry to the seek to move them up the spectrum towards European Union. formal abolition. A particular opportunity exists in the case of South Korea, which has not However a better approach would be for executed anyone since 1998 but maintains a Australia to start its work in Asia, the region death row of sixty-odd individuals. There is a where we deploy our greatest diplomatic growing movement in South Korea to abolish resources and which also happens to be the capital punishment in favour of life location of most of the world’s executions. imprisonment without parole, which is Australia has an activist diplomatic tradition supported by former President Kim Dae-jung within the region and some experience in and was kicked along this year by the Justice building constituencies for particular initiatives, Ministry’s announcement that it will study the as demonstrated by our work on the case for abolition. A similar debate is stirring in Cambodian peace process and the Malaysia, led by the Bar Council and a Cabinet establishment of the Asia-Pacific Economic Minister.2 4 Ultimately this issue will be decided Cooperation forum (APEC). Australia should in Seoul and Kuala Lumpur, of course, but a initiate a regional coalition of Asian states regional grouping may be able to influence the opposed to the death penalty, in order to build thinking in those and other capitals. on the momentum created by its abolition in five Asian jurisdictions in the past decade. If we There are other strategies we could employ, all make common cause with Cambodians, of them more nuanced than simply demanding Nepalese, East Timorese, Bhutanese, Filipinos universal abolition immediately. For example, and others, we will increase our points of the coalition could encourage retentionist influence and decrease the ability of death countries to: penalty proponents to accuse us of neo- colonialism. • Announce a moratorium on executions as part of a move toward complete abolition; The work of the coalition should be guided by • Restrict the number and type of offences the principles of effectiveness and prudence. for which capital punishment is imposed; The issuing of loud condemnations and the indiscriminate raising of trade and military • Abolish mandatory death penalties (such as sanctions would leave Australia poor and the one according to which Van Nguyen friendless, and furthermore would be unlikely was executed);

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• Release comprehensive official statistics and widespread violations of human rights. about their use of the death penalty; That idea has been embraced widely and was adopted by national heads of government at the • Guarantee that death sentences will not be UN’s 2005 World Summit in New York.2 7 A carried out on children, pregnant women, high-level advisory group of this kind could new mothers, or the insane; and that it will generate ideas and provide political cover for only be applied after a fair trial, and when the regional coalition. the individual’s guilt has been established by clear evidence, leaving no room for alternative explanation; Conclusion • Institute safeguards to protect the rights of those on death row, for example the right By being inconsistent and declaratory about to appeal to a court of higher jurisdiction, capital punishment, we look hypocritical and the right to seek a pardon or commutation, weak. Stepping up our efforts toward universal and the right not to be executed pending abolition, by contrast, would not only be the 25 any such appeal. right thing to do but the smart thing. If we put our shoulder to this wheel, we may even be The regional coalition should be inter- able to move it a little; certainly, wheels rarely governmental in nature, but the Government move without pushing. could also consider appointing a high-level advisory body composed of eminent people. An Australian example of this model was the Keating Government’s Canberra Commission on the Elimination of Nuclear Weapons, whose membership included Robert McNamara, Michel Rocard, Richard Butler and Robert O’Neill and which produced an impressive report in 1996. 26 An example which achieved Acknowledgments considerably more success was Canada’s International Commission on Intervention and I am grateful for the excellent research State Sovereignty (ICISS), which was co-chaired assistance provided by Moya Collett, a PhD by former Foreign Minister Gareth Evans and candidate at the University of New South whose membership included Michael Ignatieff, Wales. Joanne Bottcher was as efficient as ever. Fidel Ramos and Ramesh Thakur. The ICISS’s Thanks also to my interviewees and readers, highly influential report, The Responsibility to including: Tim Goodwin of Amnesty Protect, argued for the existence of an emerging International, a leading death penalty norm, after Somalia, Bosnia-Herzegovina, opponent; John North of the Law Council of Rwanda and Kosovo, that a collective Australia; Allan Gyngell and Dr Malcolm Cook international responsibility to protect civilians of the Lowy Institute; and various Australian exists in the case of genocide, ethnic cleansing officials.

