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Around the World, Across the Political Spectrum

Denied Justice and Discriminated in the Face of Death – Foreign Nationals and the Death Penalty


By Ruth Dreifuss and Federico Mayor

(Geneva, 3 March 2014) Few would disagree that justice should be blind, or that the rule of law should not tolerate discrimination. Yet the harsh reality for those countries still resorting to capital punishment is that discrimination – against the poor, the vulnerable or minorities – and the death penalty often go hand in hand.

Frequently in the frontline of such injustice are migrant workers and other foreign nationals languishing on death row abroad – their cases fueling diplomatic discord, international controversy and posing the question of how nations can best defend the rights of their nationals who face the ultimate human rights abuse.

Such issues were recently highlighted by the execution of 46-year-old Mexican national Edgar Tamayo Arias in the US state of Texas. In the spotlight was the violation of the Vienna Convention on Consular Relations, to which the US is a State Party. Under this global treaty, foreign nationals must be notified “without delay” of their right to inform their consulate when detained.

When arrested, Edgar Tamayo – subsequently diagnosed with “mild mental retardation” – was not informed of his right to consular assistance, and so the Mexican authorities could not secure adequate defense counsel for him. Instead, Mr. Tamayo’s trial was marked by concerns about the quality of defense from his court-appointed lawyer.

In 2004, the International Court of Justice ruled that the US had violated the Vienna Convention in the case of 51 people sentenced to death, including Mr. Tamayo. The court ordered the US to review the convictions to establish whether the defense of these people had been harmed. For Edgar Tamayo, this never happened. Despite the court’s ruling and despite requests for a stay of execution by the US State Department and the Mexican government, he was executed by lethal injection on 22 January this year.

This was not an isolated failure of justice. Since the US reinstated capital punishment in 1976, its states have executed 28 other foreign nationals, often despite diplomatic calls for clemency. According to the Death Penalty Information Center, in all but one of these cases the authorities failed to comply with the Vienna Convention.

At the International Commission against the Death Penalty – an independent body opposed to capital punishment, led by a group of high-profile commissioners from around the world – we repeatedly see capital punishment’s injustices and cruelty exposed by the plight of foreign nationals globally.

Sri Lankan national Rizana Nafeek was beheaded in Saudi Arabia in January 2013. She did not receive legal representation until after being sentenced to death, and was charged with murder based on a “confession” that she later retracted, stating it was made under duress. When her alleged crime took place, Ms Nafeek was, according to her birth certificate, just 17 yearss old. Her execution was carried out despite Saudi Arabia being party to the UN Convention on the Rights of the Child, which bans imposition of capital punishment on those aged under 18 at the time of the offence.

In 2013, of five executions ending a four-year hiatus in Indonesia’s use of the death penalty, two were of foreign nationals. Adami Wilson, believed to be from Malawi, and Muhammad Abdul Hafeez from Pakistan were executed by shooting in March and November respectively. These executions were carried out even while the Indonesian government took positive steps to prevent executions of its own nationals abroad.

As greater numbers of their nationals work abroad, countries retaining capital punishment will face the same dilemma as Indonesia. Hundreds, perhaps thousands, of foreign nationals are under death sentences in countries that still have the death penalty.

So how can countries best protect their nationals from the ultimate punishment overseas? As the cases above demonstrate, there are no easy answers. Nor are such questions only of concern to abolitionist nations. Yet it is clear that the death penalty causes injustice and harm. Its cruelty, ineffectiveness as a crime deterrent and risk of executing the innocent leave it with no place in the modern era.

The vulnerability of foreign nationals sentenced to death is just one challenge to be met as we move towards a death penalty free world. Other major stumbling blocks include the actions of a small group of nations – China, Iran, Iraq, North Korea, Saudi Arabia, the US and Yemen – who remain the world’s most prolific executioners.

Yet change is in the air. The global trend is towards abolition of the death penalty. According to the UN, more than 150 countries have now rejected the death penalty or do not execute.

In December, the UN will be voting for a resolution calling for moratorium on the death penalty. Its previous four resolutions have each gathered increased global support. The same month will also mark the 25th anniversary of the adoption of the Second Optional Protocol to the International Covenant on Civil and Political Rights – the only treaty with worldwide scope to abolish capital punishment in all situations.

Both of these milestones are opportunities for the world’s nations to send a powerful political and moral message that capital punishment should be abolished everywhere.

It is timely, then, that as the United Nations Human Rights Council meets in Geneva this week, a gathering of high-level government representatives – including foreign ministers from the Americas and Europe together with the Office of the UN High Commissioner for Human Rights – will meet to share experiences on capital punishment.

We are pleased to be part of this important meeting, which aims to identify effective ways to protect foreign nationals from the threat of capital punishment and to progress to a more civilized future in which capital punishment has no place.

The writers are members of the International Commission against the Death Penalty (www.icomdp.org), an independent body of eminent people supported by a diverse group of 18 governments. Ruth Dreifuss is former President of the Swiss Confederation. Federico Mayor is President of ICDP and former Director General, UNESCO and former Minister of Education and Science of Spain.


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