Mai Sato  | 28 February 2023

Statement of Ms. Mai Sato delivered during the 52nd session of the Human Rights Council: Biennial high-level panel discussion on the question of the death penalty, 28 February 2023 (broadcast live and archived on https://media.un.org/en/webtv)

Theme: Human rights violations relating to the use of the death penalty, in particular with respect to limiting the death penalty to the most serious crimes

Mr President and distinguished delegates. It is an honour to be part of the biennial high-level panel discussion on the question of the death penalty.

I grew up in a country where the death penalty has mainly been applied for murder and where the death penalty has long signified ‘justice’ for the victims’ families. Growing up, I never doubted the existence or the necessity of the death penalty as a form of criminal punishment. But having spent the last two decades in countries without the death penalty, my sensibilities about what constitutes justice have changed, as well as my understanding of the social and political functions that the death penalty serves. I now take the view—together with more than half of the countries in the world—that the death penalty is unnecessary for all crimes, including intentional killing.

Today, I speak as an academic. I am the inaugural Director of Eleos Justice—a research unit on the death penalty in Asia based at Monash University in Australia. I’m also here today as Deputy Director of CrimeInfo, an anti-death penalty NGO based in Japan.

In the time allocated to me, I will make five points on restricting the death penalty to the most serious crimes.

First, of the 79 countries that retain the death penalty under law, only two—Jamaica and Saint Vincent and the Grenadines—follow the international standard of restricting the death penalty to the most serious crimes defined as intentional killing. In the remaining 77 countries, the death penalty is permitted for an array of offences: from victimless crimes to terrorism, sexual offences and economic crimes. In these countries, these laws may be old laws that were never repealed or laws that are intended to serve a symbolic function to denounce a wrong. Whatever the reason, the fact remains that state-sanctioned killing is kept as a form of punishment for offences that fail to meet the ‘most serious’ criterion.

Second, some of these capital offences should not be criminalised at all. For example, the criminalisation of adultery, same sex sexual acts and blasphemy or apostasy—let alone the imposition of the death penalty for these acts—are not only contrary to the right to life but are contrary to women’s rights, right to equality before the law without discrimination, and freedom of religion.  Despite this, adultery, so-called religious offences, and same sex sexual acts are punishable by death in 11 countries. While known numbers of executions for these offences are small, our research has found that in at least two countries executions have been carried out for same sex sexual acts and for religious offences.

However, focusing on the number of executions misses the point about the operationalisation of the death penalty. In countries where these offences remain a capital offence, either through codified laws or prescribed by unwritten Shari’a law, the State is declaring those who engage in consensual sexual relations outside marriage, engage in same-sex sexual act, or leave their religion are deserving of death. These declarations also have a trickle-down effect within the community, legitimising vigilantism and honour killings.

Third, at least in 38 countries, rape is a capital offence. Several countries have amended their penal codes to introduce capital rape offences in response to high profile cases of rape. These laws have been justified as ‘protecting’ women, but the reverse is true: capital rape laws use the language of women’s rights to violate the right to life.

Fourth, executions are regularly carried out for drug-related offences, which clearly fail to meet the ‘most serious’ criterion. Drug offences can be punishable by death in 35 countries and between 2010 and 2020, at least over 4,000 people have been executed for these offences. Instead of disrupting drug cartels, capital drug laws in practice operate to punish ‘drug mules’, who are typically recruited from marginalised groups with intersecting vulnerabilities, and easily replaced.

Fifth and finally, retentionist countries may cite religion, popular public support, or deterrence as barriers for moving away from the death penalty. Various UN platforms allow us to imagine a different kind of justice system to our own. For example, there are countries where Islam is the State religion, but they do not prescribe the death penalty for religious offences, showing that the Qur’an embraces religious freedom. As for deterrence, I won’t go into detail concerning the deterrent effect of the death penalty as this topic was covered at the Council’s previous panel discussion. I will simply state that where retentionist governments quote overwhelming public belief in the deterrent effect of the death penalty, my response is that whether the death penalty deters offending compared to other punishments is an empirical question. It does not depend on whether the public believes in its deterrent effect. More generally on public opinion, many surveys that claim strong public support for the death penalty fail to explore the considerable public acceptance of, and tolerance for, abolition, if governments were to take leadership on this matter.

To conclude, the discussion on the ‘most serious crimes’ standard is not limited to countries that retain the death penalty for drug offences—though this deserves attention precisely because it is an area where executions are most actively carried out. But judicial executions are only one of the functions of the death penalty. The death penalty is a symbol of the States’ lethal control over its citizens. By retaining the death penalty under law, States declare that some offenders must be eliminated and acknowledge that killing human beings forms part of their justice system. All retentionist States—from those whose capital laws have not been in use for a long time to those that execute—can take active steps to further restrict the death penalty in their jurisdictions, taking seriously the ‘most serious crimes’ standard.

Mai Sato is Associate Professor at the Faculty of Law at Monash University, Director of Eleos Justice, and Deputy Director of CrimeInfo