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BIBLIOGRAPHY

Amnesty International, Facts and figures on the China’s world record – 8,000 dead?, Asia death penalty: Death Penalty blog, 1 March 2006: http://web.amnesty.org/pages/deathpenalty- http://asiadeathpenalty.blogspot.com/2006/03/c facts-eng. hinas-world-record-8000-dead.html.

______, Abolitionist and retentionist Dae-woong, Jin, Former President Kim calls for countries: end to death penalty. The Korea Herald, 27 http://web.amnesty.org/pages/deathpenalty- February 2006. countries-eng. Debates rekindled on death penalty. The Korea Beazley, Kim, Interview with Philip Clark, Times, 23 February 2006. Radio 2GB, 14 February 2006, http://www.alp.org.au/media/0206/riloo141.php. Department of Foreign Affairs and Trade, Human Rights Manual. Canberra, Cagahastian, David, Bill abolishing death Commonwealth of Australia, 2004: penalty signed – all death sentences now http://www.dfat.gov.au/hr/hr_manual_2004/hr commuted to life. Manila Bulletin, 25 June _manual.pdf. 2006. ______, What we do: Camus, Albert, Reflections on the guillotine. http://www.dfat.gov.au/dept/whatwedo.html. Translated from the French by Richard Howard. Michigan City, Fridtjof-Karla Donnelly, Jack, Universal human rights in Publications, 1959. theory and practice. Ithaca, Cornell University Press, 1989. Canberra Commission on the Elimination of Nuclear Weapons, Report of the Canberra Downer, Alexander, House of Representatives Commission on the Elimination of Nuclear Hansard, 14 February 2006, p.3: Weapons. Canberra, Dept of Foreign Affairs http://www.aph.gov.au/hansard/reps/dailys/dr1 and Trade, 1996: 40206.pdf. http://www.dfat.gov.au/cc/cchome.html. ______, House of Representatives Carlyon, Patrick, Swinging voters. The Bulletin, Hansard, 13 February 2006: 1 March 2006. http://www.aph.gov.au/hansard/reps/dailys/dr1 30206.pdf. Carr, E.H., The twenty years’ crisis 1919-1939: an introduction to the study of international ______, List of representations to relations. London, Macmillan, 1970. Singapore Ministers and President, 28

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November 2005: ______, Joint press conference with then http://www.foreignminister.gov.au/releases/200 British Foreign Secretary Jack Straw, 5/nguyen_van_tuong_representation_singapore. November 2003: html. http://www.pm.gov.au/News/interviews/Intervi ew564.html. Fernandez, Warren, Real villains in Nguyen case. The Straits Times, 3 December 2005. Koestler, Arthur, Reflections on hanging. London, Victor Gollancz, 1956. Grattan, Michelle, Airline row linked to Nguyen. The Age, 24 November 2005, p.1. Lasry, Lex, Australia and the death penalty – are we really against it? Costello Lecture, Greens say increase pressure on Singapore. Monash University, 29 March 2006: AAP, 27 November 2005. http://www.law.monash.edu.au/alumni/events/d eathpenalty.pdf. Greens, The, Government doesn’t abhor death penalty. Media release, 29 November 2005: Lewis, Steve, Terrorists should die: poll – http://www.bobbrown.org.au/600_media_sub. majority in support of Amrozi execution. The php?deptItemID=1833. Australian, 19 August 2003, p.1.

Harries, Owen, Morality and foreign policy. Loo Kok Wee, Wilson, Australians shouldn’t CIS Occasional Paper 94. Sydney, Centre for get special treatment. The Straits Times, 30 Independent Studies, 2005. November 2005.

Hearing on death penalty. The Korea Herald, 3 Malaysian law minister supports abolishing April 2006. death penalty. Dow Jones International News, 21 March 2006. Howard, John, Interview on Fox 9 News Channel, 7 March 2003: Morgenthau, Hans J., Human Rights and http://www.pm.gov.au/news/interviews/Intervie Foreign Policy. New York, Council on w261.html. Religious and International Affairs, 1979.

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Orwell, George, ‘A hanging’, in Shooting an Secretary-General, E/CN.4/2006/83, 10 elephant and other essays. London, Secker and February 2006: Warburg, 1953. http://www.ohchr.org/english/bodies/chr/sessio ns/62/listdocs.htm. The question of the death penalty: seventh quinquennial report of the Secretary-General to United Nations. General Assembly, 2005 the UN Economic and Social Council, 9 March World Summit Outcome, 15 September 2005: 2005, E/2005/3: http://daccessdds.un.org/doc/UNDOC/GEN/N0 http://www.un.org/docs/ecosoc/documents.asp? 5/487/60/PDF/N0548760.pdf?OpenElement. id=880. United Nations. Office of the High Roxon, Nicola, Call to action on anniversary of Commissioner for Human Rights, Second Death Penalty Protocol. Australian Labor Party optional protocol to the International media statement, 11 July 2006: Covenant on Civil and Political Rights, aiming http://www.alp.org.au/media/0706/msag110.php. at the abolition of the death penalty: http://www.unhchr.ch/html/menu3/b/a_opt2.htm. Roy Morgan Research, Australians divided over hanging of Van Nguyen. Finding No. ______, The question of the death penalty: 3947, 1 December 2005: Human Rights Resolution 2005/59: http://www.roymorgan.com/news/polls/2005/3 http://ap.ohchr.org/documents/E/CHR/resolutio 947/. ns/E-CN_4-RES-2005-59.doc.

Rudd, Kevin, Doorstop interview, 4 December Vincent, R. J., Human rights and international 2005: relations. Cambridge, Cambridge University http://www.alp.org.au/media/1205/dsifaistra04 Press, 1986. 0.php.

Soorian, A., Australia’s double standards. New Straits Times, 25 November 2005.

Stott-Despoja, Natasha, Senate Hansard, 28 November 2005, p.59: http://www.aph.gov.au/hansard/senate/dailys/ds 281105.pdf.

Teo, Laurel, To hang or not to hang? activists must be consistent. The Straits Times, 11 November 2005.

United Nations. Economic and Social Council, The question of the death penalty: report of the

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NOTES http://www.ohchr.org/english/bodies/chr/sessions/62/ 1 This Policy Brief uses statistics from Amnesty listdocs.htm; AI, Abolitionist and retentionist International (AI), which are generally regarded as countries: being authoritative and up-to-date: see AI, Facts and http://web.amnesty.org/pages/deathpenalty- figures on the death penalty : countries-eng. AI defines ‘abolitionist in practice’ as http://web.amnesty.org/pages/deathpenalty-facts-eng; including countries which retain the death penalty Abolitionist and retentionist countries: but have not executed anyone for a decade and are http://web.amnesty.org/pages/deathpenalty- believed to have a policy or established practice of countries-eng. United Nations (UN) estimates not carrying out executions. On the Philippines, see contain marginally different country counts, based David Cagahastian, Bill abolishing death penalty on a different definition of countries that are de signed – all death sentences now commuted to life, facto abolitionist: see The question of the death Manila Bulletin, 25 June 2006. penalty. Report of the Secretary-General to the UN 5 This Policy Brief examines capital punishment in Economic and Social Council, E/CN.4/2006/83, 10 Australian foreign policy. It does not deal with the February 2006: related issues of international criminal cooperation, http://www.ohchr.org/english/bodies/chr/sessions/62/ for example extradition, mutual legal assistance and listdocs.htm. police-to-police cooperation. 2 ‘Asia’ is defined as northeast, south and southeast 6 House of Representatives Hansard, 13 February Asia. AI, Abolitionist and retentionist countries: 2006, p.3: http://web.amnesty.org/pages/deathpenalty- http://www.aph.gov.au/hansard/reps/dailys/dr13020 countries-eng. 6.pdf. See also What we do: 3 AI, Facts and figures on the death penalty: :http://www.dfat.gov.au/dept/whatwedo.html. http://web.amnesty.org/pages/deathpenalty-facts-eng; 7 Other Australians are also in danger, although the The question of the death penalty, Seventh risk is less immediate than for these four. Dr Aggrey quinquennial report of the Secretary-General to the Kiyingi is on trial for murder in Uganda, but it had UN Economic and Social Council, 9 March 2005, been thought that if convicted he would be unlikely E/2005/3: to receive the death penalty. Recent media coverage, http://www.un.org/docs/ecosoc/documents.asp?id=8 however, appears to indicate that execution is a real 80, table 2 and paragraph 48. Earlier this year it was possibility. Henry Chhin is serving a ‘suspended reported that a Chinese legal scholar had estimated, death sentence’ in China, which will probably be based on information from local officials and judges, reviewed in September 2007 and either commuted or that approximately 8,000 people are executed in carried out. China each year: see China’s world record – 8,000 8 George Orwell, ‘A hanging’, in Shooting an dead? 1 March 2006: elephant and other essays. London, Secker and http://asiadeathpenalty.blogspot.com/2006/03/chinas Warburg, 1953, pp.13-14. See also Albert Camus, -world-record-8000-dead.html. Reflections on the guillotine. Michigan City, 4 The question of the death penalty. Report of the Fridtjof-Karla Publications, 1959; Arthur Koestler, Secretary-General to the UN Economic and Social Reflections on hanging. London, Victor Gollancz, Council, E/CN.4/2006/83, 10 February 2006, 1956; Hugo Adam Bedau and Paul G. Cassell, eds,

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Debating the death penalty: should America have http://www.bobbrown.org.au/600_media_sub.php?d capital punishment? The experts on both sides make eptItemID=1833; Senator Natasha Stott-Despoja, their best case. New York, Oxford University Press, Senate Hansard, 28 November 2005, p.59: 2004. http://www.aph.gov.au/hansard/senate/dailys/ds2811 9 Roy Morgan, Australians divided over hanging of 05.pdf. An official from the Nationals’ Federal Van Nguyen, Finding No. 3947, 1 December 2005: Secretariat indicated by private communication that http://www.roymorgan.com/news/polls/2005/3947/; the Nationals’ policy conforms with the Steve Lewis, Terrorists should die: poll – majority in Government’s. support of Amrozi execution, The Australian, 19 12 John Howard, Joint press conference with then August 2003, p.1. See also Patrick Carlyon, British Foreign Secretary Jack Straw, November Swinging voters, The Bulletin, 1 March 2006. 2003: 10 Second Optional Protocol to the International http://www.pm.gov.au/News/interviews/Interview56 Covenant on Civil and Political Rights: 4.html. http://www.unhchr.ch/html/menu3/b/a_opt2.htm. 13 A Policy Brief is not the appropriate venue for a Australia acceded to the Protocol on 2 October discussion of the relationship between values, 1990, however it has not yet been incorporated into interests and foreign policy. However Owen Harries Australian domestic law by an Act of the Australian was surely correct when he argued in his recent Parliament. elegant survey that the ‘characteristic fault of realism 11 Department of Foreign Affairs and Trade, Human is that it believes the application of a morality to Rights Manual. Canberra, Commonwealth of foreign policy to be negligible, if not entirely Australia, 2004, p.33: irrelevant.’ E.H. Carr argued similarly that ‘it is an http://www.dfat.gov.au/hr/hr_manual_2004/hr_man unreal kind of realism which ignores the element of ual.pdf; John Howard, Interview with Neil Mitchell, morality in any world order.’ Harries followed Radio 3AW, 2 December 2005: Edmund Burke, Hans J. Morgenthau and others in http://www.pm.gov.au/news/interviews/Interview170 advocating a morality of prudence. Some realist 9.html; Alexander Downer, House of scholars allow that human rights advocacy, for Representatives Hansard, 14 February 2006, p.3: example, has a legitimate place in diplomacy so long http://www.aph.gov.au/hansard/reps/dailys/dr14020 as it is not pursued in a categorical or absolute way; 6.pdf; Kim Beazley, Interview with Philip Clark, sometimes it can even promote other state interests. Radio 2GB, 14 February 2006: Jack Donnelly has argued persuasively that realism http://www.alp.org.au/media/0206/riloo141.php; ‘provides no good theoretical ground for excluding Kevin Rudd, Doorstop interview, 4 December 2005: human rights before the fact. In certain (contingent) http://www.alp.org.au/media/1205/dsifaistra040.php; circumstances it may be unwise to pursue human see also Nicola Roxon, Call to action on anniversary rights, but that must be determined empirically, case of Death Penalty Protocol, media statement 1 July by case.’ See Owen Harries, Morality and foreign 2006: policy. Sydney, CIS Occasional Paper 94, 2005, http://www.alp.org.au/media/0706/msag110.php. p.23; E.H. Carr, The twenty years’ crisis 1919-1939: Regarding Democrat and Green opposition to an introduction to the study of international capital punishment, see: Government doesn’t abhor relations. London, Macmillan, 1970, p.235; Hans J. death penalty, 29 November 2005: Morgenthau, Politics among nations: the struggle for

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power and peace. , 6t h rev ed. New York, McGraw- differentiating between cases, see Owen Harries, Hill, 1985, pp.10-11, 14-15, 236-237; Hans J. Morality and foreign policy, p.18. Morgenthau, Human rights and foreign policy. New 20 John Howard, Interview on Sunday Sunrise, York, Council on Religious and International Channel 7, 16 February 2003: Affairs, 1979, p.6; Jack Donnelly, Universal human http://www.pm.gov.au/news/interviews/Interview244 rights in theory and practice. Ithaca, Cornell .html; John Howard, Interview on Fox 9 News University Press, 1989, p.232. Channel, 7 March 2003: 14 See e.g. Wilson Loo Kok Wee, Australians http://www.pm.gov.au/news/interviews/Interview261 shouldn’t get special treatment, The Straits Times, .html. 30 November 2005; Pauline Ooi Chen Ni, Does 21 Mark Latham quoted on Lateline, ABC Television, Aussie passport put one above law? The Straits 9 August 2003: Times, 23 November 2005; A. Soorian, Australia’s http://www.abc.net.au/lateline/content/2003/s92063 double standards, New Straits Times, 25 November 8.htm. 2005. 22 Mark Latham and John Howard quoted on The 15 Alexander Downer, List of representations to World Today, ABC Radio, 15 December 2003: Singapore Ministers and President, 28 November http://www.abc.net.au/worldtoday/content/2003/s10 2005: 10314.htm. Other examples are cited in Lex Lasry, http://www.foreignminister.gov.au/releases/2005/ngu Australia and the death penalty – Are we really yen_van_tuong_representation_singapore.html. against it? Costello Lecture, Monash University, 29 16 DFAT provides general consular assistance to March 2006. Australian citizens and permanent residents equally, 23 Warren Fernandez, Real villains in Nguyen case, with the exception of some financial transactions The Straits Times, 3 December 2005. See also Laurel such as prisoner loans. Australian permanent Teo, To hang or not to hang? Activists must be residents sentenced to death are dealt with in exactly consistent, The Straits Times, 11 November 2005. the same way as Australian citizens. 24 On South Korea, see e.g. Hearing on death 17 ‘Michelle Grattan, Airline row linked to Nguyen, penalty, The Korea Herald, 3 April 2006; Jin Dae- The Age, 24 November 2005, p.1; Greens say woong, Former President Kim calls for end to death increase pressure on Singapore, AAP, 27 November penalty, The Korea Herald, 27 February 2006; 2005. Debates rekindled on death penalty, The Korea 18 See e.g. Resolution 2005/59 at the Commission on Times, 23 February 2006. On Malaysia, see e.g. Human Rights: Malaysian law minister supports abolishing death http://ap.ohchr.org/documents/E/CHR/resolutions/E- penalty, Dow Jones International News, 21 March CN_4-RES-2005-59.doc. Abolitionist resolutions are 2006. generally put in similar terms in several UN forums 25 These kinds of limitations are included in the including the Commission on Human Rights (now various UN resolutions on capital punishment, e.g. replaced by the Human Rights Council) and the Resolution 2005/59 at the Commission on Human Economic and Social Council. Rights: 19 R.J. Vincent, Human rights and international http://ap.ohchr.org/documents/E/CHR/resolutions/E- relations. Cambridge, Cambridge University Press, CN_4-RES-2005-59.doc. 1986, p.136. On the importance of judgment in

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26 Report of the Canberra Commission on the Elimination of Nuclear Weapons. Canberra, Australian Government, 1996: http://www.dfat.gov.au/cc/cchome.html. 27 See 2005 World Summit Outcome, 15 September 2005, paragraphs 138-139: http://daccessdds.un.org/doc/UNDOC/GEN/N05/48 7/60/PDF/N0548760.pdf?OpenElement.

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